Theresa DiPersio v. Bruce Maneeley et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO ENFORCE SETTLEMENT

The original complaint in this action dated August 11, 2010 is in four counts.   The operative Complaint is dated October 27, 2009.   The first count is in breach of contract, and seeks indemnification pursuant to the terms of an agreement signed by the plaintiff Theresa DiPersio as indemnitee and the defendants Bruce Maneeley, Robert DiPersio and Sorrento on The Green, LLC (hereinafter Sorrento, LLC) as indemnitors.

The specific allegations of the complaint are that the defendant, Sorrento, LLC borrowed the sum of $250,000 from the United Bank on or about June 27, 2007.   A note was executed at that time.   The defendants Bruce Maneeley and Robert DiPersio were guarantors under the terms of that note.   In addition, the plaintiff Theresa DiPersio and the defendant Robert DiPersio granted a mortgage as further security, which mortgage encumbered their jointly owned property at 639 Main St., East Hartford Connecticut.

The complaint further alleges that Robert DiPersio, Bruce Maneeley and Sorrento, LLC executed an indemnification agreement in favor of Theresa DiPersio in which they agreed to “indemnify, hold harmless and defend [Plaintiff] from and against, and reimburse [Plaintiff] for any and all claims, demands, liabilities, losses, damages, judgments, penalties, costs and expenses (including, without limitation, attorneys fees) which may be imposed upon, asserted against, or incurred or paid by [Plaintiff] by reason of, arising out of or attributable ․ to the enforcement or attempted enforcement by [United] or any successor in interest to [United] against [Plaintiff] of any of the Loan Documents.”  (Plaintiff's Substitute Complaint dated October 27, 2009, Paragraph # 14.)

The note and related security agreements were assigned to 639 Main Financial, LLC on or about November 21, 2008.   None of the parties to this action are alleged to be owners or to have an interest in this LLC.

The defendants Maneeley, Robert DiPersio and Sorrento, LLC defaulted on their payments.   Demand was made upon the plaintiff, Theresa DiPersio who made payments under the terms of the note.

Pursuant to the aforementioned indemnification agreement, Theresa DiPersio has brought this action against the defendants Maneeley, Robert DiPersio and Sorrento, LLC.

Robert DiPersio and Sorrento, LLC have been defaulted.

Of the four counts of the complaint, the Second Count sounding in breach of covenant of good faith, the Third Count seeking a declaratory judgment, and the Fourth Count, alleging a violation of “CUTPA” were all stricken.

On May 18, 2010 the plaintiff's counsel moved to withdraw his appearance.   The motion was not acted upon by the court because it did not comply with the requirements of the Practice Book. However, on May 26, 2010 new plaintiff's counsel filed an appearance on her behalf in lieu of prior counsel.   The pleadings were closed at or near the time of the new appearance.

The parties appeared in court on or about September 1, 2010 with counsel.   At that time, discussions took place between the respective parties and counsel.   There was an attorney referee appointed by the court to facilitate a pretrial conference.   As a result of that conference, the defendant believed that an agreement had been reached with respect to a resolution of the outstanding claims.

On October 6, 2010, the instant Motion to Enforce Settlement was filed with the court.   An evidentiary hearing took place on November 23, 2010.   The allegations of the defendant with respect to the terms of the agreement reached on September 01, 2010 are as follows:

The plaintiff Theresa DiPersio and the defendant Maneeley would each be liable for one-half the balance remaining on the original note which is approximately $220,000.   The holder of the note (639 Main Financial, LLC) would be asked to accept two notes, each for one-half of the total due, under the same terms and with the same security as presently held.

The “new” note payable by the defendant Maneeley would include a provision that if he defaulted, notice of his default would be provided to the plaintiff Theresa DiPersio and that she would have a fifteen (15) day grace period to cure Maneeley's default.

The plaintiff Theresa DiPersio would reserve her rights to enforcement under the indemnification agreement cited in the complaint in the event that the defendant Maneeley defaulted under the “new” note or other terms of the agreement.

Maneeley was to pay the sum of $1,600 by Friday, September 3, 2010 which sum represented one-half the total payment due under the terms of the original note for the month of September 2010.

The defendant Maneeley was to pay the plaintiff, through counsel, the sum of $10,000 on or before October 1, 2010.   This sum represented an initial payment toward the total sum of $22,000 which was an amount agreed upon as representing arrears and other damages claimed under the Complaint.

Additional payments of $4,000 each, were to have been paid by the 10th of the month in January, April, and August of 2011.

In furtherance of this agreement, the defendant McNeeley tendered the initial $1,600 payment as due.   He also tendered the $10,000 per the terms described above.   In addition he has tendered several payments each in the amount of $1,600 which would have been the monthly payments due under the terms of the “new” note.

The defendant offered the testimony of a Mr. Joseph Sullo who is the principal of 639 Main Financial, LLC. Mr. Sullo confirmed that he had spoken to the defendant Maneeley with respect to the proposal for creating to equal notes for the balance of the original note.   Mr. Sullo further confirmed that he spoke with defendant's counsel with respect to the particular details necessary to accomplish this end.   And Mr. Sullo confirmed that he had accepted the proposal in principle.

The court also heard the testimony of the plaintiff, plaintiff's counsel, the defendant, and defendant's counsel.

The court discredits the defendant's testimony that they were not aware of the terms of the indemnification agreement that existed between the parties at the time they entered into negotiations on September 1, 2010.   That claim is belied by reason that the agreement itself is mentioned numerous times in the body of the complaint, that there is an extensive quote from the agreement itself in the body of the complaint, that there is a special defense in the file indicating that the indemnification agreement lacks consideration, which special defense was denied by the plaintiff in its Reply, and by reason that the only count in the complaint is based entirely on the premise of the existence and validity of this indemnification agreement.

“[T]he party seeking enforcement of a purported agreement must be able to establish that the terms of the agreement were clear and that all parties at one point in time in fact agreed upon them.”   E & W Construction, Inc. v. Purcell, Superior Court, judicial district of Middlesex at Middletown, CV 03 0101172 (January 12, 2005, Silbert, J.).

Based upon the foregoing evidence, the court hereby finds that the defendant has established that the terms of the agreement were clear and unambiguous and that the parties did enter into a valid agreement.

“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).

The defendant's motion to enforce settlement is hereby granted.   The terms recited in the body of this opinion shall be enforceable as the terms of the agreement reached by the parties.

Robaina, J.

Robaina, Antonio C., J.