Opinion
No. DBD CV07-5003116 S
February 11, 2010
MEMORANDUM OF DECISION
This matter comes before the court on the defendant's, Chimblo Real Estate Enterprises, LLC, motion to enforce settlement dated October 19, 2009. The court indicated to the parties that this motion requires resolution prior to the court hearing the plaintiff's motion to restore the case to the docket and the defendant's objection to the motion.
The defendant's motion to enforce settlement falls within the purview of an " Audubon" hearing. In Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993), the Supreme Court adopted the rule that an agreement resolving a civil action can be summarily enforced through a motion filed in the original case when the existence of the agreement is undisputed and the agreement's terms are clear and unambigious.
Subsequently, "the Audubon holding has been applied when the parties contest the existence or the terms of the alleged settlement agreement, requiring the trial court to hold evidentiary hearings and make factual findings in order to resolve these issues." (Citations omitted.) Earth Technology, Inc. v. Fluor Ne, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 07 5005595 (April 30, 2009, Stevens, J.).
The court held an evidentiary hearing on January 26, 2010, on the enforcement of the settlement in this matter. "[T]he issues are whether a settlement agreement exists, whether its terms are undisputed, clear and unambiguous, and whether the nature of the parties' dispute allows summary enforcement . . . The narrow evidentiary inquiry of an ` Audubon' hearing is solely to determine whether there is any dispute about the existence, terms and enforceability of a clear and unambiguous agreement, not to resolve such disputed facts if they exist." Earth Technology, Inc. v. Fluor Ne, Inc., supra, Docket No. X06 CV 07 5005595.
The court heard testimony from Attorney Walter Shalvoy, who represented the defendant; Attorney Stephen Savarese, who represented the plaintiff, and Patricia Scappatura, the plaintiff.
From the testimony and a review of the court's file, the court finds the following facts:
1.) This case was scheduled by the court to commence jury selection on June 30, 2009.
2.) Plaintiff's counsel, Stephen Savarese, by motion dated May 18, 2009, had filed a motion to withdraw appearance. Counsel in his motion indicated a breakdown of the attorney-client relationship.
3.) This motion was scheduled by the court to be heard on June 9, 2009. The plaintiff was present for the hearing, along with Attorney Savarese and Attorney Shalvoy.
4.) The hearing was before Judge Matasavage. The hearing was recessed by the court prior to a ruling, with the recommendation by the court to have counsel speak to Judge Reynolds, the presiding judge, relative to the status of the litigation.
5.) The attorneys met with Judge Reynolds who recommended a settlement of the plaintiff's claim in the amount of $5,000.00.
6.) Attorney Shalvoy contacted his insurance carrier about the settlement discussions and received authorization to settle the case for Judge Reynolds' recommended amount.
7.) The offer was then communicated to Attorney Savarese.
8.) Attorney Savarese testified that he explained the offer to Ms. Scappatura (who was still in attendance at the courthouse), as well as the pros and cons of proceeding to trial with her case and the likelihood of her obtaining a judgment for more than the amount offered.
9.) Attorney Savarese testified that after extensive discussion with Ms. Scappatura, she accepted the offer. Attorney Savarese communicated the acceptance of the offer to Attorney Shalvoy and Judge Reynolds. This communication resulted in a withdrawal being executed by both Attorney Savarese and Attorney Shalvoy and being filed with the court on June 9, 2009, at 11:54 a.m.
10.) Both Attorney Savarese and Ms. Scappatura testified that Ms. Scappatura then telephoned Attorney Savarese at his office on the afternoon of June 7, 2009. The crux of the telephone call was Ms. Scappatura questioning the settlement and feeling that Attorney Savarese had "sold me out."
11.) Attorney Shalvoy testified that he forwarded to Attorney Savarese a check in the amount of $5,000.00 and a general release to be executed by Ms. Scappatura. He was subsequently advised by Attorney Savarese that Ms. Scappatura was refusing to sign the general release and was not accepting the settlement amount of $5,000.00, resulting in this motion.
The court, having heard the testimony and having made the factual findings, concludes that the settlement is enforceable. The court had the opportunity to view and hear the witnesses' testimony. The court concludes that the credibility of the testimony supports a settlement having been reached by the parties on June 9, 2009, at the Danbury courthouse. It appears that Ms. Scappatura may have had a change of heart once she left the courthouse. However, it was all the parties' understanding, as well as the court's, that the case was settled and evidence of that was the withdrawal executed and filed by the parties on June 9, 2009.
As noted previously, the court's sole purpose in conducting an evidentiary " Audubon" hearing is to determine whether there is any dispute about the existence, terms and enforceability of a clear and unambiguous settlement agreement. The court finds that such agreement did exist in this case and orders the enforcement of the settlement between the parties of the plaintiff's claim for the amount of $5,000.00.
As a result of the court's decision, the plaintiff's motion to restore this case to the docket is denied.