Titan Capital, Inc. v. John Voloshin et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO ENFORCE STIPULATION, SUPERIOR COURT DOCKET # 192, DATED SEPTEMBER 29, 2010

The resolution of the instant matter is just a short chapter in a long and tangled litigation history between the parties.   A September 29, 2010 STIPULATION REGARDING FORECLOSURE,¹ hereinafter “Stipulation,” signed only by counsel for the parties, seemed to end the dispute, but the defendant Linda Voloshin now contests the enforceability of said Agreement.   Ms. Voloshin does not contest that the Stipulation is sufficiently clear and unambiguous as a matter of law so as to be enforceable, see Audubon Parking Associates, LTD v. Barclay & Stubbs, Inc., 225 Conn. 804, 811–12 (1993), but contests the enforceability of the Stipulation arguing that her lawyer, Stephen P. Wright, was not authorized to sign the Stipulation.

This is the third ² lawsuit between the parties arising out of the alleged nonpayment of a promissory note secured by a mortgage on two pieces of real property.   Importantly, the defendant Linda Voloshin was a party in all three lawsuits, all three lawsuits involved the same claims of nonpayment of the same promissory note and sought to foreclose on the same two pieces of real estate AND Attorney Stephen P. Wright was Ms. Voloshin's counsel of record in all three lawsuits.   Additionally, all three lawsuits were commenced with abode service on the defendant Linda Voloshin at the 27 Penny Lane, Woodbridge CT property—which property is the subject of the instant foreclosure proceeding.

Attorney Wright successfully defended the first two lawsuits brought by the plaintiff against, inter alia, Linda Voloshin, see footnote # 2.   However, after nearly two years of litigation in the instant case, on June 28, 2010, the court, Abrams, J., entered a judgment of strict foreclosure against the then only remaining defendant, Linda Voloshin.   Shortly thereafter, Attorney Wright, acting on behalf of Ms. Voloshin, filed an appeal.   In September of 2010 that appeal was withdrawn and within days thereafter the Stipulation that is the subject of the instant dispute was filed with the Superior Court.   The withdrawal of the appeal from the June 28, 2010 judgment of strict foreclosure and the filing of the Stipulation seemed to end the dispute.   The parties stipulated to reopen the June 28, 2010 judgment of strict foreclosure and that a “judgment of strict foreclosure shall enter in favor of the Plaintiff,” first sentence of the Stipulation, with agreed-upon terms and a schedule for commencement of law days.

However, within days of the filing of the Stipulation, Attorney Stephen Wright's representation of Ms. Voloshin ceased and new counsel, Attorney Jonathan Einhorn, appeared in lieu of Attorney Wright.   Shortly thereafter, on October 18, 2010, plaintiff's counsel sought a judgment of foreclosure.   After some discussion with counsel concerning the state of the pleadings, the court entered an October 18, 2010 judgment of strict foreclosure in favor of the plaintiff.

Voloshin appealed the October 18, 2010 judgment.   The Appellate Court denied the plaintiff's motion to dismiss the appeal without prejudice to the plaintiff requesting a hearing from the trial court to determine whether the September 29, 2010 Stipulation is enforceable and whether the current appeal was filed in violation of the September 29, 2010 Stipulation.   The plaintiff requested such a hearing.

On March 28, 2011 and April 1, 2011 the court held a hearing on the enforceability of the September 29, 2010 Stipulation and whether the appeal was filed in violation of the September 29, 2010 Stipulation.   Documentary evidence was admitted and testimony of Attorney Stephen P. Wright and Linda Voloshin received.   Counsel requested and were granted a week to file simultaneous briefs.   The same were filed on April 8, 2011.

ISSUE:

Is the September 29, 2010 Stipulation of counsel enforceable and was the appeal filed in violation of said Stipulation?

FINDINGS OF FACTS:

1.  Linda Voloshin does not contest that the terms and content of the September 29, 2010 Stipulation are clear and unambiguous.

2. The court finds that the September 29, 2010 Stipulation is clear and unambiguous.

3. Linda Voloshin was married in 1982, and remains married, to John Voloshin, formerly a defendant in the captioned matter but against whom the case was withdrawn prior to the June 28, 2010 judgment of strict foreclosure.

4. Linda Voloshin resides at 27 Penny Lane Woodbridge CT, and has resided there since the early 1990s, with her husband John and her children.

5. Linda Voloshin has not worked outside her home since 1987, but she has raised the two children issue of her marriage and taken care of the family home.

6. John Voloshin was a real estate developer.

7. John Voloshin took care of the family business interests including any and all matters of litigation.

8. Over the years there have been quite a number of lawsuits served at the family home.   Linda Voloshin would simply put those lawsuits on her husband's desk and he would “take care of those things.”

9. Linda Voloshin had her own checking account.   When she needed money for the account, she asked her husband and he either deposited the funds or gave her the funds to deposit.

10. She recalled being sued by Signature Bank 3 in about 2006, after some refreshing of recollection, and that the court ordered a garnishment of over $530,000.00 from her bank account.4  She delegated the responsibility of handling that suit to her husband.

11. She did not know where the $530,000.00 that was in her checking account came from, never asked her husband about the source of the funds and was uncertain as to the eventual outcome of the case.   She testified that her husband took care of the family business, but that she thought the funds were returned to her account and later her husband removed the same.

12. Attorney Stephen Wright described that John Voloshin was a long time commercial client of the Harlow, Adams & Friedman, P.C. law firm.   Wright believed that the attorney client relationship began in 1998 and continued through the present time.

13. Wright recalled advising both John and Linda Voloshin in the Signature Bank case, described in paragraph 10 above, and two previous cases brought by the instant plaintiff against the Voloshins.   Wright recalled a number of other litigation matters wherein his law firm represented the Voloshins, individually, or represented a business entity controlled by the Voloshins.

14. Wright, at the request and direction of John Voloshin, appeared in the instant case for Linda Voloshin on February 1, 2008.   He filed many pleadings on behalf of Linda Voloshin.

15. Judgment entered against Linda Voloshin on June 28, 2010.

16. Wright, at the written direction of Linda Voloshin,5 filed an appeal of the June 28, 2010 judgment.

17. Thereafter Wright withdrew that appeal with written permission/direction of Linda Voloshin.⁶

18. In September of 2010 he signed a Stipulation dated September 29, 2010 on behalf of Linda Voloshin at the written direction of Linda Voloshin.⁷

19. Wright never spoke or met with Linda Voloshin before September 29, 2010.

20. Wright communicated with Linda Voloshin about the subject litigation, and all the previous litigation wherein Wright had represented Linda Voloshin, through John Voloshin and through correspondence.

21. Wright was paid for his legal work on behalf of Linda Voloshin by John Voloshin.

22. In August and September of 2010, Wright communicated with Linda Voloshin about withdrawing the appeal from the June 28, 2010 judgment of strict foreclosure and agreeing to a new judgment of strict foreclosure.   He received responsive written replies signed by Linda Voloshin, authorizing his withdrawal of the then-pending appeal and Wright's signing the Stipulation, Exhibits K and L.

23.  Based on the aforementioned communications Wright withdrew the aforementioned appeal and signed the September 29, 2010 Stipulation for Judgment by Strict Foreclosure.

24. Linda Voloshin's denial that she signed Exhibits K and L, correspondence from her to Attorney Wright authorizing the withdrawal of the then-pending appeal and the execution of the Stipulation, is unpersuasive and unbelievable.   On the contrary, the court finds that either she did sign Exhibits K and L or those documents were signed at with her consent/acquiescence or at her direction.

25. Linda Voloshin denied signing the promissory note and the mortgage deed that form the basis for the captioned action.   She denied even being aware of the existence of the note and mortgage until December 2010.   However, her signature on both instruments was witnessed and notarized, Exhibits B and C attached to the initial complaint.   Additionally, three separate lawsuits, arising out of the very promissory note and mortgage deed she claimed to unaware of, had been served at her home in 2005, 2007 and 2008.   She admitted she received various legal documents served at the family home.   Her claim that she did not read the legal documents served at her home, but instead left those documents on her husband's desk, is unpersuasive.   These apparent inconsistencies, together with other inconsistencies noted within these findings and observations made during her testimony, undermined the court's confidence in Ms. Voloshin's veracity.

26. Linda Voloshin executed a power of attorney in favor of her husband John Voloshin.   She claimed she did not recall when she executed said power of attorney, but did not recall ever revoking the same.

27. Linda Voloshin explicitly authorized her husband to act for her both through her execution of a power of attorney in his favor and direct conversation she had with her husband.   She authorized him to act on her behalf with respect to litigation and other family business matters implicitly by her longstanding practices of delegating business matters—including litigation—to her husband to handle.

28. Linda Voloshin communicated with Attorney Stephen Wright through her husband John, in writing and through her conduct in the captioned lawsuit and its two predecessor suits.   She had communicated her wishes and authorization to Attorney Stephen P. Wright by allowing her husband to hire counsel, direct counsel, pay counsel and by not inquiring of either her counsel or her husband as to the progress, direction or outcome of any of the litigation in spite of her knowledge of the existence of the litigation.

29. Linda Voloshin communicated directly with her counsel, Attorney Stephen P. Wright, in writing she signed or authorized,8 by responding to her counsel's request for permission to withdraw the appeal of the June 28, 2010 judgment of strict foreclosure in the captioned case and to enter into the September 29, 2010 Stipulation.

30. Linda Voloshin was an articulate, intelligent witness.   She was responsive to questioning on direct exam, she successfully fenced with cross examining counsel, she understood the documents offered during her testimony and she understood the nature of the claims and relief sought in this case as well as the implications that her testimony might hold for herself and her husband.

31. The court rejects the defendant's assertion that she was ignorant, even willfully ignorant of, the existence of and progress of the instant case.   She was aware of, at the very least on notice of, the initiation of the instant case or one of the several predecessor cases,9 given the service of process at her home.

32. She explicitly and/or implicitly delegated the handling of this case to her husband, as she did with other family business matters including litigation.

33. She did apparently authorize John Voloshin to act for her in all matters concerned with the instant litigation.10  She explicitly authorized John Voloshin to “take care of the matter.”   She allowed John Voloshin to retain counsel, to direct the defense of the lawsuit and to resolve the matter.   Her testimony that she would accept service of the lawsuits at her home, often not carefully read the lawsuits to see if she was even involved but rather simply put the legal papers on her husband's desk and allow, permit and direct him to “take care of the matter” is sufficient authorization of John Voloshin to act as her agent in those matters—including the instant matter.

34. She did not limit her husband's authority to deal with others on her behalf in connection with this instant litigation.   Attorney Stephen Wright could and did in good faith reasonably believe under all the circumstances that John Voloshin had the necessary authority to hire Wright to act on Ms. Linda Voloshin's behalf, to direct the defense of the litigation, to direct an appeal to be filed and to direct Wright to withdraw the appeal of the June 28, 2010 judgment and enter into the September 29, 2010 Stipulation.

35. The court finds that John Voloshin acted with Linda Voloshin's apparent authority in this matter and that apparent authority was conveyed to Attorney Stephen P. Wright explicitly in correspondence and implicitly through her course of conduct in this and prior litigation wherein Wright represented her interests and she chose to communicate with Wright through her husband.

36. Both her counsel, Attorney Steven P. Wright, and opposing counsel, Attorney Gary Greene, signers of the September 29, 2010 Stipulation were authorized by their respective clients to sign the Stipulation.   Attorney Greene, plaintiff's counsel, did in reasonably good faith believe under all the circumstances then and there known to him that Ms. Voloshin's counsel did have the necessary authority to enter into the Stipulation.

DISCUSSION:

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 parties in the instant case do not contest that the subject September 29, 2010 stipulation is clear and unambiguous.

The defendant, Linda Voloshin, asserts that her counsel, Attorney Stephen P. Wright, was not authorized to sign the stipulation.   Linda Voloshin does not contest that Stephen Wright was her counsel of record, but she asserts that she never knew of the litigation, never hired counsel, never directed counsel, never communicated with counsel and never authorized counsel to either withdraw the then-pending appeal or sign the subject Stipulation.   Instead she delegated all responsibility and authority for handling legal matters to her husband, John Voloshin and now denies knowledge of and execution of the promissory note and mortgage that underlie the instant and previous litigation,¹¹ knowledge of the instant litigation and authorization of her counsel of record to institute an appeal of June 28, 2010 judgment, to withdraw the appeal and/or to enter into a September 29, 2010 Stipulation.   Attorney Steven Wright, a sophisticated legal practitioner with more than 20 years' experience, was authorized and directed by his law firm's long time client, John Voloshin, to defend Linda Voloshin's interests in the instant case.   In the Fall of 2010, Stephen Wright was directed by Linda Voloshin, directly and/or through her authorized agent, John Voloshin, to withdraw an appeal and to sign a stipulation for judgment.

“Connecticut law is clear to the extent that under the ordinary rules of a contract, an agent who has apparent authority, but not express authority, can bind his principal especially as to parties who act in good faith ․ Since the case of Tomlinson v. Board of Education, 226 Conn. 704, 734, 629 A.2d 333 (1993), the court's inquiry as to the doctrine of apparent authority is now refined to a two-part analysis.   Apparent authority exists, one, where the principal held the agent out as possessing sufficient authority to embrace the act in question and knowingly permitted him to act as having such authority;  and, two, in consequence thereof, the person dealing with the agent acting in good faith reasonably believed under all the circumstances that the agent had the necessary authority ․” Ackerman v Sobol Family Partnership, LLP, 298 Conn 495, 504–05 (2010).

Attorney Wright, counsel of record, for Ms. Linda Voloshin, had apparent authority to bind his principal.   Linda Voloshin's empowering of her husband John, over the course of a number of lawsuits and a number of years and by a power of attorney executed by Ms. Voloshin in favor of her husband, John Voloshin, to retain Wright, to direct the litigation and to resolve preceding litigation, gave Wright a good faith reasonable belief that John Voloshin had Linda Voloshin's apparent authority to act for Linda in connection with the instant litigation.   Additionally, Linda Voloshin expressly authorized the Stipulation in her September 14 and September 15, 2010 letters to Attorney Wright, Exhibits K and L at the 3/28/11 hearing.

Attorney Greene, counsel for the plaintiff, also acted in good faith reasonably believing that Attorney Wright, under all the circumstances known to Greene, was authorized by his principal to withdraw the appeal and enter into the subject stipulation.

Wherefore, the court finds that Attorney Stephen Wright was authorized by the defendant Linda Voloshin directly, through correspondence, Plaintiff's Exhibits G through L—documents either signed by her or her authorized agent—her husband John, and/or indirectly by authorizing and empowering her husband John to act as her apparent agent in communicating with Attorney Wright allowing and directing Wright to sign the stipulation.   The Stipulation is clear and so unambiguous as to be legally binding and enforceable and Attorney Steven Wright was authorized to act on behalf of his client when he signed the same.

HOLDING:

The September 29, 2010 Stipulation is binding and enforceable.   The appeal was filed in violation of the Stipulation.

Zemetis, J.

FOOTNOTES

FN1. Exhibit A attached hereto being the same as # 178 of the court docket..  FN1. Exhibit A attached hereto being the same as # 178 of the court docket.

FN2. Titan v. Voloshin, NNH CV 05 4009648 dismissed 11/16/06, and Titan v. Voloshin, NNH CV 076000604 dismissed 11/27/07..  FN2. Titan v. Voloshin, NNH CV 05 4009648 dismissed 11/16/06, and Titan v. Voloshin, NNH CV 076000604 dismissed 11/27/07.

FN3. Signature Bank v. John Voloshin et al., AAN CV06–51190, Withdrawn 4/9/10..  FN3. Signature Bank v. John Voloshin et al., AAN CV06–51190, Withdrawn 4/9/10.

FN4. Exhibit 6 at 4/1/11 hearing, 9/18/06 letter from New Alliance Bank to Linda H. Voloshin regarding garnishment order in the amount of $833,365.13 and withdrawal of $530,735.00 from account..  FN4. Exhibit 6 at 4/1/11 hearing, 9/18/06 letter from New Alliance Bank to Linda H. Voloshin regarding garnishment order in the amount of $833,365.13 and withdrawal of $530,735.00 from account.

FN5. Exhibit I at the 4/1/11 hearing..  FN5. Exhibit I at the 4/1/11 hearing.

FN6. Exhibit K at the 4/1/11 hearing..  FN6. Exhibit K at the 4/1/11 hearing.

FN7. Exhibit L at the 4/1/11 hearing..  FN7. Exhibit L at the 4/1/11 hearing.

FN8. Exhibits K and L at the 4/1/11 hearing (correspondence from Linda Voloshin to Attorney Stephen Wright dated September 14, 2010 and September 15, 2010 respectively)..  FN8. Exhibits K and L at the 4/1/11 hearing (correspondence from Linda Voloshin to Attorney Stephen Wright dated September 14, 2010 and September 15, 2010 respectively).

FN9. See footnote 2..  FN9. See footnote 2.

FN10. Exhibit K at the 4/1/11 hearing, correspondence from Linda Voloshin to Attorney Stephen Wright giving “permission to work with John Voloshin and Attorney Skalka on this,” paragraph 3..  FN10. Exhibit K at the 4/1/11 hearing, correspondence from Linda Voloshin to Attorney Stephen Wright giving “permission to work with John Voloshin and Attorney Skalka on this,” paragraph 3.

FN11. See footnote 2 above..  FN11. See footnote 2 above.

Zemetis, Terence A., J.