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NATHAN v. CLO. DUCT VENT CLG.

Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
Sep 29, 2009
2009 Ct. Sup. 19664 (Conn. Super. Ct. 2009)

Opinion

No. X09 CV 06 5005942

September 29, 2009


MEMORANDUM OF DECISION


I

Pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs Inc., 225 Conn. 804, 626 A.2d 729 (1993), the defendant, Calco Building Maintenance Corporation, seeks to enforce a settlement agreement allegedly reached between it, the plaintiff, Lucy Nathan, and the intervening plaintiff, Clean Harbors Environmental Services, Inc. (Clean Harbors), on January 22, 2009. The defendant argues that this court should enforce the agreement in which the plaintiff agreed to accept $250,000 in return for releasing her tort claims against the defendant despite the plaintiff's refusal to sign the release.

Clean Harbors, the plaintiff's employer at the time the alleged personal injuries were sustained, filed a motion to intervene on January 17, 2006 because it was obligated to pay workers' compensation benefits to the plaintiff pursuant to the Connecticut Workers' Compensation Act. The motion to intervene was granted on March 28, 2006.

On May 13, 2009, this court heard testimony in connection with this motion which revealed that there were no material facts in dispute about the specifics of the agreement. Both counsel for the defendant, Deborah Etlinger, and for the plaintiff, Bruce Rubenstein, testified that the agreement was reached on January 22, 2009, that the court was notified that the case had been settled and that the relevant documents would be exchanged. Indeed, a letter from Rubenstein to Etlinger, dated January 23, 2009, stated "[e]nclosed please find our Withdrawal [of the action] . . . Please hold this Withdrawal in escrow pending receipt of the check." The withdrawal form was introduced into evidence along with a confirmation letter, dated January 23, 2009, from Etlinger to Rubenstein and Colette Griffin, one of Clean Harbors' attorneys, stating in part "[t]his letter will confirm the settlement agreement which was reached yesterday . . ." Etlinger testified that neither Rubenstein or Clean Harbors' attorneys called her to indicate that her recitation of the agreement was inaccurate. On January 26, 2009, Rubenstein sent an email to Etlinger directing her to make full payment in the amount of Clean Harbors' lien to Griffin and to send the plaintiff's payment to Rubenstein's firm. The attorneys then exchanged drafts of documents and Rubenstein testified that he discussed those drafts with the plaintiff who insisted that a confidentiality clause be deleted from the release. Rubenstein also testified that he worked with the plaintiff to reduce the amount of the Clean Harbors' lien. Melissa Federico, an attorney for Clean Harbors, sent a confirmation letter to Rubenstein, dated February 10, 2009, to confirm the revised amount of the lien and that was conveyed to Etlinger who then emailed Rubenstein and Federico on February 13, 2009 to advise them that she had revised the release. On March 4, 2009, Etlinger was notified that the plaintiff would not sign the release and, on March 6, 2009, the plaintiff sent an email to Etlinger, with a copy to Rubenstein, stating that she was forced to agree to the settlement and that she had filed a grievance against her attorney.

After hearing this testimony and reviewing the documents in evidence, this court, with agreement from the plaintiff and Rubenstein, discharged Rubenstein as her attorney. The court then continued this matter for the plaintiff to find new counsel. The hearing was continued to June 29, 2009 at which time the plaintiff, unable to retain a new attorney, appeared as a self-represented party.

At the continuation of the hearing on June 29, 2009, the focus changed from a discussion of the negotiation and terms of the agreement to the alleged duress placed on the plaintiff by Rubenstein to agree to the settlement. The plaintiff testified that she was told by Rubenstein that a decision to accept the settlement had to be made by 5 p.m. on January 22, 2009. Moreover, she stated that she was displeased with the manner in which Rubenstein was handling the case; she felt the settlement amount was too low; and she believed Rubenstein would ask for additional amounts of money to try the case or would withdraw his appearance if she did not agree to the settlement. Additionally, the plaintiff testified that Rubenstein stated that if he withdrew the court might continue the matter or might dismiss the matter. She further stated that she spent the afternoon of January 22, 2009 on the telephone trying to find another attorney and talking to the attorney general's office about Rubenstein, but admitted that she consented to the settlement the same afternoon.

Rubenstein testified that the discussion about withdrawing his appearance came as a result of certain threats the plaintiff made against one of Clean Harbor's attorneys and the plaintiff's contact with the grievance committee concerning him. He also noted that Etlinger had said that she needed a decision by 5 p.m. on January 22, 2009 to allow her enough time to prepare for trial. He further testified that he discussed the liability, causation, damages and evidentiary issues of the case with the plaintiff, including that Etlinger would challenge the admissibility of the testimony of the plaintiff's proposed expert, and that if the plaintiff lost the case there would be substantial financial costs which would have to be borne by her.

Upon review of the file after the hearing, this court sent a notice on July 16, 2009 to the parties that there were three letters from the plaintiff entered on the docket as pleadings in the case, but not served on the defendant and Clean Harbors. These documents were subsequently provided to the defendant and Clean Harbors. On July 21, 2009, the defendant filed an objection to the admissibility of these letters as to the motion to enforce the settlement. The defendant argued, in part, that they were duplicative of documents that the plaintiff sought to introduce into evidence during the hearing on the motion that this court found inadmissible. This court heard oral argument on the defendant's objection on September 1, 2009 and agreed with the defendant in part. Therefore, this court considered the letter from the plaintiff filed March 23, 2009 (#162.00), but did not consider two other letters filed May 1, 2009 (#163.00) and May 7, 2009 (#164.00).

II

"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 . . . Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit . . .

"Summary enforcement is not only essential to the efficient use of judicial resources, but also preserves the integrity of settlement as a meaningful way to resolve legal disputes. When parties agree to settle a case, they are effectively contracting for the right to avoid a trial. The asserted right not to go to trial can appropriately be based on a contract between the parties . . . The essence of that right [cannot] be vindicated effectively after the trial has occurred . . . To hold that a jury trial is a necessary predicate to enforcement of a settlement agreement would undermine the very purpose of the agreement. 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." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Audubon Parking Associates Ltd Partnership v. Barclay Stubbs, Inc., supra, 225 Conn. 811-12.

It is undisputed that the terms of the settlement agreement are clear and unambiguous and that the plaintiff assented to the settlement. The plaintiff argues, however, that her consent to the settlement was procured under duress imposed by Rubenstein.

It should also be noted that the plaintiff does not argue that her counsel lacked authority to accept the settlement on her behalf.

Although there is no appellate authority adopting § 175(2) of the Restatement of Contracts (Second), at least one Superior Court has addressed a claim of duress induced by a non-party pursuant to § 175(2). See Vance v. Tassmer, Superior Court, judicial district of New Haven, Docket No. CV 06 4022908 (May 8, 2008, DeMayo, J.T.R.), appeal dismissed, 115 Conn.App. 696 (2009). Section 175(b) provides: "If a party's manifestation of assent is induced by one who is not a party to the transaction, the contract is voidable by the victim unless the other party to the transaction in good faith and without reason to know of the duress either gives value or relies materially on the transaction." (Emphasis added.) 1 Restatement (Second), Contracts § 175(2) (1981).

In the present case, it is undisputed that the defendant did not know of the plaintiff's alleged duress until March 4, 2009 — weeks after the plaintiff had agreed to the settlement. Additionally, the defendant materially relied upon the representation that the case had settled by ceasing preparation for trial and by negotiating with the plaintiff to remove the confidentiality clause from the release. Therefore, the defendant's motion to enforce the settlement should be granted pursuant to § 175(2).

Nevertheless, because no appellate authority has adopted this section, this court also examines the plaintiff's alleged duress under the traditional analysis. "It has been recognized that [c]ontracts signed under an attorney's threat to withdraw from the case [are voidable] because of undue influence and the relatively helpless situation of the client, who would otherwise be forced into the often impractical alternative of starting all over again with another attorney who is unfamiliar with the case." (Internal quotation marks omitted.) Updike, Kelly Spellacy, P.C. v. Beckett, 269 Conn. 613, 653, 850 A.2d 145 (2004). "[A]lthough the undue influence and duress doctrines are separate and distinct, they often are treated and discussed together." Noble v. White, 85 Conn.App. 233, 236 n. 2, 857 A.2d 362 (2004) (stating that it was not improper for the trial court to treat special defense of undue influence as duress).

"Undue influence is the exercise of sufficient control over the person, the validity of whose act is brought in question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised." (Internal quotation marks omitted.) Reynolds v. Molitor, 184 Conn. 526, 528, 440 A.2d 192 (1981). "The classical or common law definition of duress is any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition." (Internal quotation marks omitted.) Jenks v. Jenks, 34 Conn.App. 462, 465, 642 A.2d 31 (1994), rev'd on other grounds, 232 Conn. 750, 657 A.2d 1107 (1995).

In Cox v. Burdick, 98 Conn.App. 167, 177-78, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006), the court discussed duress in the context of a stipulated judgment. "A stipulated judgment . . . is not voidable on the ground that it was accepted with reluctance, so long as its procurement was not the result of fraud, duress, or mistake . . . To conclude that a stipulated judgment resulted from duress, the finder of fact must determine that the misconduct of one party induced the party seeking to avoid the stipulated judgment to manifest assent thereto, not as an exercise of that party's free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be . . . For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will." (Citation omitted; internal quotation marks omitted). Id.

The plaintiff brought this toxic tort litigation against the defendant, and the owners of the premises, William Delfino and Thomas Delfino, alleging that she was severely and permanently injured from exposure to the chemicals, including a cleaning agent commonly known as Breakaway, the defendant used in cleaning the duct work in the building where she was employed at 761 Middle Street in Bristol. At the hearing on this motion, this court heard a variety of testimony concerning Rubenstein's analysis of the potential problems with the suit, including: a reference that the Occupational Safety and Health Administration could not find a causal connection; that the defendant would file a motion challenging the testimony of the plaintiff's expert; that there were liability and causation issues, that there was a concern of a significant bill of costs; that the plaintiff had made threats against one of Clean Harbors' attorneys; and that the discussion of the withdrawal of his appearance occurred as a result of the threats and with the belief that the parties had settled the case. Rubenstein averred that he discussed all of these matters with his client.

On December 6, 2006, Judge Shortall granted summary judgment in favor of the Delfinos on the grounds that there was no genuine issue of material fact that, under their lease with Clean Harbors, they did not retain control of the premises.

The plaintiff testified that she had significant future medication costs and that the proposed settlement would not compensate her sufficiently, especially with the workers' compensation lien credited against her award. She believed she had a strong case that she would win. This court presumes this belief was in direct conflict with Rubenstein's opinion and advice. As mentioned, she was concerned by Rubenstein's threat to withdraw his appearance — especially because he told her that the court might dismiss her case.

This obviously is not the first — nor the last — time the reality of an upcoming trial hits both attorney and client during settlement discussions. It appears that Rubenstein was concerned with proving the case and the plaintiff was either not hearing him or was simply refusing to believe that she would not be successful. Indeed, Rubenstein testified that he was concerned about the possible bill of costs that might total $50,000 and advised the plaintiff that she would be responsible. The plaintiff heard this as a demand, four weeks before trial, that Rubenstein wanted $50,000 to try the case. She was also dissatisfied with his trial tactics, especially his failure to depose other persons who were impacted by the alleged chemical exposure, while he did not want to incur the expenses of discovery pending settlement. He testified that the attorneys had reached an informal agreement that, notwithstanding the court's discovery order, they would not seek to enforce the discovery time limitations while they were negotiating.

The plaintiff testified that she believed she had no reasonable alternative but to agree to settlement in light of the circumstances as she perceived them to be on January 22, 2009. Nevertheless, her actions belie her claim of duress. "[T]he person claiming duress must act promptly to repudiate the contract or release or he will be deemed to have waived his right to do so . . . If the releasing party does not promptly repudiate the contract or release, he will be deemed to have ratified it. A party may ratify a contract or release entered into under duress by intentionally accepting benefits under the contract, by remaining silent or acquiescing in the contract for a period of time after he has the opportunity to avoid it, or by acting upon it, performing under it, or affirmatively acknowledging it." (Internal quotation marks omitted.) Ace Equipment Sales, Inc. v. H.O. Penn Machinery Co., 88 Conn.App. 687, 697, 871 A.2d 402, cert, denied, 274 Conn. 909, 876 A.2d 1200 (2005).

In the present case, the uncontradicted testimony indicates that the settlement discussions took place over a fairly lengthy period of time, starting, at least, in the fall of 2008 and continuing with a formal mediation session which was unsuccessful. Additionally, the plaintiff admits that she agreed to the settlement and Rubenstein's and Etlinger's correspondence reflect an agreement. Furthermore and most importantly, the plaintiff did not attempt to revoke or terminate the agreement for over five weeks. Rather, she actively participated with Rubenstein in negotiating the settlement details during this time. She had a confidentiality provision removed from the release and had the workers' compensation lien reduced. The plaintiff testified that she talked to other attorneys, including the attorney general's office and the grievance committee, about Rubenstein, but at the same time she was working with him to achieve a more favorable settlement. Thus, regardless of whether the plaintiff experienced duress, she waived her right to repudiate the agreement as she ratified the settlement agreement by acquiescing and acting upon it instead of promptly repudiating it.

As noted previously, this court finds the terms of the settlement agreement to be clear and unambiguous. The confidentiality clause and the amount of the workers' compensation lien are not material and do not affect this court's finding. There is no evidence that the confidentiality clause was originally discussed and, further, it was deleted at Nathan's request. The reduction of the lien amount also does not render the settlement agreement unclear. The evidence indicates that Nathan knew the amount of the lien would have to be paid back to Clean Harbors out of the settlement amount; the reduction, effectuated with Rubenstein's assistance, also inured to Nathan's benefit.

The plaintiff's actions reflect the common uncertainties and second guessing of a litigant who is faced with an imperfect resolution of his or her case. While this court takes no position on the fairness of the settlement figure, it is not unaware of the clash between the expectations of the litigant and the realities faced by attorneys. Often an attorney's attempt to settle a matter, in light of the numerous issues and nuances in every case, can seem to his or her client to be an abandonment of the client or "selling out" — even when it may well be in the client's best interest. A settlement that is less than that hoped for does not necessarily equate to unfairness.

Hence, as the terms of the settlement were clear and unambiguous; see Massey v. Branford, 115 Conn.App. 153, 164, 971 A.2d 838 (2009); this court grants the defendant's motion to enforce the agreement.


Summaries of

NATHAN v. CLO. DUCT VENT CLG.

Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
Sep 29, 2009
2009 Ct. Sup. 19664 (Conn. Super. Ct. 2009)
Case details for

NATHAN v. CLO. DUCT VENT CLG.

Case Details

Full title:LUCY NATHAN v. CALCO DUCT VENT CLEANING ET AL

Court:Connecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford

Date published: Sep 29, 2009

Citations

2009 Ct. Sup. 19664 (Conn. Super. Ct. 2009)