Kenneth E. Taylor v. Robert J. Guendelsberger et al. (2012)

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 122)

By motion filed on June 2, 2011, the defendants, Robert J. Guendelsberger (“Guendelsberger”) and Guendelsberger, Collins, Henry and Guendelsberger (“GCHG”), moved for summary judgment on the complaint filed against them by the plaintiff, Kenneth E. Taylor.

The court heard argument on this motion on January 9, 2012.   The court has considered the defendants' June 2, 2011 motion and memorandum of law in support of their motion for summary judgment (# # 122, 128), their supporting affidavit and exhibits (# # 123–27) and their supplemental memorandum of January 24, 2012 (# 133).   The court has also considered the plaintiff's September 6, 2011 memorandum of law in opposition to the motion for summary judgment (# 131), the affidavit and exhibits that accompanied that memorandum and his supplemental memorandum of January 23, 2012 (# 132).   The motion is granted.

I

FACTUAL HISTORY

In March 2010, the plaintiff brought suit against the defendants, alleging that the plaintiff and Guendelsberger had been partners in the law firm now known as GCHG from January 1, 1986, through 2006.   The plaintiff claims that throughout the partnership the parties entered into various partnership agreements.   In the latter part of 2006, the plaintiff expressed his wish to leave the partnership and the parties thereafter negotiated the terms by which he would do so.   The negotiations became protracted and the parties eventually elected to enter into mediation.   After two days of mediation, the parties agreed to resolve their differences and set forth the resolution in a settlement agreement that was executed on March 26, 2008.

The partnership agreement that was in force in the latter part of 2006 (the “2006 partnership agreement”) was executed in May 2006.   The agreements that were otherwise binding on the plaintiff and Guendelsberger were various agreements that were in force from January 1, 1986, through May 2006 (the “predecessor partnership agreements”).

The various predecessor partnership agreements dealt with, inter alia, repayment of advances.   This issue is a product of the fact that the partnership frequently had to pay advances in connection with cases that the firm was handling.   More precisely, those advances were funds expended on behalf of clients for various fees, including court entry fees, state marshal fees, deposition fees and expert fees.   When the corresponding cases were thereafter resolved, the funds would be repaid to the firm.   Sometimes those repayments occurred years after the advances had been made.   Once the advances were repaid, they were distributed pursuant to the terms of whatever partnership agreement was in effect at the time of reimbursement.

There were many complications associated with such an arrangement.   First, over the course of the years that the plaintiff and Gundelsberger were partners, various other attorneys joined and left the firm.   Thus, the plaintiff's percentage interest in the partnership changed from time to time.   Further, during the twenty-year period of partnership between the plaintiff and Guendelsberger, the partnership agreements that were in force sometimes specifically provided a procedure for distributing the repaid advances, but, at other times, they did not.   The foregoing complications led to the protracted negotiations that ensued after the plaintiff decided to leave the partnership in 2006.

The key provisions of the March 26, 2008 settlement agreement (the “settlement agreement”) are paragraphs nine and ten.   Defendants' Exhibit (“DX”) 1. Paragraph nine states, in entirety, as follows:  “Taylor will be reimbursed by Guendelsberger and GCHG his share of the reimbursable expenses and costs referred to as ‘various money advances' on certain files of G & T ¹ in ¶ 7.04, 7.05, and 7.06, and said reimbursements to Taylor shall be paid to him pursuant to F[sic] ¶ 16.01(d).”  Paragraph ten states, in entirety, as follows:  “Except for what is set forth herein, Taylor hereby waives any and all claims he has to G & T and 30 Park Lane,² and he releases G & T, 30 Park Lane, Guendelsberger and GCHG from all claims that he has to anything related to G & T and 30 Park Lane.”

Both parties were represented by counsel at the mediation which resulted in the settlement agreement.   The settlement agreement, which was handwritten, was initially drafted by counsel for the defendants.   The settlement agreement includes numerous handwritten deletions and insertions.   Although the settlement agreement does not specify the source of the references to “¶ 7.04, 7.05 ․ 7.06[and] ¶ 16.01(d)” in paragraph nine, the parties agree that those references are to the 2006 partnership agreement.   The following are the paragraphs from the 2006 partnership agreement that were referenced in paragraph nine of the settlement agreement:

“7.04 It is recognized that prior to January 1, 2003, various money advances have been made on various files by Robert J. Guendelsberger and Kenneth E. Taylor.   As these pre-January 1, 2003 advances are reimbursed, they shall be paid over to Robert J. Guendelsberger (65%) and Kenneth E. Taylor (35%) and shall not be deemed draw, but rather reimbursement of personal funds due Robert J. Guendelsberger and Kenneth E. Taylor.”

“7.05 It is further recognized that between June 1, 2003 and November 15, 2004, various money advances have been made on various files by Robert J. Guendelsberger, Kenneth E. Taylor and Scott R. McCarthy.³  As these advances are reimbursed, they shall be paid over to Robert J. Guendelsberger (58%), Kenneth E. Taylor (32%) and Scott R. McCarthy (10%) and shall not be deemed draw, but rather reimbursement of personal funds due Robert J. Gunedelsberger, Kenneth E. Taylor and Scott R. McCarthy.”

“7.06 It is further recognized that various account receivables exist which are prior to April 1, 1986.   These account receivables are the personal property of Robert J. Guendelsberger.   It is agreed that as these account receivables are paid, fifty (50%) percent shall be paid over to Robert J. Guendelsberger and fifty (50%) percent can be applied to partnership obligations.   The amount paid over to Robert J. Guendelsberger shall not be deemed or credited against his draw.

“16.01(d) ⁴  A sum representing the amount of that partner's percentage interest in the advances of costs and expenses against outstanding files.   These amounts shall be paid to the withdrawing partner on a monthly basis in accordance with the amounts collected per month of these cash advances by the firm.   The firm shall provide the withdrawing partner with a monthly statement of reimbursed advances, if requested.   This obligation to pay the withdrawing partner his share of advanced costs and expenses shall terminate 48 months after that person has withdrawn.   If a partner withdraws without adhering to the requirements of 16.01, then that partner forfeits any right or claim to his share of unreimbursed costs and expenses unless the remaining partners unanimously vote otherwise.   Any reimbursement not realized by the partnership or its successor and/or assigns within 48 months of the date of withdrawal shall be the property of the remaining partners and/or their successor's [sic] and assigns.”

II

THE POSITIONS OF THE PARTIESAThe Defendants' Position

The defendants recognize that money advances were made at various times before and during the period that the plaintiff was in partnership with Guendelsberger.   The defendants argue that the 2006 partnership agreement sets forth a specific plan for the distribution of all reimbursements of such advances, regardless of when the advances were made and regardless of when the advances were reimbursed.   In support of their argument, the defendants rely on paragraphs 7.03, 7.04, 7.05 and 16.01(d) of the 2006 partnership agreement.

The 2006 partnership agreement includes an integration clause, as follows:  “This agreement contains the entire understanding between the parties hereto as to the creation and establishment of the partnership.   There are no representations, agreements, arrangements or understandings, oral or written, between the parties hereto relating to any of the provisions of this agreement which are not fully incorporated herein.   This agreement may be amended only by a written instrument executed by all of the parties hereto.”   DX 1 at 23, ¶ 25.01.⁵

In his complaint, the plaintiff alleges that the defendants breached the settlement agreement by failing to account for, and pay, advances as required by paragraph nine of the settlement agreement.   The defendants argue that:  1) the settlement agreement incorporates the 2006 partnership agreement by reference;  and 2) the settlement agreement's specific reference to paragraphs 7.04 and 7.05 establishes the precise manner in which reimbursements of advances were to be distributed.   To the extent the plaintiff seeks to avoid the terms of the settlement agreement by relying on a “course of dealing,” the defendants argue that the integration clause of the 2006 partnership agreement precludes reliance on a “course of dealing.”

In response to requests for admission, the plaintiff admitted that he read and understood both the partnership and settlement agreements before signing them.   The plaintiff also admitted that he was represented by counsel throughout the negotiation, drafting and execution of the settlement agreement.

The defendants assert that they have made all payments to the plaintiff as required by paragraphs 7.04, 7.05 and 16.01 of the 2006 partnership agreement.⁶  They support their motion with exhibits that illustrate reimbursement payments made to the defendants and the reimbursement distribution payments that, in turn, the defendants made to the plaintiff pursuant to the separation agreement.   See DX 3, 4. The defendants claim that the plaintiff has failed to identify any funds that remain due and owing to him.

The defendants contend that since the settlement agreement is clear and unambiguous, the intent of the parties can be determined as a matter of law.   The defendants argue that the plaintiff does not identify “a single word, term, expression, [or] reference ․” that demonstrates ambiguity in the settlement agreement which, in turn, would permit (or compel) the finder of fact to explore a course of dealing or other, similar evidence.   Rather, the defendants argue, the plaintiff points to a course of dealing in order to create an ambiguity in the settlement agreement.   Such an analysis, the defendants claim, is precluded by basic principles of contract law.

The defendants disagree with the proposition that any ambiguities in the contract (if, indeed, there are any) should be construed against “the drafter” of the contract, who in this case was counsel for the defendants.   The defendants base this argument on their claim that this contract is not, for example, an insurance contract.   Instead, they claim that the handwritten contract reflects input by both parties.

B

The Plaintiff's Position

The plaintiff opposes the motion for summary judgment, asserting that there are multiple reasons why the motion should not be granted.   The plaintiff claims that the law firm had a “general understanding” that when an advance was repaid it would be split among those partners who had initially incurred the cost of disbursing the advance in the year it was disbursed.   The plaintiff argues that there were years, between 1986 and 2006, in which a partnership agreement explicitly provided for a means of distributing advance payment reimbursements.   However, there were other years during that period, years that the plaintiff calls “gap years,” in which the operable partnership agreement did not explicitly provide for distribution of such reimbursements.   The plaintiff contends that gap year reimbursements went into the general partnership funds and were distributed without regard to who had initially advanced the funds.

The 2006 partnership agreement and the predecessor partnership agreements included various, and varied, methods of distributing reimbursements.   The plaintiff contends that the 2006 partnership agreement, incorporated by reference in the settlement agreement, did not address a means of distributing reimbursements of funds that had been advanced during two gap periods.   According to the plaintiff, it was the confusion and disagreement over the distribution of reimbursements that led to the March 2008 mediation.   The plaintiff's arguments appear to be susceptible of division into five separate claims that there are ambiguities to be found in the settlement agreement, the incorporated 2006 partnership agreement, or both.   Any such ambiguities, he argues, should be construed against the defendants whose counsel drafted the settlement agreement.⁷

The plaintiff argues that the incorporation of paragraphs 7.04 and 7.05 from the 2006 partnership agreement was an attempt to address the issue of distributing reimbursements that came into the firm after the plaintiff's departure on December 31, 2006.⁸  The plaintiff argues that the settlement agreement reference, in paragraph nine, to paragraph 7.06 of the 2006 partnership agreement “was obviously an error,” and is an “ambiguity” because it has “nothing to do” with the issue that paragraph nine otherwise addressed.   He attributes this error to the “hurried fashion” in which the settlement agreement was reached.⁹

Next, the plaintiff argues that the settlement agreement is ambiguous because after it was executed, the defendants distributed to the plaintiff some reimbursements that, pursuant to the terms of the 2006 partnership agreement, the defendants were not technically obligated to distribute to him.   The latter reimbursement distributions were the product of advances that had been made between January 1, 2003, and June 1, 2003.

A third ambiguity, according to the plaintiff, exists with regard to the identity of individuals entitled to share in reimbursements that were the product of advances during the gap years.   He argues that the 2006 partnership agreement does not state who shares in the repayment of advances that were made between November 15, 2004, and December 31, 2006.   The plaintiff claims that the failure of the 2006 partnership agreement to account for the distribution of each and every reimbursement that may have come to the defendants during the four-year period that followed his departure from the law firm should be examined in light of a “course of dealing,” which, in turn, involves questions of fact.

The fourth ambiguity, according to the plaintiff, is that the settlement agreement incorporates paragraph 7.05 of the 2006 partnership agreement and that paragraph provides for a distribution of reimbursements to another former partner in the firm, Scott McCarthy.   The plaintiff argues that since McCarthy left the firm in 2004, he no longer had a right to any distribution of reimbursements when the settlement agreement was signed in 2008.   Therefore, the plaintiff argues, there should not have been any provision for the distribution of reimbursements allocated to McCarthy.   Thus, the plaintiff concludes that the incorporation of paragraph 7.05 in the settlement agreement creates an “ambiguity.”

Finally, the plaintiff, relying on affidavits by the plaintiff and his attorney, argues that the negotiations between the counsels for both parties focused on the distribution of reimbursements that were the product of advances made during the plaintiff's last two years at the firm.   According to the plaintiff, because the settlement agreement and the incorporated provisions of the 2006 partnership agreement both contain ambiguities, the court must conclude that both agreements are “unclear,” thus necessitating extrinsic evidence to clarify the precise terms of the agreements.   The plaintiff argues that, for example, oral agreements between the parties should be considered, not to vary or contradict the terms of the agreements, but rather to explain the ambiguities he has identified and to supply missing terms.

III

DISCUSSIONAStandard of Review

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ In order for a motion for summary judgment to be granted properly, the moving party must demonstrate that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ [A] summary disposition [must] ․ be on evidence which a jury would not be at liberty to disbelieve and ․ where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the [summary judgment].”  (Citation omitted;  internal quotation marks omitted.)  Farrell v. Twenty–First Century Ins. Co., 301 Conn. 657, 661–62, 21 A.3d 816 (2011).

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ․ It is not enough ․ for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  (Internal quotation marks omitted.)  Boyne v. Glastonbury, 110 Conn.App. 591, 596, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).   “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).  “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.”  (Internal quotation marks omitted.)   Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 591, 715 A.2d 807 (1998).

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Arnone v. Connecticut Light & Power Co., 90 Conn.App. 188, 193, 878 A.2d 347 (2005).  “A material fact is a fact which will make a difference in the result of the case ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557–58, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

B

Analysis

The defendants' motion calls upon the court to find that the dispute between the parties is governed by a contract, i.e., their settlement agreement, which should be interpreted pursuant to well-understood principles of law.   The plaintiff agrees that the settlement agreement is a contract but argues that the same well-understood principles of law, specifically the parol evidence rule, mandate the denial of the motion for summary judgment.

In order to address the claims of both parties, it is necessary to review the applicable rules of contract interpretation.  “Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact ․ [w]here there is definitive contract language, the determination of what the parties intended by their contractual communications is a question of law ․ In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together ․ The contract must be construed to give effect to the intent of the contracting parties ․ This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained ․ [I]ntent ․ is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ [Where] ․ there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law.”  (Citations omitted;  internal quotation marks omitted.)  Schwartz v. Family Dental Group, P.C., 106 Conn.App. 765, 771, 943 A.2d 1122, cert. denied, 288 Conn. 911, 954 A.2d 184 (2008).

The question of whether a contract includes an ambiguity requiring the court to look beyond the four corners of the contract to resolve that ambiguity is also governed by well-established principles.  “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ․ Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms ․ [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous ․ [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation ․ militates against interpreting a contract in a way that renders a provision superfluous ․ If a contract is unambiguous within its four corners, intent of the parties is a question of law ․ When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” (Internal quotation marks omitted.)  McCarthy v. Chromium Process Co., 127 Conn.App. 324, 330, 13 A.3d 715 (2011).  “When there is ambiguity, [the court] must construe contractual terms against the drafter.”  (Internal quotation marks omitted.)  Cameron v. Avonridge, Inc., 3 Conn.App. 230, 233, 486 A.2d 661 (1985).

The plaintiff's argument founders, immediately, on his belief that he has identified “ambiguities.”   The settlement agreement, in fact, gives the plaintiff a right to a percentage distribution of certain reimbursements that came to the defendants during the four-year period after he left the firm.   It does not give him a percentage distribution right to every reimbursement that came to the defendants during that four-year period.   The settlement agreement, by incorporating the 2006 partnership agreement, provides a clear road map with regard to which reimbursements the plaintiff has some rights.   The fact that the settlement agreement does not explain what the defendants will do with reimbursements not described in the settlement agreement does not mean that the settlement agreement is “ambiguous” as to those reimbursements.   Rather, such reimbursements become the property of the defendants to distribute in accordance with whatever partnership agreement (or other agreement) was in effect between December 31, 2006, and December 31, 2010.  “[A] court cannot import into the agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms.”  (Internal quotation marks omitted.)  Pesino v. Atlantic Bank of New York, 244 Conn. 85, 93, 709 A.2d 540 (1998).

The plaintiff's claims of “ambiguity” will each be addressed, beginning with the claim involving gap year advances, the claim pressed most vigorously by the plaintiff.   First, the parties do not dispute the fact that there were “gap years” during the plaintiff's association with the law firm during which the operative partnership agreements did not clearly specify the manner in which reimbursements would be distributed.   Further, the 2006 partnership agreement, itself, included two such gap periods.¹⁰  Therefore, the settlement agreement, by incorporating the 2006 partnership agreement, fails to give the plaintiff any rights to reimbursement for advances made during those two gap periods.   The latter fact is patent and obvious to all who read the 2006 partnership agreement.   In the course of discovery proceedings, the plaintiff admitted that he did indeed read and understand the 2006 partnership agreement before he signed it.

The fact that the agreement does not give the plaintiff rights to certain monies that were advanced during the two gap periods is not a fact that makes the settlement agreement “ambiguous.”   The settlement agreement has twelve paragraphs.   The disposition of reimbursements is addressed in paragraph nine of that agreement, but paragraph nine is not the only part of the settlement agreement that addresses payments to the plaintiff.   The plaintiff acquired important rights and entitlements in other parts of the settlement agreement.   See, e.g., DX 1 at 1–2, ¶¶ 2–3, 8.

A settlement agreement, by definition, embodies a compromise.   By agreeing to a compromise, the parties in the present case have each given up something that they might have won had they proceeded with litigation.   See Albert Mendel & Son, Inc. v. Krogh, 4 Conn.App. 117, 122, 492 A.2d 536 (1985).   In the context of analyzing a settlement agreement, it is particularly important to resist the temptation to find an ambiguity where none exists.   The settlement of a case is a contract “for the right to avoid a trial.”  (Emphasis in original.)   Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 812, 626 A.2d 729 (1993).   It is a meaningful way to resolve legal disputes, the integrity of which is worthy of preservation.  Id. Settlement agreements, voluntarily and fairly made, should be held valid and enforced by the courts.  Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 506, 746 A.2d 1277 (2000).

The parties in the present case, all of whom are lawyers and who were represented by lawyers, entered into a compromise in which each party gave up certain rights.   It was the product of negotiations between the parties and the parties freely signed the agreement upon advice of counsel.   The settlement agreement, by incorporating the 2006 partnership agreement, clearly gives the plaintiff rights to some, but not all, reimbursements that came to the law firm between December 31, 2008, and December 31, 2010.

The plaintiff's current counsel has accurately pointed out that the agreement, read literally, does not give the plaintiff any rights to certain funds that came to the law firm as reimbursements for advances made during certain time periods.   The latter fact is open and obvious at this time, and it was equally open and obvious to the experienced counsel who reviewed the settlement agreement before signing it in March 2008.

It is against the background of the foregoing facts and principles of law that the court reviews the balance of the plaintiff's claims of “ambiguity.”   The plaintiff claims that the settlement agreement is ambiguous because it incorporates a paragraph from the 2006 partnership agreement that has “nothing to do” with paragraph nine of the settlement agreement.

Paragraph nine of the settlement agreement addresses the plaintiff's rights regarding distribution of reimbursements.   The arguably errant reference within paragraph nine is the reference to paragraph 7.06 of the 2006 partnership agreement.   Paragraph 7.06, by implication, makes clear that the plaintiff has no claim to account receivables that preceded his membership in the law firm, i.e., prior to April 1, 1986.   Thus, it is incorrect to say that paragraph 7.06 has “nothing to do” with a settlement agreement paragraph that spells out the parties' rights to certain reimbursements.   However, even if one were to agree with the plaintiff that the reference to paragraph 7.06 is extraneous,¹¹ its inclusion in the settlement agreement is, at most, meaningless.   The reference to paragraph 7.06, even if unnecessary, does not render the settlement agreement “ambiguous.”

The next claim of ambiguity is that, post-settlement, someone in the defendant law firm distributed to the plaintiff some reimbursements that it need not have given to him, since the reimbursements were the product of advances made during a gap period.   Post-settlement agreement conduct, particularly post-settlement agreement conduct that gave the plaintiff monies to which he was not entitled, cannot serve to make the settlement agreement ambiguous.   It may be that the person distributing the monies did not understand the settlement agreement, or it may be that the person distributing the monies did so in error.   Regardless of the reason for the errant distribution, that post-agreement act does not make the settlement agreement “ambiguous.”   Whether the agreement is ambiguous is a question that is resolved by examining the terms of the agreement, not by a post-settlement agreement interpretation by a party or, as the defendants' claim, by a non-party.  “[A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  (Internal quotation marks omitted.)  McCarthy v. Chromium Process Co., supra, 127 Conn.App. 330.

The plaintiff notes that the partnership agreement does not make clear who shares in the distribution of reimbursement during the gap years, thus necessitating recourse to the “course of dealing” that the parties followed when this situation arose while the plaintiff was associated with the law firm.   This argument would have merit if the plaintiff were still with the law firm and a question arose regarding the distribution of reimbursements that had been advanced during a gap period.   However, since the settlement agreement now in force does not give the plaintiff the right to participate in the distribution of reimbursements that were advanced during gap periods, it is irrelevant how the parties formerly handled the distribution of such reimbursements, i.e., through a particular course of dealing.

Finally, the unambiguous merger clause, paragraph ten of the settlement agreement, also serves to bar recourse to any “course of dealing” that existed prior to the execution of the settlement agreement.   See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 502.   The latter conclusion is buttressed by the fact that there is no claim or evidence that there was unequal bargaining power between the parties.   See Benvenuti Oil Co. v. Foss Consultants, Inc., 64 Conn.App. 723, 728–29, 781 A.2d 435 (2001).

The plaintiff argues that the settlement agreement, by incorporating paragraph 7.05 of the 2006 partnership agreement, appears to contemplate the distribution of reimbursement advances, in certain circumstances, to Scott McCarthy, an attorney who left the law firm in 2004.   The plaintiff contends that, in fact, McCarthy no longer has a right to any reimbursements that might have come to the firm between December 31, 2006, and December 31, 2010.

Even if the foregoing contention is true, and the court need not determine if it is true, the plaintiff has not identified an ambiguity that warrants recourse to extrinsic evidence.   If the plaintiff is correct, and McCarthy had (or has) no right to participate in the distribution of reimbursements that came to the law firm during the four-year period that post-dated the plaintiff's departure from the law firm, then the incorporated reference to McCarthy in the settlement agreement is simply extraneous.   McCarthy is not a party to the settlement agreement so it does not confer any rights upon him.   Alternatively, if the defendants, for whatever reason, choose to make distributions to McCarthy that they are not obligated to make, such a decision does not affect the plaintiff in any conceivable way, as long as the plaintiff receives the payments promised to him in the settlement agreement.

Finally, the plaintiff sums up his position by arguing that all of the ambiguities he has identified require the admission of extrinsic evidence to resolve those ambiguities and to supply “missing terms.”   The court does not find any term, phrase or provision of either the settlement agreement or the 2006 partnership agreement to be ambiguous.   The plaintiff fails to identify any legally cognizable ambiguity, and, therefore, there is no need for the court to look beyond the four corners of the two documents that are at issue.   Similarly, the court does not find that there is any basis on which to permit the addition of any alleged “missing terms.”   The settlement agreement and the 2006 partnership agreement work together to resolve the dispute between the parties and no additional terms are needed to understand or apply those agreements.   In the absence of any ambiguities in the two agreements, the court need not address the question of whether ambiguities should be construed against the defendants.¹²

IV

CONCLUSION

The court finds that, even when viewing the evidence in a light most favorable to the plaintiff, there are no genuine issues of material fact that preclude the entry of summary judgment.   The plaintiff, a sophisticated and highly experienced attorney who was represented by counsel, entered into an agreement that he acknowledges he read and understood.   His current counsel has identified aspects of the agreement that do not profit the plaintiff, but those aspects of the agreement were evident at the time the plaintiff signed the agreement.   This court concludes that the parties “meant what they said and said what they meant ․” Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 497.   Even if the settlement agreement was not as profitable to the plaintiff as he would like it to be, “[c]ourts do not unmake bargains unwisely made.”  (Internal quotation marks omitted.)  Id., 505–06.

For all of the foregoing reasons, the motion for summary judgment is granted.

So ordered.

BY THE COURT,

John A. Danaher, III

FOOTNOTES

FN1. The preamble to the settlement agreement states that “G & T” is a reference to the firm name of “Guendelsberger and Taylor,” which was the name of the firm at the time the plaintiff withdrew from it..  FN1. The preamble to the settlement agreement states that “G & T” is a reference to the firm name of “Guendelsberger and Taylor,” which was the name of the firm at the time the plaintiff withdrew from it.

FN2. The preamble to the settlement agreement states that “30 Park Lane” is a reference to 30 Park Lane, LLC which owns the land and building located at 30 Park Lane, New Milford, Connecticut..  FN2. The preamble to the settlement agreement states that “30 Park Lane” is a reference to 30 Park Lane, LLC which owns the land and building located at 30 Park Lane, New Milford, Connecticut.

FN3. Attorney Scott R. McCarthy left the firm on November 15, 2004..  FN3. Attorney Scott R. McCarthy left the firm on November 15, 2004.

FN4. Paragraph 16.01 sets forth a procedure to be followed if a “partner shall desire to withdraw voluntarily from the partership ․” The latter section identifies various sums to which the withdrawing partner will be entitled to receive..  FN4. Paragraph 16.01 sets forth a procedure to be followed if a “partner shall desire to withdraw voluntarily from the partership ․” The latter section identifies various sums to which the withdrawing partner will be entitled to receive.

FN5. Page references in citations to the exhibits are references to the Bates stamped page numbers within the exhibits, not the original pagination of the documents.   Paragraph references are to the original paragraph references in the documents..  FN5. Page references in citations to the exhibits are references to the Bates stamped page numbers within the exhibits, not the original pagination of the documents.   Paragraph references are to the original paragraph references in the documents.

FN6. The defendants also argued that the plaintiff failed to give written notice of his intention to withdraw from the partnership, as required by the partnership agreement, thus making him ineligible to receive any reimbursements of advances.   The plaintiff argues that Guendelsberger orally waived the requirement that the plaintiff provide such written notice and argues, further, that the question of waiver is an issue of fact.   The defendants deny giving such a waiver.   At oral argument, the defendants agreed that, for purposes of the adjudication of their summary judgment motion, they would not press their claims regarding the lack of written notice.   Therefore, the court will not consider the questions of whether the plaintiff was obligated to give written notice, whether he gave any such notice or whether he was relieved of any obligation to give written notice..  FN6. The defendants also argued that the plaintiff failed to give written notice of his intention to withdraw from the partnership, as required by the partnership agreement, thus making him ineligible to receive any reimbursements of advances.   The plaintiff argues that Guendelsberger orally waived the requirement that the plaintiff provide such written notice and argues, further, that the question of waiver is an issue of fact.   The defendants deny giving such a waiver.   At oral argument, the defendants agreed that, for purposes of the adjudication of their summary judgment motion, they would not press their claims regarding the lack of written notice.   Therefore, the court will not consider the questions of whether the plaintiff was obligated to give written notice, whether he gave any such notice or whether he was relieved of any obligation to give written notice.

FN7. It should be noted that the plaintiff claims that the defendants' counsel drafted the settlement agreement.   There is no evidence before the court, however, as to who drafted the 2006 partnership agreement.   Therefore, this argument cannot be applied with regard to ambiguities, if there are any, in the 2006 partnership agreement..  FN7. It should be noted that the plaintiff claims that the defendants' counsel drafted the settlement agreement.   There is no evidence before the court, however, as to who drafted the 2006 partnership agreement.   Therefore, this argument cannot be applied with regard to ambiguities, if there are any, in the 2006 partnership agreement.

FN8. One point on which the parties do agree is that there was a four-year cap, following December 31, 2006, relative to reimbursements that would be distributed to, inter alia, the plaintiff.   In other words, pursuant to the settlement agreement the plaintiff would have no claim against any reimbursement that came into the firm after December 31, 2010, regardless of when the funds were initially advanced and regardless of who advanced them..  FN8. One point on which the parties do agree is that there was a four-year cap, following December 31, 2006, relative to reimbursements that would be distributed to, inter alia, the plaintiff.   In other words, pursuant to the settlement agreement the plaintiff would have no claim against any reimbursement that came into the firm after December 31, 2010, regardless of when the funds were initially advanced and regardless of who advanced them.

FN9. At oral argument, the plaintiff acknowledged that any time-pressure on the parties to execute the settlement agreement was self-imposed and did not emanate from any external force..  FN9. At oral argument, the plaintiff acknowledged that any time-pressure on the parties to execute the settlement agreement was self-imposed and did not emanate from any external force.

FN10. The two gap periods in the 2006 partnership agreement are January 1, 2003, to June 1, 2003, and November 15, 2004, to December 31, 2006..  FN10. The two gap periods in the 2006 partnership agreement are January 1, 2003, to June 1, 2003, and November 15, 2004, to December 31, 2006.

FN11. At oral argument, the defendants contended that the reference to paragraph 7.06 was a scrivener's error..  FN11. At oral argument, the defendants contended that the reference to paragraph 7.06 was a scrivener's error.

FN12. Although the court need not decide this question, the court notes that the resolution of such a question would necessarily take into account the fact that both parties are sophisticated, both were represented by counsel and both negotiated a settlement of a commercial dispute.   See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 500..  FN12. Although the court need not decide this question, the court notes that the resolution of such a question would necessarily take into account the fact that both parties are sophisticated, both were represented by counsel and both negotiated a settlement of a commercial dispute.   See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 500.

Danaher, John A., J.