Opinion
No. CV 02-0079345S
July 31, 2003
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT ENFORCING SETTLEMENT AGREEMENT (106)
Introduction
This is an appeal from a decision by the Inland Wetlands Commission of the Town of Vernon approving the application of Richard Hayes, Jr., doing business as Hayes-Conyers Partnership, for approval of regulated activities associated with construction at his property at 70 Reservoir Rd., Vernon, Connecticut. By motion dated March 19, 2003, the plaintiff has moved for judgment in accordance with the settlement agreement entered into with the defendant and stipulated to in court on December 19, 2002. The plaintiff claims that counsel for the parties had agreed to resolve the matter by a withdrawal of the action by the plaintiff and execution of releases by the defendants. A hearing on the motion was held on April 7, 2003 at which time the court heard testimony from Fatima Lobo, counsel for the plaintiff; Stanley Falkenstein, counsel for the Hayes-Conyers Partnership; and Richard P. Hayes, managing partner of the Hayes-Conyers Partnership. Post hearing memoranda were filed by the parties on April 14, 2003.
Findings of Facts
From the evidence presented the following facts are found.
Sometime in the fall of 2002, Attorney Lobo indicated to Attorney Falkenstein that she was contemplating withdrawing this action but she needed to first review the record. There was no clear indication by her at that time that a withdrawal would be contingent on the defendants' execution of general releases. Falkenstein knew that it was customary that releases be executed by the parties when a case is withdrawn. In light of this, Falkenstein did not object when Lobo, at a call of the case on December 19, 2002, stated to the court that Falkenstein was going to give her some releases and she intended to file a motion for permission to withdraw the matter. Not until the next day did Falkenstein CT Page 8722-i discuss the issue of releases with his client. Hayes then indicated that he would not agree to a release. Hayes never gave Falkenstein authority to agree to a release of his claims against the plaintiff.
Discussion
In Audubon Assoc. Ltd. Partnership v. Barclay Stubbs, 225 Conn. 804, 812 (1990), the Court stated: "We hold that a trial court may summarily enforce a settlement agreement within the framework of the original lawsuit as a matter of law when the parties do not dispute the terms of the agreement." In Audubon the settlement agreement had been outlined and agreed to by the parties on the record in court.
The plaintiff claims that the defendant's attorney had authority to enter into the settlement but that the defendant simply later had a change of mind. The testimony of Hayes clearly established that he had not, at any time, given any authority to Falkenstein to issue any releases to the plaintiff.
The plaintiff claims that even if Falkenstein did not have express authority to settle the case the court may still enforce the agreement based on his actual authority. The plaintiff cites Monroe v. Monroe, 177 Conn. 173, 181 (1979), in support of its position. There the court stated: "It is hornbook law that clients generally are bound by the acts of their attorneys." But this statement was made in the context of the Court's review of the plaintiff's claim that her divorce should not have been referred to a state referee without her consent where the statute allowed such reference by consent of the parties or their counsel. To the contrary, "[t]he rule is almost universal that an attorney who is clothed with no other authority than that arising from his employment in that capacity has no implied powers by virtue of his general retainer to compromise and settle his client's claim or cause of action, except in certain conditions of emergency. Either precedent special authority from the client or subsequent ratification by him is essential in order that a compromise or settlement by an attorney shall be binding on his client. 5 Am.Jur. 319." Cole v. Myers, 128 Conn. 223, 227 (1941). This position has been subsequently reaffirmed by our Supreme Court. In Acheson v. White, 195 Conn. 211, 218, fn. 4 (1985), the court noted: "An attorney who is authorized to represent a client in litigation does not automatically have either implied or apparent authority to settle or otherwise to compromise the client's cause of action. Cole v. Myers, 128 Conn. 223, 228, 21 A.2d 396 (1941); National Bread Co. v. Bird, 226 Ala. 40, 42, 145 So. 462 (1933); Fresno v. Baboian, 52 Cal.App.3d 753, 758, 125 Cal.Rptr. 332 (1975); Rushing v. Garrett, 375 So.2d 903, 905-08 (Fla.App. 1979); Dragstra v. Northwestern State Bank of Orange City, CT Page 8722-j 192 N.W.2d 786, 790-91 (Iowa 1971); In re Conservatorship of Hatfield, 231 Kan. 427, 428-29, 646 P.2d 481 (1982); De Long v. Owsley's Ex'x, 308 Ky. 128, 130, 213 S.W.2d 806 (1984 ); Kinkaid v. Cessna, 49 Md. App. 18, 22-23, 430 A.2d 88 (1981); State Bar Grievance Administrator v. Estes, 390 Mich. 585, 600, 212 N.W.2d 903 (1973); Gibson v. Nelson, 111 Minn. 183, 187-89, 126 N.W. 731 (1910); Couch v. Landers, 316 S.W.2d 588, 592-94 (Mo. 1958); Vaughn v. Robbins, 254 Mass. 35, 36, 149 N.E. 677 (1925); Morgan v. Hood, 211 N.C. 91, 92-93, 189 S.E. 115 (1937); National Valve Mfg. Co. v. Wright, 205 Okla. 571, 572-73, 240 P.2d 766 (1951); Archbishop v. Karlak, 450 Pa. 535, 539, 299 A.2d 294 (1973); Northwest Realty Co. v. Perez, 80 S.D. 62, 65-66, 119 N.W.2d 114 (1963); Noska v. Mills, 141 S.W.2d 429, 432 (Tex.Civ.App. 1940); Watt v. Brookover, 35 W. Va. 323, 327, 13 S.E. 1007 (1891); contra, Phoenix Properties of Atlanta, Inc. v. Umstead, 245 Ga. 172, 172, 264 S.E.2d 8 (1980); Bergman v. Rhodes, 334 Ill. 137, 142-43, 165 N.E. 598 (1929); McNelis v. Wheeler, 225 Ind. 148, 154-55, 73 N.E.2d 339 (1947); Lord Jeff Knitting Co. v. Mills, 281 S.C. 374, 376-77,315 S.E.2d 377 (1984); Holler v. Wallis, 89 Wash.2d 539, 547, 573 P.24 1302 (1978)." In Acheson, cited by the plaintiff, the court rejected an attempt to reopen a stipulated judgment where the court found that the party who sought to reopen the judgment had consented to its terms.
Subsequent Superior Court decisions have relied on Cole as well when considering a request to enforce a settlement. For example, in Savings Bank of Rockville v. Garofalo, judicial district of Tolland at Rockville, Docket No. CV 93 54167 S (Feb. 28, 1997, Hammer, J.), the court rejected the defendant's claim that an agreement reached between counsel constituted an accord and satisfaction of the plaintiff's claim. There the court stated: "Suggestions made in the course of negotiations by attorneys between themselves do not constitute definite offers where the minds of the parties themselves have not met in any definite agreement. Peerless Soda Fountain Service Co. v. Savin, 117 Conn. 1, 4-5 (1933). Moreover, an attorney `has no implied powers by virtue of his general retainer to compromise and settle his client's claim or cause of action [and either] precedent special authority from the client or subsequent ratification by him is essential in order that a compromise or settlement by an attorney shall be binding on his client.' Cole v. Myers, 128 Conn. 223 at 227 (1941)."
Cole was followed more recently in Moore v. State, judicial district of Hartford at Hartford, Docket No. CV 95-0553888S (August 29, 2000, Berger, J.), where the court rejected an attempt to enforce a settlement which had been agreed to by counsel but not by the plaintiff himself. Once again quoting Cole, the court stated: "`Either precedent special authority from the client or subsequent ratification by him is essential CT Page 8722-k in order that a compromise or settlement by an attorney shall be binding on his client.' Cole v. Myers, 128 Conn. 223, 227, 21 A.2d 396 (1941). Thus, the settlement reached by counsel in this case is not, as the defendant suggests, automatically binding upon the plaintiff. Instead, `[a] common intention or meeting of the minds of the negotiating parties themselves is essential to the making of an accord, and where one party understands an agreement of settlement to be one thing, and the other party understands it to be another, there is no meeting of the minds of the parties, regardless of what the attorney conducting the negotiations believes to be his client's understanding.' (Emphasis added.) Savings Bank of Rockville v. Garofalo, Superior Court, judicial district of Tolland at Rockville, Docket No. 54167 (February 28, 1997, Hammer, S.T.R.); see also Sciremammano v. HW Hideaway Cafe, Superior Court, judicial district of New London at New London, Docket No. 515845 (April 6, 1993, Hurley, J.)."
Similarly, in Windsor Housing Authority v. Fonsworth, Hartford judicial district housing session, Docket No. HDSP-107882 (June 28, 2000, Tanzer, J.), 27 Conn.L.Rptr. 386, the court rejected the defendant's motion to enforce a stipulated judgment where the stipulation had been entered into by counsel but the plaintiff had not authorized his doing so. There the court expanded on Cole in response to the defendant's claim that the plaintiff's counsel had apparent authority to enter into the stipulation and held that pursuant to Cole: "The only `previous acts' that can give rise to a grant of authority are, therefore, acts granting precedent special authority . . . The only other acts that can make the agreement binding pursuant to the rule of Cole are subsequent acts that ratify the attorney's act of signing the agreement." The court held that since there was no evidence that the plaintiff had granted previous special authority to his counsel to enter into the stipulation on his behalf or that the plaintiff had ratified the stipulation, the defendant's motion to enforce the stipulated judgment must be denied.
The plaintiff also cites Albrecht v. Albrecht, Superior Court Housing Court Judicial District of New Britain at New Britain, Docket No. CVN-9805-1679 (April 19, 2002, Crawford, J.), for the proposition that Falkenstein's course of action provides the court with a basis from which to infer his authority to enter into the settlement on his client's behalf. In Albrecht the court held that the defendant had held out his attorney as being authorized to act on his behalf in agreeing to release a mortgage. "`Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.' Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665, 228 A.2d 803 (1967), citing Quint v. O'Connell, 89 Conn. 353, 357, 94 A. 228 (1915). Consequently, apparent CT Page 8722-l authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal. Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969)." Tomlinson v. Board of Education, 226 Conn. 704, 734 (1993). Here there is no evidence that Hayes had held out Falkenstein as authorized to bind him to a resolution of this matter on his behalf which included the execution of releases if the case was withdrawn. In light of the well-established principle that an attorney has no implied powers by virtue of his general retainer to compromise and settle his client's claim or cause of action, such authority cannot be inferred simply from Hayes' engagement of Falkenstein in this or related matters.
This case is not one where, as the plaintiff claims, a party has simply had a change of mind. Here the defendant himself had not authorized his attorney to settle this matter pursuant to a withdrawal and release nor had he agreed to such.
Therefore the motion is denied and this matter shall be placed on the list for the next call of administrative appeals so that a briefing schedule can be set.
Jane S. Scholl, J. CT Page 8722-m