Opinion
No. CV06 5005223S
January 29, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO ENFORCE SETTLEMENT AGREEMENT
The named plaintiff brought this action in July of 2006, alleging that he had been sexually assaulted while a resident at a facility owned and operated by the defendant. He claims that sometime prior to October 26, 2003, he was "subject to inappropriate sexual advances from one of the other tenants" of the facility, and that on March 18, 2005, he was sexually assaulted by the same individual. The gravamen of this action is that the defendant failed to properly supervise the individual responsible for the attack and thus violated its duty of care to the plaintiff. The defendant filed an answer essentially denying the principal allegations of the plaintiff's complaint.
On August 11, 2008, the parties and their counsel, Timothy Gunning and David Hill participated in an afternoon-long mediation before Judge Angela Robinson in the New Haven Judicial District. At the conclusion of the mediation session, Gunning and Hill reported to Judge Robinson that the case had been settled for "X," conditioned on Gunning's ability to reduce a state lien and his firm's fee to numbers that would enable the plaintiff to recover the specific agreed-upon sum, and also conditioned upon probate court approval, as Pill's mother, Carolyn Hooker, had previously been appointed as conservator of Pitt's estate. Within a few days, however, Hooker had hired new counsel who insisted that Hooker had not agreed to the settlement. The defendant subsequently filed a motion, to which Hooker has objected, seeking to enforce the purported settlement agreement.
Counsel agree that the named plaintiff, a mentally retarded man, was not and is not capable of making decisions relevant to the disposition of this case. Throughout the proceedings, the plaintiff's then counsel, Timothy Gunning, Esq. was in contact with Carolyn Hooker, the plaintiff's mother, and it was she who was present at the mediation session along with Gunning and defense counsel, David Hill, Esq. It was not until after the mediation session, however, that the parties jointly filed a "agreement to substitute party plaintiff" making Carolyn Hooker, who had already been appointed by the Probate court as Pitt's conservator, the plaintiff in lieu of Pitt himself. Although the court had never acted on that agreement, this court treats Hooker as the person who was authorized to make decisions for Pitt relating to resolution of this case and on this date has approved her substitution as plaintiff.
As one of the conditions of the settlement between the parties was that the settlement amount remain confidential, this court will refer to that amount as "X."
On January 5, 2009, this court held a hearing, at which the court received several items of documentary evidence and heard the testimony of plaintiff's prior counsel, Timothy Gunning, Esq., and of Carolyn Hooker. Gunning testified that on August 12, the day after the mediation, Gunning had written to Susan Kitchens of the State of Connecticut Department of Administrative Services ("DAS"), advising her of the settlement and requesting that she agree to a lien reduction that, in conjunction with his firm's agreement to reduce its fee, would produce the net recovery that Hooker had said she would accept. Although Gunning testified that following a series of back and forth negotiations with Hill and with Judge Robinson's assistance, Hooker had unequivocally agreed to settle the case for "X," subject to the conditions just mentioned, in his letter to Kitchens, he had written that the "client's mother has yet to indicate that she would be willing to accept the figure as proposed." Gunning insists that his use of the phrase "figure as proposed" referred to the net amount payable to the client after liens, fees and costs, and not the "X" that was the outcome of the negotiations. The plaintiff, in contrast, argues that the language of this letter demonstrates that there was never an unambiguous agreement by Hooker to settle the case for any specific amount, and certainly not for "X." Indeed, Hooker herself testified that she never entered into an agreement to settle her son's case.
Moreover, Gunning's August 25, 2008 response to an August 15, 2008 letter from Hooker's present counsel, Martyn Philpot, Jr., Esq., to the effect that she had retained Philpot to take over the case, does not specifically mention either the mediation or a settlement agreement. It refers only to an "upcoming trial date," the "need for an appearance to be filed," and "the need for an expert to be disclosed and deposition scheduled immediately if the matter cannot be resolved." In addition, in his September 27, 2008 letter, Gunning confirms Philpot's agreement to protect Gunning's fees and costs and notes, "As you are aware, the defendant had offered ["X"] at the mediation in August." The plaintiff argues that Gunning's references to an impending trial and need for an expert witness in the first letter demonstrate Gunning's own belief that the case had not been settled, and that the reference only to an "offer" and not to an acceptance in the second letter tends to confirm that Hooker had not accepted that offer.
Although Gunning admitted that Hooker was clearly not thrilled by the result of the mediation, he was adamant that she had eventually authorized him to demand and accept on her behalf that sum as a full and final settlement of her son's case, subject to the conditions previously mentioned. He acknowledged that the agreement was neither reduced to writing at the time nor put on the record, and that Judge Robinson did not at any time speak directly with Hooker.
That 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" has been firmly established in our law at least since Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993). "Once reached, a settlement agreement cannot be repudiated by either party. Whether the parties in fact concluded a settlement agreement is determined by `the intention of the parties manifested by their words and acts.' Hess v. Dumouchel Paper Co., 154 Conn. 303, 347, 225 A.2d 797 (1966). The intention of the parties is a question of fact, and when that is ascertained it is conclusive. Ballard v. Asset Recovery Management Co., 30 Conn.App. 805, 809, 667 A.2d 1298, cert. denied, 236 Conn. 906, 670 A.2d 1306 (1996). A settlement agreement, freely bargained, is recognized as binding upon the parties. "In determining whether to enforce a settlement agreement, the intention of the parties is controlling and is the key consideration." (Citations omitted.) DAP Financial Management Co. v. Mor-Fam Electric, Inc., Superior Court, judicial district of New Haven, Docket No. CV 96 0383308 (September 4, 1998, Silbert, J.), aff'd, 59 Conn.App., 92, 755 A.2d 925 (2000).
Although the intention of the parties is more readily established if the agreement to settle is written and signed, or if the agreement is placed on the record and the parties canvassed by the court, neither party contends that such formalities are a necessary prerequisite to a finding that a settlement agreement was clear and unambiguous. What is required is that, once the validity of the agreement is challenged, the court be presented with evidence establishing that the settlement agreement was indeed clear and unambiguous and that it reflected the intent of the parties at the time that it was entered. A subsequent change of heart, sometimes referred to as "buyer's remorse," will not invalidate a settlement agreement to which all parties unambiguously agreed at the time the agreement was made. The question for the court in this case, therefore, is whether the August 11, 2008 mediation produced such a clear and unambiguous settlement agreement.
The plaintiff does not contend that the qualifications to the alleged settlement . . . that the State reduce its lien and that the Probate Court approve the agreement . . . in and of themselves render the agreement ambiguous. They were merely prerequisites which needed to be satisfied before money could exchange hands, and such conditions, especially those that require Probate Court or Workers' Compensation Commission approval, are relatively common in the settlement of civil cases.
The essence of Hooker's testimony was that she never authorized Gunning to demand or accept "X." To the contrary, she testified that she met with Gunning in his office before the mediation and insisted that she would accept nothing less than a different sum approximately three times greater than "X." She acknowledged that during the course of the mediation, Gunning would return from sessions with the judge and/or Attorney Hill with specific and increasing offers, but she claims that she never authorized him to reduce her demand in response. The court finds this portion of Hooker's testimony difficult to credit, as it is nearly impossible to conceive of a negotiation in the context of a mediation in which offers continue to rise despite the absence of any reduction in the amount demanded.
It is clear to the court that Hooker is a devoted mother, dedicated to doing the best she can for her son under difficult circumstances. The court has no doubt that she was not happy with the notion of "X" as a full and final settlement of her son's claims, and the court also has no doubt that she became increasingly unhappy about it the more she thought about it after the conclusion of the mediation. Disenchantment with a settlement agreement after the fact, however, would not be a legitimate basis for undoing such an agreement that is otherwise clear and unambiguous.
The court finds no basis to disbelieve Gunning's assertion that at the time, he felt that he had Hooker's unqualified, albeit reluctant, agreement to settle the case for "X." His subsequent use of the phrase, "the client's mother has yet to indicate that she would be willing to accept the figure as proposed," however, suggests somewhat less certainty, not only on Hooker's part, but also on his own. His later mention, in correspondence with Philpot, of an "offer," with no reference to an acceptance, also suggests less confidence that a settlement was actually consummated. While it is unfortunate that so much effort was expended to no avail, the court concludes that the ambiguity and uncertainty surrounding Hooker's alleged commitment to the agreement the conclusion of the negotiations renders the "agreement" inappropriate for enforcement by the court.
There is another, more practical reason, why the court should not order the plaintiff to settle the case for "X." Even if it had found the agreement to be clear and unambiguous, the court also recognizes that this is not a case in which it could simply order the plaintiff to sign the release and cash the check. The first problem is that the State of Connecticut would have had to agree to the lien reduction that would have produced the net figure that Gunning claimed that Hooker initially indicated she would accept, and there has been no evidence that the State has indicated its willingness to do so. While this was a result for which Gunning was prepared to advocate on Hooker's behalf, Philpot, acting on his new client's current instructions, is not. The Court could order Philpot to seek the proposed reduction, but he could not be effectively ordered to do so with vigor. The second problem is that even if the lien were to be reduced, the Probate Court would then have to approve the overall settlement. Gunning, who had advised Hooker to accept the settlement, is no longer involved in the case and therefore cannot advocate approval by the Probate Court. Although the court could order the plaintiff to seek such approval, Hooker has made it plain that she has no interest in succeeding in such an endeavor, and there is no reason to believe that Philpot, as her current legal representative, could becompelled to make an enthusiastic case to that court against his client's wishes. Under those circumstances, the prospects of fulfilling the conditions needed in order to consummate the settlement appear hopelessly remote, and granting the defendant's motion to enforce the settlement would have been an exercise in futility. Thus, while the conditions established as the prerequisites for the settlement did not in and of themselves make the agreement ambiguous, they, and especially the second, did render it unenforceable as a practical matter.
The defendant has suggested that the court's refusing to enforce this settlement agreement could open the door to rampant "buyer's remorse." While the court shares this concern to some degree, experience suggests that it is the relatively rare settlement agreement that falls apart, and most of those situations could be avoided if judges and lawyers are more attuned to identifying cases where the agreement needs to be reduced to writing and/or placed on the record in order to avoid later problems. There is always room in the briefcase for a few copies of a pre-printed Settlement Agreement form on which the terms of the agreement may be hand-written, with lines for signatures by the parties, or if not present, for counsel who should be required to represent that he or she is entering into the agreement with the full express authority of the client. Moreover, counsel should always feel free to request, nay, insist, that agreements negotiated in court be placed on the record if there is any concern that a party may later try to renege, a request (or insistence) that courts should readily accommodate.
For all of the above reasons, the Motion to Enforce the Settlement Agreement is denied.