Scott Price v. Edward Kennison, Jr. et al. (2010)

MEMORANDUM OF DECISION MOTION TO ENFORCE SETTLEMENT AGREEMENT

The plaintiff commenced this lawsuit in June 2009 alleging personal injury due to negligence against the defendants, Hartford Distributors, Edwin Kennison, and Edart Leasing Company, LLC, arising out of a motor vehicle accident in which the plaintiff suffered a permanent injury to his back necessitating two surgeries.   Before the court is the plaintiff's motion to enforce a settlement agreement, filed on April 22, 2010.   An affidavit of plaintiff's counsel, Attorney Gerald Klein (Klein), accompanied the motion.   Following an objection filed by the defendants, an evidentiary hearing was held on July 26, 2010.

At the hearing, Klein testified on behalf of the plaintiff and Cheryl Visengard, a claim analyst for Peerless Insurance Company, the defendants' automobile insurance carrier, testified on behalf of the defendants.   The testimony revealed the following facts:  On March 11, 2010, Jason Patch (Patch), a claims specialist at Peerless Insurance Company (Peerless), faxed and mailed a settlement offer of $150,000 to Attorney Klein.   In response, on March 12, 2010, Klein sent a letter to Patch in which he stated he would settle the case for $300,000.¹  According to Klein, following this exchange, Klein and Patch continued to discuss settlement in phone conversations, wherein Patch reiterated that “the offer remained at $150,000,” but that he [Patch] was trying to get more money.” ²

On Tuesday, April 13, 2010, Visengard telephoned Klein's office to “confirm the status of the prior negotiations concerning the lawsuit ․ [and] to advise of my handling [the file].”  “[T]he purpose of my call [was] to confirm the prior offers and demands, the prior negotiations.”   Visengard further stated that she called to inquire “if the prior offer of 150 had been rejected.”   (Transcript (Tr.), pp. 26-27.)   The witnesses had somewhat conflicting versions of other portions of the telephone conversation between them on that day.   Klein testified that Visengard indicated that she was taking over the file and inquired if he was “going to accept the $150,000 offer” (Tr., p. 7);  an inquiry which Visengard in subsequent testimony denied making in those terms.   Klein further testified that he told Visengard that he did not think it [$150,000] was a sufficient offer but “he would check with his client.”   Visengard testified that she did not recall if Klein told her “that he was going to talk to his client about ․ any offers.”  (Tr., p. 30.)   Klein testified that Visengard said twice during the course of the conversation, “doesn't your client want to put this behind him and get on with his life,” giving him “the impression that she was eager to resolve this matter for the figure that had been put in writing a month before.”   Klein also stated that Visengard advised him “that she couldn't guarantee that she was going to increase that [$150,000] offer and that that was the offer that Peerless was making.”  (Tr. 8-9.)   Both witnesses testified that in the course of the conversation they agreed that they would speak again on that Friday, April 16, 2010, since Visengard was just starting her review of the file.   Klein's testimony was consistent with the affidavit that accompanied the plaintiff's motion.

Klein and Visengard's testimony substantively differ on the purpose of the anticipated Friday, April 16, 2010 telephone call.   On recross examination, Visengard repeated earlier testimony that the purpose of the April 16, 2010 phone conversation was to “touch base and to let him [Klein] know after I had looked further into the file as to what our next step would be and if we [Peerless] would consider further negotiations or if I would simply instruct defense counsel to proceed with the litigation of the case.”  (Tr., p. 38.)   She also testified that Klein advised her that taking “less than $300,000 would be malpractice.”  (Tr., p. 30.)   Finally, when asked on recross examination if she told him the negotiations were over, she responded:  “I did not.   I simply confirmed the status of the prior negotiation.”  (Tr. p. 38.)

On April 15, 2010, based on the April 13, 2010 telephone call and Klein's understanding that the $150,000 was still an open offer, the plaintiff executed a general release which Klein faxed and mailed that day to Peerless along with a withdrawal of the lawsuit.   Klein subsequently attempted to withdraw the lawsuit based on the plaintiff's acceptance of the settlement offer.³  On April 19, 2010, Visengard called Klein and advised him that “it was too late ․ it would have to go through the court system.”  (Tr., p. 11.)   Visengard never returned the executed release;  nor has the plaintiff ever asked for its return.  (Tr., p. 11-12.)

The plaintiff argues that the $150,000 offer remained on the table after his counteroffer and was reaffirmed in the course of Klein's conversations with Patch subsequent to his March 12, 2010 letter and was not withdrawn prior to or during the telephone conversation between Klein and Visengard of April 13, 2010.   The defendants argue that the plaintiff's counteroffer of $300,000 on March 12, 2010, negated any settlement offer by Peerless.   Based on the testimonial evidence and the posthearing memoranda by counsel,⁴ it is clear that the sole issue before the court is whether, under all the circumstances, there is a legally enforceable agreement between the parties created by the general release and withdrawal, faxed and mailed to Peerless on April 15, 2010.   If such an agreement is found to exist, there is no dispute that the terms of the agreement were $150,000 in exchange for a general release in favor of all the defendants and a withdrawal of the lawsuit.

“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.”  (Citations omitted;  internal quotation marks omitted.)  Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993).  “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 ․ 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;  internal quotation marks omitted.)  Id., 812.  “Once reached, the [settlement] agreement cannot be repudiated by either party ․ [A] public policy exists by which settlement agreements are advocated.”  (Internal quotation marks omitted.)   Chickosky v. Altadis Shade Co., LLC, Superior Court, judicial district of Hartford, Housing Session, Docket No. 7446 (October 20, 2006, Bentivegna, J.).   A court's authority is “limited to enforcing the undisputed terms of the settlement agreement that are clearly and unambiguously before it, and the court has no discretion to impose terms that conflict with the agreement.”  Nanni v. Dino Corp., 117 Conn.App. 61, 65, 978 A.2d 531 (2009).   Accordingly, when determining enforcement and relief, the court may award the precise relief agreed upon or fairly implied by their agreement.  Waldman v. Beck, 101 Conn.App. 669, 674, 922 A.2d 340 (2007).

Recently, in Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 503, 4 A.3d 288 (2010), the Supreme Court further articulated the role of the trial court when presented with motions to enforce a settlement agreement.   In Ackerman, there was no question that the terms of the settlement at issue “were clear, certain and unambiguous.”   As in the instant case, the precise issue before the court was whether there was a settlement agreement.   The trial court conducted a hearing pursuant to Audubon, supra, 225 Conn. 811-12, and made findings of fact and conclusions of law in an oral decision affirmed by the Supreme Court.   In a scenario, not dissimilar to the one before the court, a settlement offer was extended and rejected by the plaintiff and, based on subsequent conversations, a settlement was claimed to be reached.  “[T]he crux of the issue ․ is the apparent authority of [Coe] to make the settlement proposals and to accept the settlement on behalf of the plaintiffs.”   Ackerman, supra, 298 Conn. 503.   In finding that “[Coe] certainly did have apparent authority from his client[s],” and “that the defendants' counsel reasonably believed that [Coe] was, in fact, authorized by the plaintiff to make the settlement offer at issue,” it is clear that the court's conclusions necessarily required both findings of fact and a credibility assessment based on the hearing testimony.  Id., 503-04, 508 (“Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to findings ․”).  The Supreme Court went on to find that motions to enforce settlement agreements are “essentially equitable in nature and ․ the [trial] court was entitled to use its equitable powers to resolve the dispute without a jury.”  Id., 535.   Therefore, based on Ackerman, despite the argument of the defendants herein to the contrary, in the context of a motion to enforce a settlement agreement, the court has the authority and responsibility to find facts and make credibility determinations.   See also Hamideh v. Weinstein, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4002658 (April 30, 2009, Fischer, J.) (“In connection with a motion to enforce a settlement agreement, the court's function is to act as the trier of fact”).

For the reasons that follow, the court finds that a settlement agreement was created on April 15, 2010, when the plaintiff mailed and faxed the general release and proposed withdrawal to Peerless.  “Acceptance is operative ․ as soon as its transmission begins and it is put out of the offeree's possession ․ irrespective of whether or when it is received by the offeror.”  (Internal quotation marks omitted.)  Lyon v. Adgraphics, Inc., 14 Conn.App. 252, 255, 540 A.2d 398, cert. denied, 208 Conn. 808, 545 A.2d 1103 (1988).   Patch sent a letter to Klein on March 11, 2010, which offered to settle for $150,000 and Klein rejected that offer by letter on March 12, 2010, with a counteroffer of $300,000.⁵  However, based on the unrefuted testimony of Klein,⁶ he and Patch subsequently continued negotiations wherein Patch either explicitly or implicitly reinstituted the offer of $150,000.⁷  Although she denied reoffering $150,000 during her telephone conversation with Klein on April 13, 2010, Visengard admitted in her testimony that she did not advise Klein that the settlement negotiations were over, and that she specifically intended to speak to him on April 16, 2010 about further negotiations.   Notably, although she denied that the $150,000 was still on the table as of April 13, 2010, Visengard repeated at least twice during her testimony that she telephoned Klein on that date to confirm the history of the negotiations, “the prior offers and demands.”  (Tr. pp. 26-27.)   If she was so certain, as she claimed to be, that the $150,000 was essentially revoked by Klein's letter of March 12, 2010 to Patch, it is curious why she repeatedly testified that a purpose of her call was to confirm the status of the prior negotiations.   In addition, at no time prior to the acceptance of the $150,000 settlement offer did Visengard, or anyone else on behalf of Peerless, notify the plaintiff that the offer had been withdrawn, was unauthorized, or was otherwise ineffective.   See footnote 5, supra.

Based on the foregoing, the court finds that the offer of $150,000 was either explicitly or implicitly still open when accepted by the plaintiff on April 15, 2010.   Although it may not have been reoffered by Visengard during her telephone discussion with Klein, the weight of the credible evidence supports the conclusion that at the end of the April 13, 2010 telephone conversation between Visengard and Klein, settlement for the sum of $150,000 continued to be an option for plaintiff.   Accordingly, the motion to enforce the settlement agreement is hereby granted.

Peck, J.

FOOTNOTES

FN1. These letters comprise the only other evidence presented at the hearing..  FN1. These letters comprise the only other evidence presented at the hearing.

FN2. Patch was not called to testify and this testimony by Klein was otherwise unrefuted..  FN2. Patch was not called to testify and this testimony by Klein was otherwise unrefuted.

FN3. At the evidentiary hearing, Klein testified that he incorrectly withdrew the lawsuit and it was not actually withdrawn from the court's docket.   Visingard testified that she received a release and withdrawal from Klein via fax on April 15, 2010..  FN3. At the evidentiary hearing, Klein testified that he incorrectly withdrew the lawsuit and it was not actually withdrawn from the court's docket.   Visingard testified that she received a release and withdrawal from Klein via fax on April 15, 2010.

FN4. Attorney Donald A. McCarthy represented Klein at the hearing and filed a posthearing memorandum on behalf of the plaintiff.   He filed his appearance on August 10, 2010..  FN4. Attorney Donald A. McCarthy represented Klein at the hearing and filed a posthearing memorandum on behalf of the plaintiff.   He filed his appearance on August 10, 2010.

FN5. The Restatement (Second) of Contracts, § 35(2), provides, in relevant part:  “A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated in one of the ways listed in [s]ection 36.”   Section 36, which describes ways to terminate an offer, provides in relevant part:  “(a) An offeree's power of acceptance may be terminated by (a) rejection or counter-offer by the offeree, or (b) lapse of time, or (c) revocation by the offeror, or (d) death or incapacity of the offeror or offeree.”   An offer cannot be revoked after the offer has been accepted.  MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 455-56, 889 A.2d 850 (2006);  2 Restatement (Second), Contracts § 42 comment (c)..  FN5. The Restatement (Second) of Contracts, § 35(2), provides, in relevant part:  “A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated in one of the ways listed in [s]ection 36.”   Section 36, which describes ways to terminate an offer, provides in relevant part:  “(a) An offeree's power of acceptance may be terminated by (a) rejection or counter-offer by the offeree, or (b) lapse of time, or (c) revocation by the offeror, or (d) death or incapacity of the offeror or offeree.”   An offer cannot be revoked after the offer has been accepted.  MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 455-56, 889 A.2d 850 (2006);  2 Restatement (Second), Contracts § 42 comment (c).

FN6. Peerless did not produce Patch to testify at the evidentiary hearing and refute Klein's claims even though Klein's affidavit, which alleges the above facts, was filed on May 3, 2010, well in advance of the hearing held on July 26, 2010..  FN6. Peerless did not produce Patch to testify at the evidentiary hearing and refute Klein's claims even though Klein's affidavit, which alleges the above facts, was filed on May 3, 2010, well in advance of the hearing held on July 26, 2010.

FN7. Specifically, Klein testified that Patch stated that he was attempting to ascertain whether Peerless Insurance could offer a higher amount, indicating that the plaintiff likely inquired as to whether Peerless Insurance was willing to extend a higher settlement offer.   An inquiry as to whether a party “[can] do better [is] not a counteroffer.   Jaybe Construction Co. v. Beco, Inc., 3 Conn.Cir.Ct. 406, 216 A.2d 208 (App.Div.1965);  Restatement (Second), Contracts § 39, [c]omments (a) and (b).”  Nickolson v. Negron, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003856 (October 22, 2008, Hiller, J.)..  FN7. Specifically, Klein testified that Patch stated that he was attempting to ascertain whether Peerless Insurance could offer a higher amount, indicating that the plaintiff likely inquired as to whether Peerless Insurance was willing to extend a higher settlement offer.   An inquiry as to whether a party “[can] do better [is] not a counteroffer.   Jaybe Construction Co. v. Beco, Inc., 3 Conn.Cir.Ct. 406, 216 A.2d 208 (App.Div.1965);  Restatement (Second), Contracts § 39, [c]omments (a) and (b).”  Nickolson v. Negron, Superior Court, judicial district of Fairfield, Docket No. CV 04 4003856 (October 22, 2008, Hiller, J.).

Peck, A. Susan, J.