Opinion
CV146043667
11-29-2019
New Haven Gardens v. Michael Schoff, Jr.
UNPUBLISHED OPINION
File Date: December 3, 2019
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Baio, Claudia A., J.
MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT (114.00)
Claudia A. Baio, Judge
The Plaintiff in this matter filed a Motion to Enforce Settlement dated September 3, 2019 related to the claimed resolution of this action to quiet title. According to the movant, after lengthy settlement negotiations, counsel for both parties agreed to settle this matter, and the settlement was reported at a trial management conference on June 27, 2019. All that seemingly remained at that time was for the parties to complete the documents to be signed by the parties and for the parties to withdraw the matter.
At the first scheduled hearing for oral argument on this present motion, on October 28, 2019, all parties and counsel appeared. The defendant appeared and orally objected to the motion to enforce the agreement. Upon hearing from the parties initially, the court ordered that an evidentiary hearing be held. That evidentiary hearing was scheduled for November 25, 2019. On November 25, 2019, the court held a full evidentiary hearing on this Motion and the defendant’s objection thereto pursuant to the holding of Audubon Parking Associates LTD Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804 (1993).
This action was commenced by writ, summons and complaint on December 17, 2013. The defendant, pro se at the time, filed an answer, special defense and counterclaim on February 10, 2014. (See #101.) The special defense and counterclaim both allege adverse possession. The defendant was initially representing himself pro se, but then retained Attorney Robert Leitize to represent him. Attorney Leitize testified at the hearing that although he did not file an appearance until recently, he was representing the defendant throughout the negotiations of this matter and indeed attended a pretrial on his behalf. Although not having filed his appearance until sometime later, Attorney Leitize had been involved in this matter on behalf of the defendant since 2014. The defendant does not dispute this testimony or evidence nor does he dispute that that he hired Attorney Leitize.
At the November 25, 2019 hearing, the defendant expressed for the first time his intent to call his attorney as a witness. The plaintiff had no objection to defense counsel remaining as counsel and a witness and waived any claim. Counsel for the defendant stated on the record his request to withdraw as counsel based on this newly disclosed intention of the defendant. The defendant was canvassed and confirmed that he had notice, had the opportunity to consider the request, had no objection to his attorney’s withdrawal and that he wished to proceed pro se. Plaintiff’s counsel stated no objection. Accordingly, the request for defense counsel to withdraw was granted and the hearing proceeded. The defendant proceeded pro se, and Attorney Bohonnon proceeded on behalf of the plaintiff.
At the hearing on the motion before this court, both Attorney Leitize and Attorney Perito (one of the counsel for the plaintiff) testified. The defendant, although initially proceeding pro se, had some health issues that prevented him for continuing to do so or to attend court proceedings. As such, the defendant had retained Attorney Leitize as counsel with the express request that he represent him, attend the pretrial and negotiate the settlement on his behalf. Evidence presented reflects that Attorney Leitize’s involvement on behalf of the defendant and communication with plaintiff’s counsel dates back to October 29, 2014. See defendant’s Exhibit A. The parties then actively engaged in settlement discussions and efforts since May 2019.
In May 2019, the plaintiff through counsel secured a surveyor and had a survey performed to address the defendant’s concerns as expressed through his counsel to plaintiff’s counsel in an effort to bring the matter to resolution. By email communication, Attorney Leitize, as counsel for the defendant conveyed to plaintiff’s counsel a response upon review of the survey with discussion regarding final changes to resolve this matter in accordance with his client’s wishes.
Further, at the June 27, 2019 trial management conference, the plaintiff’s attorney (Attorney Bohonnon), in accordance with the communications with Attorney Leitize for the defendant and with his acknowledgement and consent, reported the matter settled and that the parties were in the process of executing the quitclaim deeds after which the action would be withdrawn. This, too, is acknowledged in the undisputed documentary evidence presented at the hearing. See also Exhibit B to Plaintiff’s Motion. The matter had been scheduled to commence a court trial on July 11, 2019. As a result of that report, the matter was placed on settled but not withdrawn status, with the withdrawal ordered to be filed by August 27, 2019. Based on this status, the parties did not prepare for trial.
From that point forward, there were follow up communications between the parties to proceed with the finalizing of the documents, and Attorney Leitize reported on his follow up with his client. At no time during the course of those communications was there any report that the settlement would not proceed until the eve of the deadline for filing the withdrawal. The evidence also demonstrates that based upon Attorney Leitize’s continued expectation that his client was going to be signing the documents to finalize the settlement agreement, but that he simply needed more time, a request for continuance of one week to file the withdrawal was made as discussed between counsel, made and granted.
The parties were to file the withdrawals of their respective claims by August 27, 2019. Upon Attorney Bohonnon’s follow up with Attorney Leitize, Attorney Leitize indicate that his client had the documents but had not yet signed them. Given that the deadline was upon the parties, Attorney Bohonnon proposed and ultimately filed with consent a request for a one-week continuance to file the withdrawals. The request was granted, and the new deadline of September 3, 2019 imposed.
It was not until September 3, 2019, the time limit for the extended deadline to file the withdrawal (and by which the defendant was to execute the documents necessary to consummate the settlement so that the matter could be withdrawn in accordance with the time deadline for doing so), that Attorney Leitize learned for the first time that his client refused to sign the quitclaim deed required to finalize the settlement and no longer wanted to accept the settlement agreement. At that point, the defendant had made an enlarged copy of the map that had been previously provided to him and, as a result, had second thoughts about the agreement, feeling that he was entitled to more than that to which he agreed. Unfortunately, it appears from the evidence presented that this was after the parties had reached a settlement agreement and actions taken in reliance thereon.
On September 3, 2019, upon hearing from his client that he would not proceed with the settlement agreement, Attorney Leitize provided communication to plaintiff’s counsel apologizing for his client’s refusal to sign the documents necessary to finalize the settlement and stating in relevant part, "I recognize that I had continuously indicated to both of you that his signature was imminent, as that is what he had left me to understand ..." (Plaintiff’s Exhibit 5.)
It should be noted that all exhibits admitted by the plaintiff were admitted without objection by the defendant.
The defendant argues that his defense counsel may have reached the agreement with plaintiff’s counsel without procuring the defendant’s approval, but with what the defendant maintains is unwarranted expectation that the defendant would accept it. Defense counsel’s testimony supports the contrary conclusion. Attorney Leitize’s testimony, both in response to plaintiff’s counsel’s questions, and perhaps more significantly to the questions of his client, supports that there were communications along the way between him and his client regarding the settlement negotiations, negotiations to address the concerns of his client and agreement ultimately reached between counsel that Attorney Leitize believed was indeed the agreement of the parties, to which the defendant in the eleventh hour changed his mind. The agreement presented contained clear and unambiguous terms.
The defendant continues to refer back to prior discussions from 2014 relating to potential settlement. These discussions, however, were five years prior to the actual resolution of this matter. Certainly, even if the discussion of any proposed settlement may have changed from the ultimate agreement that does not invalidate the ultimate settlement. Further, from the evidence submitted, the initial proposal and that ultimately reached in the settlement agreement appear consistent, further supporting the defense attorney’s authority to proceed with settlement agreement.
A settlement agreement is a legally enforceable contract, for which the consideration is based on the mutual agreement of the parties, and it can be enforced even if one party to the agreement subsequently changes his or her mind and seeks to repudiate or rescind the agreement. See Pitruzello v. Muro, 2003 WL 1090702 (February 27, 2003, Sferrazza, J.). Even if it may not have been reduced to writing, that does not preclude it from being binding on the parties. See Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn.App. 234, 239 (2006); Sicaras v. Hartford, 44 Conn.App. 771, 777 (1997).
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 Association Limited Partnership v. Barclay and Stubbs, Inc., 225 Conn. 804, 811 (1993). In situations where an attorney agrees to a settlement without the permission of his or her client, the agreement is not necessarily unenforceable. Rather, the law of agency governs. "[I]t is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent’s employment ... An agent’s authority may be actual or apparent ... Actual authority exists when [an agent’s] action [is] expressly authorized ... or ... although not authorized, [is] subsequently ratified by the [principal]." ... In contrast, "[a]pparent 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 ... Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal ... The issue of apparent authority is one of fact to be determined based on two criteria ... First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority ... Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action ..." Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 508-09 (2010).
While hiring an attorney, in and of itself, is not sufficient to demonstrate authority, where the client conveys the authority to settle to the client’s lawyer, the settlement reached upon the agreed terms binds the client. See Maharishi School of Vedic Sciences v. Conn. Constitution A.L.P., 260 Conn. 598, 605 (2001). "[M]anifestations of apparent authority must take the form of ‘conduct by a person, observable by others, that expresses meaning.’ 1 Restatement (Third), Agency, supra, at § 1.03, comment (b), p. 56. Such conduct, however, "is not limited to spoken or written words ... Silence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance. Id., at p. 57." Ackerman v. Sobol Family Partnership, LLP, supra, 511-12. When a party changes his or her mind after the settlement has been reached, that does not alter the enforceability of the agreement. " ‘The critical time for analyzing whether an authorized settlement has been achieved is at the moment of the settlement, not at the time the trial was to have begun.’ DAP Fin. Mgmt. Co. v MOR-FAM Electric, Inc. [59 Conn.App. 92 , 97 (2000)]." Pitruzello v. Muro, supra . 3. Whether an attorney has apparent authority to enter into a settlement agreement on behalf of a party is a question of fact. Hogan v. Lagosz, 124 Conn.App. 602, 609 (2010), cert. denied, 299 Conn. 923 (2011).
The testimony and evidence presented leads the court to conclude that the parties engaged in active, earnest and good faith negotiations in an effort to resolve this matter. Based on the testimony presented and the evidence admitted at the hearing, the court finds that the defendant’s counsel acted with authority when he agreed to the settlement. The court concludes from the evidence that Attorney Leitize communicated with his client to keep him apprised of the status of negotiations, to continue to negotiate in accordance with his client’s desire and best interests, and actions were taken by both parties in furtherance of the settlement efforts.
Based on the foregoing, the court grants the Motion for Order to Enforce Settlement and overrules the defendant’s objection. It is hereby ordered that:
1. The parties sign their respective quitclaim deeds which deeds were prepared and reviewed to accomplish the land swap settlement agreement that is the subject of this motion and provided previously to the defendant by defense counsel.
2. The parties are to sign their mutual releases, releasing each other from any and all claims relating to this matter.
3. The quitclaim deeds are to be recorded in the regular and ordinary manner by December 30, 2019 and copies exchanged by that date.
4. The parties are to withdraw their respective claims; specifically, the plaintiff to withdraw the complaint and the defendant to withdraw the counterclaim. The mutual releases and withdrawals are to be exchanged by December 30, 2019.
5. Should the parties fail to comply with this court’s order to sign and exchange the various documents set forth above, and should the action not be withdrawn as ordered, upon the filing of notice in accordance with this order, the parties will be scheduled to appear before the court so that the court may enter a judgment on the record in accordance with this order and may enter such other orders as may be appropriate with respect to any party who has failed to comply with any of the orders entered on this date.