Wheeler v. Beachcroft, LLC ( 2022 )

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CELIA WHEELER ET AL. v. BEACHCROFT,
LLC, ET AL.
(AC 44348)
Moll, Alexander and Suarez, Js.
Syllabus
The defendant B Co., which owned a portion of a residential housing develop-
ment adjacent to Long Island Sound, appealed to this court from the
judgment of the trial court summarily enforcing a settlement agreement
among the parties to resolve a dispute over access to the shore. The
plaintiffs, who owned interior lots in the development, had brought an
action to quiet title to an avenue that ran through the development as
well as to a lawn that abuts the sound at the end of the avenue. After
most of the parties’ claims were resolved during the course of the
litigation, counsel for some of the parties informed the trial court that
all of the parties had reached a settlement agreement and, thereafter,
entered two interrelated agreements on the record during a pretrial
hearing. The settlement agreement required, inter alia, that B Co. would
quitclaim the avenue to the town of Branford and P Co., a municipal
subdivision of the town, and grant the town an easement for the repair,
maintenance and replacement of a certain drainpipe at the end of the
avenue that ran toward the sound. After the court ordered that the case
had been reported settled, B Co. claimed that the defendants J and E,
who owned a waterfront lot in the development, had interfered with
the execution of the settlement agreement. B Co. filed a motion seeking
an order that J and E were bound by the agreement and had no right
to interfere with its implementation but later withdrew its motions for
order and to bind. J and E claimed that they were not bound by the
agreement. At a later hearing on motions to enforce the agreement that
were filed by the plaintiffs, the town and P Co., in which they asserted
that J and E were not bound by the agreement, the plaintiffs’ counsel
did not represent that J and E had signed off on the agreement. The court
then ordered the plaintiffs’ counsel to file a proposed order regarding
enforcement of the agreement. The court thereafter granted the plain-
tiffs’ motions to enforce the agreement, concluding that J and E were
not parties to the agreement and entering certain orders to implement
the agreement. Held:
1. B Co. could not prevail on its claim that the trial court erred in finding
that J and E were not parties to the settlement agreement, which was
based on B Co.’s assertions that whether they were parties to the agree-
ment was not before the court, that the record did not support the
court’s finding and that the court failed to conduct an evidentiary hearing
on the matter:
a. In determining that J and E were not parties to the settlement agree-
ment, the trial court addressed a question that was relevant to its adjudi-
cation of the motions to enforce the agreement, and, notwithstanding
B Co.’s claim that the issue of whether J and E were parties to the
agreement was not before the court as a result of its withdrawal of prior
motions it filed to bind them to the agreement, the status of J and E
was squarely before the court vis--vis the parties’ motions to enforce
the agreement.
b. The trial court did not abuse its discretion in finding that J and E
were not parties to the settlement agreement: during the pretrial hearing,
counsel for J and E unequivocally conveyed to the court that J and E
were not in agreement with the terms of the agreement, which no party
disputed, and counsel for J and E was not present when the plaintiffs’
counsel, without mentioning J and E, subsequently entered the agreement
on the record; moreover, the agreement, which imposed no obligations
on J and E, provided that it was without prejudice as to any claims by
or against them, and B Co.’s counsel did not identify J and E as parties,
and thereafter took the position that B Co. had not required J and E to
approve the agreement; furthermore, statements made by the plaintiffs’
counsel when he entered the agreement on the record and during the
subsequent hearing on the motions to enforce the agreement reasonably
could be construed to indicate that J and E, although not joining the
settlement agreement, were not objecting to the other parties’ presenting
the agreement to the court.
c. The trial court did not abuse its discretion by not conducting an
evidentiary hearing as to whether J and E were parties to the settlement
agreement: prior to and at the hearing on the motions to enforce the
agreement, B Co. did not pursue opportunities it had to make a request
to introduce evidence on that issue; moreover, at the hearing on the
motions to enforce the agreement, B Co.’s counsel answered affirmatively
when asked directly by the court to confirm that B Co. was no longer
seeking an order binding J and E to the agreement, and B Co.’s counsel
made no response to the court’s statements that it did not believe it was
necessary to hear evidence with respect to the motions to enforce.
2. Contrary to B Co.’s assertion, the trial court did not alter or omit material
terms contained in the settlement agreement when it entered orders to
implement the agreement, except for the court’s failure to include notice
and cooperation terms the agreement explicitly required:
a. This court determined that, under its case law, the abuse of discretion
standard of review applied to its consideration of B Co.’s claims.
b. The trial court did not abuse its discretion in its orders implementing
certain material terms of the settlement agreement in its enforcement
decision, as the court reasonably determined that Long Island Sound was
the southern boundary of a view easement contained in the settlement
agreement, it did not fail to order that the settlement agreement was
contingent on the execution of certain quitclaim deeds and releases, this
court having perceived no appreciable difference between the parties’
agreement that the settlement agreement was contingent on the execu-
tion of the documents at issue and the court’s ordering that all settlement
documents, which included those at issue, shall be executed, the enforce-
ment decision did not create confusion in describing the area in which
sitting and recreating was prohibited, as this court perceived no apprecia-
ble difference between the description of that area in the settlement
agreement and the enforcement decision, the court’s enforcement deci-
sion, read in its entirety, provided, contrary to B Co.’s claim, that the
town may maintain, repair and replace the drainpipe, the court did
not improperly omit, as B Co. claimed, a cooperation clause from its
enforcement decision, as the agreement contained no sweeping coopera-
tion clause but required the parties to cooperate as to the town’s acquisi-
tion of the avenue and as to other necessary approvals, and the court
did not improperly omit an order requiring the withdrawal and release
of claims by the parties in a related action.
c. The trial court improperly failed to include in its enforcement decision
an order that the town was required to provide reasonable notice to and
cooperate with B Co. in scheduling repair work on the drainpipe on B
Co.’s property for which the town had an easement: the notice and
cooperation terms were set forth explicitly in the settlement agreement,
the court did not include or refer to them in its enforcement decision,
and this court did not read them to be implicit in that decision; moreover,
it was apparent that the court intended to have the enforcement decision
encompass all material terms of the settlement agreement.
Argued November 9, 2021—officially released February 22, 2022
Procedural History
Action seeking, inter alia, a judgment declaring that
certain real property is a public way, and for other relief,
brought to the Superior Court in the judicial district of
New Haven and transferred to the judicial district of
Hartford, Complex Litigation Docket, where the court,
Bright, J., granted the motions by James R. McBurney
et al. to intervene as party defendants; thereafter, the
court, Shapiro, J., granted the motion of Peter Paquin
et al. to intervene as party plaintiffs and to file an
intervening complaint; subsequently, count one of the
plaintiffs’ and the intervening plaintiffs’ complaints
were tried to the court, Bright, J.; judgment for the
named defendant on count one of the plaintiffs’ and
intervening plaintiffs’ amended complaints; thereafter,
the court, Bright, J., granted in part the motions for
summary judgment filed by the named defendant and
the intervening defendants on the remaining counts of
the plaintiffs’ amended complaint and rendered partial
judgment thereon, from which the named defendant
and the intervening defendants filed separate appeals
with the Supreme Court, which affirmed the trial court’s
judgment; subsequently, the named defendant filed a
cross claim as against the defendant James R. McBurney
et al.; thereafter, the court, Moukawsher, J., denied the
motion for sanctions filed by the defendant James R.
McBurney et al., and granted the motions filed by the
named plaintiff et al. to enforce the parties’ settlement
agreement and rendered judgment thereon, from which
the named defendant appealed to this court. Reversed
in part; judgment directed.
Richard P. Colbert, with whom were Matthew J. Let-
ten and Gerald L. Garlick, for the appellant (named
defendant).
Joel Z. Green, with whom, on the brief, was Linda
Pesce Laske, for the appellees (named plaintiff et al.).
Peter J. Berdon, for the appellee (plaintiff Pine Hill
Orchard Association, Inc.).
Thomas J. Donlon, for the appellee (defendant town
of Branford).
Michael S. Taylor, with whom were Brendon P. Lev-
esque and, on the brief, Peter J. Zarella, for the appellees
(defendant James R. McBurney et al.).
Opinion
MOLL, J. This appeal is the latest episode in what
our Supreme Court has described as ‘‘a nearly century
old dispute among neighbors in a housing development
along the Long Island Sound (sound) over access to
the shore.’’1 Wheeler v. Beachcroft, LLC, 320 Conn. 146,
148, 129 A.3d 677 (2016). The defendant Beachcroft,
LLC,2 appeals from the judgment of the trial court sum-
marily enforcing a settlement agreement entered on the
record on the eve of trial. On appeal, the defendant
claims that the court (1) committed error in making a
finding that two intervening defendants, the McBur-
neys, were not parties to the settlement agreement, and
(2) improperly altered or omitted material terms of the
settlement agreement in summarily enforcing the settle-
ment agreement.3 We reverse the judgment of the trial
court only insofar as the court’s decision summarily
enforcing the settlement agreement omitted certain
terms of the settlement agreement, and we affirm the
judgment in all other respects.
The following facts, as drawn from a previous deci-
sion of our Supreme Court, and procedural history are
relevant to our resolution of this appeal. The dispute
in this matter centers on ‘‘a housing development
(development) that is located adjacent to the sound on
Crescent Bluff Avenue (avenue) in the town of Bran-
ford. . . . The development consists of thirty-five lots
in a long and narrow five acre tract of land. The narrow
end of the development borders the sound to the south,
with the avenue running north to south through the
development and perpendicular to the sound. Thirty-
one lots line the avenue in the interior of the develop-
ment. The avenue runs between the four waterfront
lots, with two lots on each side. The avenue ends at a
small strip of land (lawn) directly abutting the sound
. . . .’’ (Citation omitted.) Id., 150. The plaintiffs own
interior lots in the development, the McBurneys and
Lowlicht and Haedicke4 own waterfront lots in the
development, and the defendant owns the avenue and
part of the lawn in the development. Id. In addition,
there appears to be no dispute that the intervening
plaintiffs also own interior lots in the development.
In 2009, pursuant to General Statutes § 47-31,5 the
plaintiffs commenced the present quiet title action. The
plaintiffs’ third amended complaint, their operative
complaint filed on October 9, 2018, contained eleven
counts asserting various rights with respect to the ave-
nue and the lawn that were adverse to any interests
claimed by the defendant, the town, Pine Orchard Asso-
ciation, Inc., the intervening plaintiffs, the McBurneys,
and/or Lowlicht and Haedicke. The intervening plain-
tiffs’ amended complaint, their operative complaint
filed on July 12, 2012, contained eleven counts that
substantively tracked the plaintiffs’ claims.6 Addition-
ally, pursuant to § 47-31 (d),7 the defendant, the town,
Pine Orchard Association, Inc.,8 and Lowlicht and Hae-
dicke claimed interests in the avenue and the lawn.
The McBurneys did not file an answer and made no
statement pursuant to § 47-31 (d). Over the course of
the litigation, either by way of summary judgment or
following trial, the trial court ruled against the plaintiffs
and the intervening plaintiffs with respect to most of
their claims.9 The remaining claims were scheduled to
be tried on February 3, 2020.
On January 31, 2020, during a hearing conducted by
the court, Moukawsher, J., to address pretrial matters,
the court granted an oral motion made by the plaintiffs’
counsel to continue the trial to February 4, 2020, to
provide the parties with additional time to continue
ongoing settlement negotiations. On February 4, 2020,
with counsel for some, but not all, of the parties present
before the court, two interrelated settlement agree-
ments were entered on the record. The plaintiffs’ coun-
sel recited the terms of the first settlement agreement,
and the town’s counsel set forth the terms of the second
settlement agreement (collectively, settlement agree-
ment).10 The settlement agreement required, inter alia,
(1) the defendant to quitclaim a portion of the lawn,
along with an existing stairway and a triangular piece
of property containing the stairway, which together pro-
vided access from the avenue to the shore, to Pine
Orchard Association, Inc., (2) the parties to the settle-
ment agreement to ‘‘exchange mutual general releases
and . . . withdraw all pending claims and actions by
them,’’ (3) the defendant to quitclaim the avenue to the
town and to grant the town an easement to repair,
maintain, and replace a drainpipe, and (4) the town to
pay the defendant $200,000. The same day, the court
ordered that the case had been reported settled and
that, unless withdrawn sooner, the case would be dis-
missed on May 19, 2020.
On March 2, 2020, the defendant filed a motion titled
‘‘Motion for Order (in Aid of Settlement)’’ (motion for
order). The defendant asserted that, following the Feb-
ruary 4, 2020 hearing, the McBurneys had engaged in
conduct interfering with the execution of the settlement
agreement. As relief, the defendant requested that the
court order that the McBurneys (1) were bound by the
settlement agreement and (2) ‘‘ha[d] no rights to take
any action to interfere with the implementation of the
settlement agreement.’’11 On March 5, 2020, the McBur-
neys filed an objection, arguing, inter alia, that they
were not parties to the settlement agreement. Addition-
ally, the McBurneys requested that the court sanction
the defendant for filing the motion for order in bad
faith, vexatiously, wantonly, or oppressively.
On May 22, 2020, the plaintiffs, the town, and Pine
Orchard Association, Inc., each filed a motion to sum-
marily enforce the settlement agreement. In their
respective motions, the movants asserted that the
McBurneys were not parties to the settlement agree-
ment. On the same day, the defendant filed a motion
captioned ‘‘Motion to Bind McBurneys to Settlement
Agreement’’ (motion to bind), requesting that the court
order that the McBurneys (1) had no rights with respect
to its property, (2) were estopped from claiming any
right to interfere with the settlement agreement, and/or
(3) had waived any right to interfere with the settlement
agreement.
On June 12, 2020, the defendant withdrew the motion
for order and the motion to bind. On the same day, the
defendant filed a ‘‘response’’ to the motions to sum-
marily enforce the settlement agreement, stating, inter
alia, that it agreed that a global settlement had been
reached, and that, therefore, the court did not need to
adjudicate the pending motions.
On July 1, 2020, the court conducted a hearing on the
motions to summarily enforce the settlement agreement
and the McBurneys’ request for sanctions against the
defendant. No evidence was offered or admitted during
the hearing. After hearing argument from the parties,
the court ordered the plaintiffs’ counsel to file a pro-
posed order regarding enforcement of the settlement
agreement. The court also reserved its ruling on the
McBurneys’ request for sanctions against the defendant.
On July 9, 2020, in accordance with the court’s July 1,
2020 order, the plaintiffs filed a proposed order (original
proposed order). On July 14, 2020, the defendant filed
an objection to the original proposed order.
On July 14, 2020, the court denied the McBurneys’
request for sanctions against the defendant. In its order,
the court stated that ‘‘[the McBurneys] were not part
of the settlement [agreement] . . . .’’
On August 4, 2020, the court conducted a hearing
to address the defendant’s objections to the original
proposed order. On August 5, 2020, the plaintiffs filed an
amended proposed order (amended proposed order),
to which the defendant filed an objection on August
6, 2020.
On August 11, 2020, the court issued a memorandum
of decision granting the motions to summarily enforce
the settlement agreement (enforcement decision). As
part of the enforcement decision, the court found that
the McBurneys had ‘‘declined to participate in the settle-
ment agreement . . . .’’ In addition, the court entered
orders to implement the terms of the settlement agree-
ment. On August 31, 2020, the defendant filed a motion
to reargue, which the court denied on October 9, 2020.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
Before we analyze the defendant’s claims, we set
forth the following general legal principles relevant to
our resolution of this appeal. ‘‘In [Audubon Parking
Associates Ltd. Partnership v. Barclay & Stubbs, Inc.,
225 Conn. 804, 626 A.2d 729 (1993) (Audubon)], our
Supreme Court determined that a settlement agreement
resolving the issues in a pending case may be enforced
prior to and without the necessity of a trial: 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.
A court’s authority to enforce a settlement by entry of
judgment in the underlying action is especially clear
where the settlement is reported to the court during
the course of a trial or other significant courtroom
proceedings.’’ (Internal quotation marks omitted.) Com-
missioner of Transportation v. Lagosz, 189 Conn. App.
828, 837, 209 A.3d 709, cert. denied, 333 Conn. 912, 215
A.3d 1210 (2019). ‘‘Summary enforcement is not only
essential to the efficient use of judicial resources, but
also preserves the integrity of settlement as a meaning-
ful way to resolve legal disputes. When parties agree
to settle a case, they are effectively contracting for
the right to avoid a trial.’’ (Internal quotation marks
omitted.) Id., 838. ‘‘Nevertheless, the right to enforce
summarily a settlement agreement is not unbounded.
The key element with regard to the settlement agree-
ment in Audubon . . . [was] that there [was] no factual
dispute as to the terms of the accord. Generally, [a]
trial court has the inherent power to enforce summarily
a settlement agreement as a matter of law [only] when
the terms of the agreement are clear and unambiguous
. . . and when the parties do not dispute the terms of
the agreement. . . . The rule of Audubon effects a deli-
cate balance between concerns of judicial economy on
the one hand and a party’s constitutional rights to a
jury and to a trial on the other hand. . . . To use the
Audubon power outside of its proper context is to deny
a party these fundamental rights and would work a
manifest injustice.’’ (Citations omitted; internal quota-
tion marks omitted.) Reiner v. Reiner, 190 Conn. App.
268, 277, 210 A.3d 668 (2019).
I
We first turn to the defendant’s claim that the trial
court improperly made a finding that the McBurneys
had ‘‘declined to participate in the settlement agree-
ment,’’ which, in essence, is akin to a finding that the
McBurneys were not parties to the settlement agree-
ment. This claim is unavailing.
To put the defendant’s claim in its proper context, we
set forth the following additional facts and procedural
history. On January 31, 2020, respective counsel for
the plaintiffs, the defendant, the town, Pine Orchard
Association, Inc., the McBurneys, and Lowlicht and
Haedicke appeared before the court to discuss several
pretrial matters.12 During the hearing, the plaintiffs’
counsel stated that ‘‘very substantial progress’’ was
being made to settle the case and that a ‘‘tentative
agreement’’ had been reached with respect to the plain-
tiffs. The defendant’s counsel commented that, ‘‘[b]etween
[the plaintiffs] and [the defendant] we have an under-
standing, subject to documentation, as to how we can
resolve this case.’’ The town’s counsel indicated that
the town was ‘‘prepared if there’s a global resolution
. . . .’’ Counsel for Lowlicht and Haedicke stated that
Lowlicht and Haedicke ‘‘agree to that part of the settle-
ment that affects them. [They] don’t stand in the way
of it. [They are] not really affected by it, but [they] don’t
stand in the way of it.’’
The McBurneys’ counsel informed the court that ‘‘the
settlement that’s proposed has been circulated to [the
McBurneys] as well, and they cannot buy in or agree
to those terms. I’ve articulated this to, I believe, all
counsel. And I believe if this settlement is entered, that
there would be continuing litigation concerning this
property, although in a different facet.’’ The McBurneys’
counsel further stated that, although the proposed set-
tlement would ‘‘extinguish this case,’’ the ‘‘potential
settlement may result in additional litigation unrelated
to this particular matter, but directly related to the
settlement.’’ The plaintiffs’ counsel responded that ‘‘the
disposition of this case’’ would not be ‘‘affect[ed].’’ The
defendant’s counsel did not reply to the statements of
the McBurneys’ counsel.
On February 4, 2020, respective counsel for the plain-
tiffs, the defendant, the town, Pine Orchard Association,
Inc., and the McBurneys appeared before the court. At
the outset, the plaintiffs’ counsel informed the court
that ‘‘the plaintiffs have reached an agreement with [the
defendant] and [the defendant’s principal member] on
terms and conditions of settlement, which we would
like to recite for the record.’’ Immediately thereafter,
the court monitor began experiencing technological dif-
ficulties, and the court took a recess. Following the
recess, respective counsel for the plaintiffs, the defen-
dant, and the town reappeared before the court. The
plaintiffs’ counsel stated that counsel for Pine Orchard
Association, Inc., and counsel for the McBurneys had
left to attend to other matters. The plaintiffs’ counsel
continued: ‘‘However, we do have a—their consent. We
have an agreement. We have . . . terms and conditions
that all of the parties have agreed to in settlement of
this claim.’’13 The plaintiffs’ counsel further noted that,
although counsel for Lowlicht and Haedicke was not
present, he was ‘‘familiar with the terms and condi-
tions.’’ In reciting the terms of the first of the two settle-
ment agreements, the plaintiffs’ counsel stated that ‘‘it is
[the plaintiffs’] intention to withdraw without prejudice
the claims against . . . the McBurneys . . . and Low-
licht and Haedicke with the understanding that the
McBurneys and Lowlicht [and] Haedicke will similarly
withdraw without prejudice . . . any pleadings, their
defenses, and any statements of interest [pursuant to
§ 47-31 (d)] that they had filed in this case.’’
The defendant’s counsel stated that the terms of the
settlement agreement as recited were accurate, with
the exception of one minor misstatement made by the
plaintiffs’ counsel. The following exchange then
occurred:
‘‘[The Defendant’s Counsel]: . . . [J]ust to make it
clear, these two settlements that were reported are
interdependent. This is a global settlement. If one falls
through, the other one doesn’t happen.
‘‘The Court: You mean the town’s and the plaintiffs’?
‘‘[The Defendant’s Counsel]: And the plaintiffs’—
‘‘The Court: Yeah.
‘‘[The Defendant’s Counsel]: —interior lot owners,
[the defendant].
‘‘The Court: Right.
‘‘[The Defendant’s Counsel]: It all has to happen or
nothing happens.’’
In the defendant’s motion for order, the defendant
asserted that, following the February 4, 2020 hearing,
the McBurneys had (1) threatened to file a lawsuit if
the settlement agreement was effectuated, (2) con-
tacted Pine Orchard Association, Inc., to try to ‘‘block
the settlement [agreement],’’ and (3) claimed that the
settlement agreement was ‘‘ ‘unenforceable.’ ’’ The
defendant contended that it had not ‘‘require[d] the
McBurneys to approve the settlement [agreement]’’
because, as averred in an accompanying affidavit of
the defendant’s counsel, the McBurneys’ counsel had
advised the defendant’s counsel on February 4, 2020,
before the terms of the settlement agreement had been
read into the record, that the McBurneys ‘‘were not
going to do anything to interfere with the settlement
[agreement].’’ The defendant asked the court to order
that the McBurneys (1) were bound by the settlement
agreement and (2) ‘‘ha[d] no rights to take any action
to interfere with the implementation of the settlement
agreement.’’
In their objection to the motion for order, the McBur-
neys maintained that they were not parties to the settle-
ment agreement and denied making any assurance ‘‘to
‘not interfere’ with the settlement [agreement].’’ They
stated, as averred in an accompanying affidavit of their
counsel, that, on January 31, 2020, during settlement
discussions and in open court, their counsel conveyed
that they were not endorsing the terms of the settlement
being negotiated, particularly insofar as the settlement
would permit the defendant to erect a fence that the
McBurneys believed violated their property rights. They
further stated that (1) their counsel did not participate
in settlement discussions following the January 31, 2020
hearing, (2) in an e-mail thread generated on February
3, 2020, notifying the clerk of the trial court that a
settlement had been reached, the plaintiffs’ counsel
indicated that the plaintiffs would be withdrawing their
claims as to the McBurneys such that it was the McBur-
neys’ counsel’s ‘‘choice’’ whether he wanted to appear
before the court the next day, and (3) during the recess
taken on February 4, 2020, their counsel left to attend
another matter under the impression that all parties
were aware that the McBurneys were not in agreement
with the settlement terms.
On May 13, 2020, the court ordered, along with an
attendant briefing schedule, that May 22, 2020, was the
deadline by which the parties were permitted to file
motions to summarily enforce the settlement agree-
ment. On May 15, 2020, the defendant filed a motion
seeking a court order requiring that any responses to
discovery requests that it had served on the plaintiffs,
the McBurneys, and Pine Orchard Association, Inc.,
dated May 15, 2020, be served on or before June 1, 2020.
The defendant contended that the discovery requests
sought the production of documents that were ‘‘relevant
and material to the motions that will soon be filed with
regard to the settlement agreement . . . .’’ In subse-
quent filings, the defendant clarified that the discovery
would ‘‘be material and relevant to the issue of what
interest the McBurneys are suddenly . . . claiming in
[the defendant’s] property.’’ On June 4, 2020, the court
denied the defendant’s motion without prejudice, stat-
ing that ‘‘[t]he court’s first obligation is to review the
words the parties used without resort to unexpressed
intentions. If the moving party claims the matter cannot
be resolved without the documents at issue it should
make this argument in its briefing.’’ The same day, in
denying a case flow request filed by the plaintiffs seek-
ing an emergency status conference, the court stated
that ‘‘[the defendant] has been ordered to make its case
for the discovery in the briefing related to enforcement.
Any party objecting to the need for this discovery should
do the same. The court will determine whether discov-
ery is needed when considering first whether enforce-
ment may be considered without discovery. No party
need comply with the [defendant’s discovery] requests
until further order of the court.’’
In their motion to summarily enforce the settlement
agreement, the plaintiffs asserted that the defendant
was refusing to abide by the settlement agreement on
the basis of its insistence either that the McBurneys
were parties to the settlement agreement or that the
settlement agreement was contingent on the McBur-
neys being or becoming parties thereto. The plaintiffs
contended that the McBurneys were not parties to the
settlement agreement, which, the plaintiffs posited,
‘‘[the defendant] was fully aware of when [it] agreed to
the terms of the [settlement] agreement and knew when
the [settlement] agreement was recited into the record.’’
As relief, the plaintiffs asked the court to summarily
enforce the settlement agreement ‘‘entered into by the
parties and as presented to the court.’’ In the town’s
motion, the town asserted that ‘‘[i]t was agreed to and
reported that the settlement agreement . . . did not
need to involve [the McBurneys and Lowlicht and Hae-
dicke]; further, that these parties had been advised
through their attorneys of record of the details of the
settlement agreement, and that the plaintiffs would
withdraw the claims against them. It was mutually
acknowledged and understood by [respective] counsel
that this withdrawal would moot the defenses and state-
ments of interest [pursuant to § 47-31 (d)] that they had
filed, allowing the case to be withdrawn, and leaving
them to resolve, if they wished, their separate interests
as waterfront property owners, either by discussion or
by a separate action.’’ As relief, the town requested that
the court summarily enforce the settlement agreement
‘‘as between and among the parties to it . . . .’’ Pine
Orchard Association, Inc., adopted and incorporated
the town’s arguments into its respective motion.
In the defendant’s motion to bind, the defendant set
forth several arguments supporting its claim that the
‘‘settlement agreement should be binding on the McBur-
neys.’’ As relief, the defendant sought a court order
providing that the McBurneys (1) had no rights in its
property, (2) were estopped from claiming any right to
interfere with the settlement agreement, and/or (3) had
waived any right to interfere with the settlement agree-
ment.
In the defendant’s so-called response to the motions
to summarily enforce the settlement agreement, filed
following the withdrawals of the motion for order and
the motion to bind, the defendant stated that it
‘‘agree[d], as it ha[d] consistently claimed, that all par-
ties entered into a global settlement agreement [and]
that it is fully enforceable as [to] all parties.’’ (Emphasis
omitted.) The defendant argued that the court did not
need to consider the motions to summarily enforce
the settlement agreement because the defendant was
prepared to ‘‘effectuat[e] the settlement [agreement]
among all parties and then [enjoy] the benefits they
bargained for under that agreement.’’ The defendant
further stated that it ‘‘maintain[ed] that the McBurneys
ha[d] no rights over [its] property and what, if any,
rights they had were waived and/or are estopped. Once
the settlement agreement [was] fully implemented, [it]
intend[ed] to fully exercise and enjoy any and all of its
right[s] under the agreement. If that result[ed] in the
McBurneys claiming some purported rights, [it would]
dispense with those claims at that time.’’
The issue of whether the McBurneys were parties to
the settlement agreement was addressed during the July
1, 2020 hearing on the motions to summarily enforce
the settlement agreement and the McBurneys’ request
for sanctions against the defendant. To start, the court
explained its understanding that, with respect to the
McBurneys, all that was required under the settlement
agreement was a withdrawal of the plaintiffs’ claims
against them. The court then questioned whether, to
the extent that the McBurneys were seeking to claim
rights that were inconsistent with the settlement agree-
ment and to the extent that the defendant had argu-
ments in defense against those claims, such claims and
arguments were appropriate to raise in the present
action rather than in a separate proceeding. Relatedly,
the court questioned whether the McBurneys were par-
ties to the settlement agreement.
After several exchanges between the court and the
defendant’s counsel,14 the court stated that, ‘‘here, as
far as the McBurneys [go], it doesn’t seem like . . .
there’s now, now anyway, a claim by [the defendant]
that they’re . . . bound by the settlement [agreement]
because they agreed to it or some other legal argument
that would affect them and say that they’re bound by
the settlement [agreement]. They’re a party to the settle-
ment [agreement]. That’s not a claim now being pressed.
Is that . . . a correct understanding?’’ The defendant’s
counsel did not respond directly to that question,
instead indicating that the defendant had filed the
motion for order ‘‘to try and keep [the settlement agree-
ment] in place,’’ that the defendant ‘‘want[ed] to go
forward’’ with the settlement agreement, and that the
defendant’s ‘‘thought’’ was to pursue its claims against
the McBurneys in a cross claim that it had filed against
them approximately two months after the terms of the
settlement agreement had been placed on the record.15
The following colloquy then occurred:
‘‘The Court: Let me just get one thing clear . . . .
[I]t’s now [the defendant’s] position that it favors
enforcement of the settlement agreement as filed by
the other parties, that it is not seeking . . . to have
any sort of order binding the McBurneys here, and that
it wishes only that I deny the [McBurneys’] motion for
sanctions. Is that a fair representation of [the defen-
dant’s] current position . . . ?
‘‘[The Defendant’s Counsel]: Yes.’’
After hearing argument from the plaintiffs’ counsel,
the court stated: ‘‘I want to make clear that in setting
. . . this up, it seemed to me that what I was supposed
to focus on is what happened in front of me. There was
an agreement on the record in court, and if there was
something for me to enforce it would be that. And that’s
why I took the position that . . . I have to determine
whether there’s some ambiguity or some other reason
why I would go outside the terms that had been written
down and were read on the record in court [on February
4, 2020] . . . . [I] wouldn’t even get into testimony. It
would not appear that . . . there’s any reason for me
to be concerned about that at all since [the defendant]
. . . has changed its position about whether [the settle-
ment agreement is] enforceable under these circum-
stances . . . .’’ The defendant’s counsel did not object
to those statements.
Later, the court again asked the defendant’s counsel
to address whether the McBurneys had ‘‘consciously
join[ed]’’ the settlement agreement. The defendant’s
counsel responded that, prior to February 4, 2020, the
defendant did not believe that the McBurneys were in
agreement with the proposed settlement. However, he
further stated that (1) in light of a purported representa-
tion made by the McBurneys’ counsel to Attorney Ger-
ald L. Garlick, counsel for the defendant, before the
terms of the settlement agreement had been placed on
the record on February 4, 2020, (i.e., that the McBurneys
would not ‘‘interfere’’ with the settlement agreement),
and (2) upon hearing the plaintiffs’ counsel state during
the February 4, 2020 hearing, as paraphrased by the
defendant’s counsel, that he had ‘‘the consent of the
McBurneys and . . . an agreement [by] all parties [as]
to all terms,’’ the defendant subsequently believed that
the McBurneys were ‘‘joining in [the settlement] agree-
ment . . . [and were] stamping their approval on it.’’
In response, the court stated that ‘‘[what is] most con-
cerning for me here is a suggestion that the McBurneys
were affirmatively joining into th[e] settlement [agree-
ment] rather than just saying, look, you can withdraw
the action and we’re out of it, and we’ll do what we
want later.’’ The court further stated that the February
4, 2020 hearing transcript does not reflect that the plain-
tiffs’ counsel had represented that ‘‘the McBurneys
signed off on [the settlement agreement]. I know it
doesn’t say that.’’
The court then solicited comments from other coun-
sel. The plaintiffs’ counsel stated that ‘‘[t]he McBurneys
absolutely did not sign on to the terms and conditions
of the settlement [agreement]. They consented to my
presenting the settlement [agreement] to the court and
would not interfere and appear before the court to
object to the entry of a settlement amongst the parties
. . . who were signed onto th[e] [settlement] agree-
ment . . . . That was the import of my—[the McBur-
neys] consent[ed] to our presenting the settlement
[agreement], but they weren’t going to appear and lodge
an objection to the settlement [agreement] because they
had absolutely nothing to do with [it]. . . . [T]he action
was going to be withdrawn as to them.’’ The McBurneys’
counsel stated that ‘‘all the parties had a clear under-
standing . . . of the mechanics of the settlement
[agreement] and that the McBurneys weren’t part of
that, that there was essentially a settlement around
them by withdrawing claims.’’ The town’s counsel like-
wise concurred that the McBurneys were not parties
to the settlement agreement.
In discussing the motions to summarily enforce the
settlement agreement, the court observed that none of
the parties was opposing enforcement. The defendant’s
counsel stated that the defendant agreed that there was
a settlement agreement and that it did not object to the
motions to enforce it.
In the plaintiffs’ original proposed order, the plaintiffs
included a sentence providing that the McBurneys had
‘‘declined to participate in the settlement agreement
. . . .’’ In its objection to the original proposed order,
the defendant argued that the February 4, 2020 hearing
transcript does not reflect that the McBurneys had
‘‘ ‘declined to participate in the settlement agreement.’ ’’
Additionally, on July 13, 2020, the McBurneys
objected to the original proposed order ‘‘to the extent
it is construed in any way as a judgment of the court as
to the McBurneys’ rights in the subject matter thereof.
Instead, the [original] proposed order should be under-
stood as an order of the court limited to enforcement
of the contractual rights between the parties to the
settlement agreement (which does not include the
McBurneys).’’ In an ensuing ‘‘response/objection’’ that
the defendant filed on July 14, 2020, the defendant
argued that the court should not adjudicate any settle-
ment enforcement issues concerning the McBurneys,
which would be ‘‘fully and fairly litigated in another
forum.’’16
On July 14, 2020, in denying the McBurneys’ request
for sanctions against the defendant, the court stated
in relevant part: ‘‘The court would not sanction [the
defendant] for trying to get heard on its claim that, on
various legal grounds, the [McBurneys] may not inter-
fere with the settlement [agreement] that resolved this
litigation. [The defendant] is accused, though, of mis-
representing to the court that the McBurneys agreed
to be bound by th[e] settlement [agreement]. The court
knows from the proceedings in front of it and the par-
ties’ submissions that this is not true. This is a motion
for sanctions and not a matter of discerning the settle-
ment terms, [s]o the court can look beyond the letter
of the [settlement] agreement to the circumstances.
[The defendant’s] counsel has sworn that the McBur-
neys’ lawyers said outside the courtroom [on February
4, 2020] that the McBurneys would not interfere with the
settlement [agreement], and, indeed, the McBurneys’
counsel was silent while in court [on February 4, 2020]
and left court early. The McBurneys may contend with
full justification that they did not give up by virtue of
the settlement [agreement] any rights they had—they
are right that they were not part of the settlement
[agreement]—but that doesn’t mean [the defendant]
could only have asserted its beliefs in bad faith.’’
(Emphasis added.)
The issue regarding the McBurneys’ status with
respect to the settlement agreement was addressed
again during the August 4, 2020 hearing on the original
proposed order. During the hearing, the defendant’s
counsel iterated that no issues regarding the McBurneys
should be addressed in the court’s summary enforce-
ment of the settlement agreement. The defendant’s
counsel further asserted that the issue of whether the
McBurneys had assented to the settlement agreement
had not been adjudicated, as the defendant had with-
drawn the motion for order and the motion to bind
without any discovery being permitted or an evidentiary
hearing being conducted relating to that issue. The
defendant’s counsel maintained that the court ‘‘shouldn’t
take a position one way or the other as to whether the
McBurneys ha[d] adopted the settlement [agreement],
[were] part[ies] to it, or ha[d] agreed to do anything in
connection with [it] [b]ecause we just haven’t adjudi-
cated the issue.’’
In response, the court stated that ‘‘what I believe
happened was that [the plaintiffs’ counsel] moved to
enforce the settlement [agreement]. And I conducted a
hearing about that, and I concluded that the McBurneys
were not part of the settlement [agreement]. And that
much is decided. . . . So, regardless of the motion that
[the defendant] may have made . . . I was hearing the
motion that [the plaintiffs’ counsel] made to enforce
th[e] settlement [agreement]. And it was clear that the
McBurneys were not part of it. And that’s going to be
part of my order. But I’m not resolving the relationship
between [the defendant] and [the] McBurney[s]. I’m
just—they were not . . . part[ies] to the settlement
[agreement]. That’s what I concluded from the hearing.
That’s what I ordered [the plaintiffs’ counsel] . . . to
prepare a proposed order for.’’ (Emphasis added.) The
court permitted the defendant’s counsel to comment,
and the following colloquy occurred:
‘‘[The Defendant’s Counsel]: . . . [M]y final com-
ment will be: We were not given an opportunity for
discovery. We were not given an opportunity to present
evidence at the [July 1, 2020] hearing. You had indicated
that there would not be any evidence or testimony at
that hearing. You cannot—
‘‘The Court: Because I concluded I didn’t need it.
‘‘[The Defendant’s Counsel]: Well, in my view,
Judge—
‘‘The Court: It was a question of law.
‘‘[The Defendant’s Counsel]: Yes, Judge. In all due
respect, I think that testimony of people as to what
they said, what authority they had, and what effect
those words that were spoken to [the defendant]—both
[to Attorney Garlick] and to [the defendant] on the
record and before and the effect that it had on them
in relation to the settlement [agreement] is relevant
testimony. And, you know, again, I’m just going to—
‘‘The Court: I find that we discussed this already at
the—at the hearing that I held on it. And that I concluded
that discovery wasn’t warranted. The question was sim-
ply: What was the agreement that was placed on the
record before the court? And which didn’t call for out-
side evidence. Because it was clear to me that my focus
was on what was said on the record. And I’m not going
to spend any more time debating it. Because I know
what happened at the hearing. I know that I already
considered that issue and indicated what I was doing.
And this was solely about the fact that I imposed on
[the plaintiffs’ counsel] the obligation to give me a draft
order that reflected what I had concluded on the record.
So . . . this discussion is over with respect to that.’’
The next day, the plaintiffs filed the amended pro-
posed order, which retained the language reflecting that
the McBurneys had ‘‘declined to participate in the settle-
ment agreement . . . .’’ In its objection to the amended
proposed order, the defendant again argued that the
February 4, 2020 hearing transcript does not reflect
that the McBurneys had ‘‘ ‘declined to participate in the
settlement agreement.’ ’’
In the enforcement decision, the court noted that, on
July 1, 2020, it conducted an Audubon hearing17 and
that, although the defendant had ‘‘requested discovery
and a trial-type hearing on the terms [of the settlement
agreement] . . . the court found no ambiguity in the
recorded terms, thus rendering th[e] settlement [agree-
ment] summarily enforceable with no need for discov-
ery and testimony.’’
Additionally, the court stated: ‘‘The present action
was scheduled for a trial of all issues on . . . February
4, 2020. At that time, counsel for the plaintiffs together
with counsel for [the defendant] and [the town]
appeared before the court and presented and stipulated
to the terms and conditions of a settlement agreed to
by those parties to the present action along with [Pine
Orchard Association, Inc.] that disposed of any and
all claims alleged by and between them in the above
referenced matter . . . . The [self-represented]
intervening plaintiffs . . . received notice of the sched-
uled hearing but declined to attend the hearing. The
plaintiffs, however, represented to the court that the
intervening plaintiffs had been advised of, and con-
sented to, the terms and conditions of the settlement
agreement presented to the court.
‘‘[The McBurneys and Lowlicht and Haedicke]
declined to participate in the settlement agreement, and
it was represented to the court that any and all claims
alleged against and/or by [them], if any, in the present
action would be withdrawn upon implementation of the
settlement agreement. The transcript [of the February
4, 2020 hearing] expressly reflects that while all parties
agreed that this case was ending, the agreement was
that it was ending for [the McBurneys and Lowlicht and
Haedicke] ‘without prejudice’ to their claims or the
claims against them.’’
In its motion to reargue, the defendant argued that
the court resolved the issue of whether the McBurneys
were parties to the settlement agreement without per-
mitting discovery or conducting an evidentiary hearing
notwithstanding that the issue was a disputed question
of fact. In denying the motion to reargue, the court
stated that ‘‘[t]he court’s ruling was based on the unam-
biguous recitation of the terms of the [settlement] agree-
ment in court made in the presence of and with the
agreement of counsel for [the defendant]. One plain
term of the agreement was that the settlement of this
case was without prejudice to the McBurney claims.
Therefore, no testimony was required.’’
In addition, on September 8, 2020, the McBurneys
filed a motion for clarification, requesting that the court
clarify that the enforcement decision concerned
‘‘merely the court’s enforcement of a settlement agree-
ment amongst certain parties not including the McBur-
neys, that the [enforcement decision] should not be
construed as making any determination of any of [the]
McBurneys’ claimed rights, or the rights of any other
nonparty, in the easement at issue in the settlement
agreement, and that the [enforcement decision] should
not be construed as enforceable against anyone other
than parties to the settlement agreement . . . .’’
(Emphasis omitted.) On September 17, 2020, the court
denied the motion for clarification, stating that ‘‘[t]he
court has already made clear that the termination of
this lawsuit was without prejudice to any claims by or
against the McBurneys.’’
In claiming that the court committed error in making
a finding that the McBurneys were not parties to the
settlement agreement, the defendant asserts that (1)
the issue of whether the McBurneys were parties to
the settlement agreement was not before the court for
consideration, (2) the record does not support the
court’s finding, and (3) the court improperly failed to
conduct an evidentiary hearing. We address, and reject,
each of these contentions in turn.
A
We first address the defendant’s assertion that the
court improperly addressed the question of whether the
McBurneys were parties to the settlement agreement
because that issue was not pending before it. The defen-
dant contends that, following its withdrawals of the
motion for order and the motion to bind, there was no
motion before the court requiring a determination as to
whether the McBurneys were parties to the settlement
agreement. This claim fails.
‘‘At the outset, we note that [p]leadings have their
place in our system of jurisprudence. While they are
not held to the strict and artificial standard that once
prevailed, we still cling to the belief, even in these
iconoclastic days, that no orderly administration of jus-
tice is possible without them. . . . It is fundamental in
our law that the right of a [party] to recover is limited
to the allegations in his [pleading]. . . . Facts found
but not averred cannot be made the basis for a recovery.
. . . Thus, it is clear that [t]he court is not permitted
to decide issues outside of those raised in the pleadings.
. . . It is equally clear, however, that the court must
decide those issues raised in the pleadings.’’ (Citations
omitted; internal quotation marks omitted.) Shapero v.
Mercede, 77 Conn. App. 497, 503–504, 823 A.2d 1263(2003). This rationale extends equally to motions. See,
e.g., Chang v. Chang, 197 Conn. App. 733, 750–53, 232
A.3d 1186 (2020); Breiter v. Breiter, 80 Conn. App. 332,
335–36, 835 A.2d 111 (2003). ‘‘[A]n interpretation of the
pleadings in the underlying action . . . presents a
question of law and is subject to de novo review on
appeal.’’ (Internal quotation marks omitted.) Breiter v.
Breiter, supra, 335.
Here, notwithstanding the defendant’s withdrawals
of the motion for order and the motion to bind, the
McBurneys’ status as to the settlement agreement was
squarely before the court vis--vis the motions to sum-
marily enforce the settlement agreement, in which all
of the movants sought summary enforcement of the
settlement agreement with respect to the parties to the
settlement agreement, which, as the movants claimed,
did not include the McBurneys. Indeed, during the
August 4, 2020 hearing, the court stated that the plain-
tiffs had ‘‘moved to enforce the settlement [agreement].
And I conducted a hearing about that and I concluded
that the McBurneys were not part of the settlement
[agreement]. . . . So regardless of the motion that [the
defendant] may have made . . . I was hearing the
motion that [the plaintiffs’ counsel] made to enforce
th[e] settlement [agreement]. . . . [The McBurneys]
were not . . . part[ies] to the settlement [agreement].
That’s what I concluded from the hearing.’’ Accordingly,
we conclude that, in determining that the McBurneys
were not parties to the settlement agreement, the court
addressed a question relevant to its adjudication of the
motions to summarily enforce the settlement agree-
ment.
B
We next turn to the defendant’s assertion that the
court’s finding that the McBurneys were not parties to
the settlement agreement is not supported by the
record. We disagree.
‘‘[T]o the extent that the defendant[’s] claim impli-
cates the court’s factual findings, our review is limited
to deciding whether such findings were clearly errone-
ous. . . . A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
Commissioner of Transportation v. Lagosz, supra, 189
Conn. App. 841.
On the basis of the record before the court, we con-
clude for the following reasons that the court’s finding
that the McBurneys were not parties to the settlement
agreement is not clearly erroneous. First, during the
January 31, 2020 hearing, the McBurneys’ counsel
unequivocally conveyed that the McBurneys were not
in agreement with the terms of the settlement being
negotiated, and no party disputed that representation.
Second, during the February 4, 2020 hearing, with
respective counsel for the plaintiffs, the defendant, the
town, Pine Orchard Association, Inc., and the McBur-
neys present, the plaintiffs’ counsel represented to the
court that ‘‘the plaintiffs [had] reached an agreement
with [the defendant] and [the defendant’s principal
member] on terms and conditions of settlement . . . .’’
The plaintiffs’ counsel did not mention the McBurneys
as being part of the settlement agreement. Third, during
the February 4, 2020 hearing, the following colloquy
occurred between the court and the defendant’s coun-
sel:
‘‘[The Defendant’s Counsel]: . . . [J]ust to make it
clear, these two settlements that were reported are
interdependent. This is a global settlement. If one falls
through, the other one doesn’t happen.
‘‘The Court: You mean the town’s and the plaintiffs’?
‘‘[The Defendant’s Counsel]: And the plaintiffs—
‘‘The Court: Yeah.
‘‘[The Defendant’s Counsel]: —interior lot owners,
[the defendant].
‘‘The Court: Right.
‘‘[The Defendant’s Counsel]: It all has to happen or
nothing happens.’’
The defendant’s counsel did not identify the McBurneys
as parties to the settlement agreement during that
exchange. Fourth, the McBurneys’ counsel was not
present at the time that the settlement agreement was
read into the record, and at no time prior to his depar-
ture from the courtroom did the McBurneys’ counsel
state on the record that the McBurneys had changed
their position as conveyed to the court during the Janu-
ary 31, 2020 hearing. Fifth, the settlement agreement,
which imposed no obligations on the McBurneys, pro-
vided that it was without prejudice to any claims by or
against them.18 Sixth, the defendant itself, in its motion
for order filed approximately one month after the Feb-
ruary 4, 2020 hearing, took the position that it had
‘‘not require[d] the McBurneys to approve the settle-
ment [agreement].’’
The defendant stresses that the February 4, 2020 hear-
ing transcript does not support the finding that the
McBurneys were not parties to the settlement agree-
ment because it demonstrates that, after noting that
respective counsel for Pine Orchard Association, Inc.,
and the McBurneys were not present in the courtroom,
the plaintiffs’ counsel represented that ‘‘we do have a—
their consent. We have an agreement. We have . . .
terms and conditions that all of the parties have agreed
to in settlement of this claim.’’ In light of the contents
of the record described in the preceding paragraph,
however, we agree with the court’s statement during
the July 1, 2020 hearing that the plaintiffs’ counsel did
not represent that ‘‘the McBurneys signed off on [the
settlement agreement].’’ Considered in context, the
statements by the plaintiffs’ counsel reasonably can be
construed to indicate that the McBurneys, although not
joining the settlement agreement, were not objecting
to the other parties’ presenting the settlement agree-
ment to the court.19
In sum, we conclude that the court did not err in finding
that the McBurneys were not parties to the settlement
agreement.
C
Last, we address the defendant’s assertion that the
court improperly resolved the question of whether the
McBurneys were parties to the settlement agreement
without conducting an evidentiary hearing. We are not
persuaded.
‘‘We consistently have held that, unless otherwise
required by statute, a rule of practice or a rule of evi-
dence, whether to conduct an evidentiary hearing gen-
erally is a matter that rests within the sound discretion
of the trial court.’’ (Internal quotation marks omitted.)
DeRose v. Jason Robert’s, Inc., 191 Conn. App. 781, 797,
216 A.3d 699, cert. denied, 333 Conn. 934, 218 A.3d
593 (2019). ‘‘In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling. . . . Reversal is required only where an abuse
of discretion is manifest or where injustice appears to
have been done. . . . Discretion means a legal discre-
tion, to be exercised in conformity with the spirit of
the law and in a manner to subserve and not to impede
or defeat the ends of substantial justice. . . . It goes
without saying that the term abuse of discretion does
not imply a bad motive or wrong purpose but merely
means that the ruling appears to have been made on
untenable grounds.’’ (Internal quotation marks omit-
ted.) St. Denis-Lima v. St. Denis, 190 Conn. App. 296,
304, 212 A.3d 242, cert. denied, 333 Conn. 910, 215 A.3d
734 (2019). The defendant does not argue that the court
violated any statute, rule of practice, or rule of evidence
by not conducting an evidentiary hearing, and, there-
fore, we consider whether the court’s inaction consti-
tuted an abuse of discretion.
Under the circumstances of this case, we conclude
that the court did not abuse its discretion by not con-
ducting an evidentiary hearing as to the issue of whether
the McBurneys were parties to the settlement agree-
ment. At no point prior to the July 1, 2020 hearing
did the defendant request an opportunity to present
evidence as to that specific issue, which, as we explained
in part I A of this opinion, the plaintiffs, the town, and
Pine Orchard Association, Inc., had placed before the
court by way of their respective motions to summarily
enforce the settlement agreement.20 During the July 1,
2020 hearing, when asked directly by the court to con-
firm that the defendant was no longer seeking from the
court an order binding the McBurneys to the settlement
agreement, the defendant’s counsel answered affirma-
tively. Furthermore, the defendant’s counsel made no
response to the court’s statements that, on the basis of
his representations, the court did not believe that it was
necessary to hear evidence with respect to the motions
to enforce the settlement agreement. Although the
defendant’s counsel made some comments suggesting
that the defendant believed that the McBurneys were
parties to the settlement agreement, those comments,
at most, reflected that the defendant was not conceding
that the McBurneys were not parties to the settlement
agreement. We do not, however, construe those com-
ments as overriding the affirmation made by the defen-
dant’s counsel that the defendant was no longer seeking
to bind the McBurneys to the settlement agreement
or to reflect that the defendant was pressing for an
evidentiary hearing. Thus, at the end of the July 1, 2020
hearing, it could be reasonably concluded that there
was no need to hold an evidentiary hearing as to
whether the McBurneys were parties to the settlement
agreement.
After the July 1, 2020 hearing, the defendant argued
that it was not given an opportunity to present evidence
on the issue of whether the McBurneys were parties to
the settlement agreement. As the court observed during
the August 4, 2020 hearing, however, that issue was
addressed and resolved at the July 1, 2020 hearing. The
defendant had opportunities, both prior to and at the
July 1, 2020 hearing, to make a request to introduce
evidence on that issue; however, the defendant did not
pursue those opportunities. We cannot fault the court
for not conducting an evidentiary hearing in this situa-
tion.
In sum, in light of the foregoing circumstances, we
conclude that the court did not abuse its discretion by
not conducting an evidentiary hearing as to the question
of whether the McBurneys were parties to the settle-
ment agreement.
II
The defendant next claims that, in summarily enforc-
ing the settlement agreement, the trial court improperly
altered or omitted material terms of the settlement
agreement. For the reasons that follow, we agree with
the defendant only insofar as the court omitted one
material set of terms of the settlement agreement from
the enforcement decision; we otherwise reject the
defendant’s remaining contentions.
The following additional facts and procedural history
are relevant to our resolution of this claim. During the
July 1, 2020 hearing, the court ordered the plaintiffs to
file a proposed order with regard to the motions to
summarily enforce the settlement agreement. Of
import, the court conveyed to the plaintiffs that it
wanted ‘‘to have a single document that’s an order of
the court that lays out all the elements [of the settlement
agreement].’’
Both the original proposed order and the amended
proposed order, as described by the plaintiffs, con-
tained ‘‘orders to enforce the settlement agreement that
[were] in conformity with the terms and conditions of
the settlement agreement except as to the timing of the
implementation of the settlement [agreement] . . . .’’21
In its objections to the original proposed order and the
amended proposed order, the defendant argued that
the plaintiffs had altered or omitted material terms of
the settlement agreement.
In the enforcement decision, the court entered orders
to implement the terms of the settlement agreement,
which we will further discuss in part II B of this opinion.
Before setting forth those orders, the court ‘‘found that
the draft order submitted by the plaintiffs conformed
to the unambiguous terms of the settlement [agreement]
as recorded, with one exception [addressed by the
court]. Having addressed that legitimate concern, this
order reflects what the parties plainly agreed to when
recording the settlement [agreement] and provides detail
when needed, not to in any way change the agreement,
but as a matter solely of enforcing what was unambigu-
ously agreed.’’ In its motion to reargue, the defendant
contended that the court’s enforcement decision con-
flicted with the terms of the settlement agreement. In
denying the motion to reargue, the court stated that
‘‘[t]he court’s ruling was based on the unambiguous
recitation of the terms of the [settlement] agreement
in court made in the presence of and with the agreement
of counsel for [the defendant].’’
A
Before turning to the merits of the defendant’s claim,
we address the parties’ dispute as to the applicable
standard of review. The town and Pine Orchard Associa-
tion, Inc., contend that the abuse of discretion standard
applies. The plaintiffs argue in favor of a ‘‘deferential’’
standard of review. In contrast, the defendant asserts
that we should apply plenary review. We conclude that
the proper standard of review is the abuse of discretion
standard.
In Vance v. Tassmer, 128 Conn. App. 101, 16 A.3d
782 (2011), appeal dismissed, 307 Conn. 635, 59 A.3d
170 (2013), this court considered whether, in summarily
enforcing a settlement agreement, a trial court had
exceeded the scope of the agreement by conveying
certain real property to the plaintiffs. Id., 108–109, 117.
In reviewing that claim, this court explained that ‘‘[i]t
is axiomatic that courts do not rewrite contracts for
the parties. Herbert S. Newman & Partners, P.C. v.
CFC Construction Ltd. Partnership, 236 Conn. 750,
760, 674 A.2d 1313 (1996). In determining whether the
court went beyond the scope of the settlement agree-
ment . . . we review the court’s decision for an abuse
of discretion. See Waldman v. Beck, 101 Conn. App.
669, 673, 922 A.2d 340 (2007). ‘[T]he court’s authority
in such a circumstance is limited to enforcing the undis-
puted terms of the settlement agreement that are clearly
and unambiguously before it, and the court has no dis-
cretion to impose terms that conflict with the agree-
ment. See Janus Films, Inc. v. Miller, 801 F.2d 578,
582 (2d Cir. 1986) (‘‘[i]n determining the details of relief
[pursuant to a settlement agreement], the judge may
not award whatever relief would have been appropriate
after an adjudication on the merits, but only those pre-
cise forms of relief that are either agreed to by the
parties . . . or fairly implied by their agreement’’
. . .).’ Waldman v. Beck, supra, 673–74.’’ Vance v. Tas-
smer, supra, 117. Similarly, in Waldman, this court
applied the abuse of discretion standard in addressing
whether, in summarily enforcing a settlement agree-
ment, a trial court had exceeded the scope of the agree-
ment by rendering judgment against the defendant. See
Waldman v. Beck, supra, 673–74. As Vance and Wald-
man demonstrate, the abuse of discretion standard
applies when the question before this court is whether,
in summarily enforcing a settlement agreement, a trial
court has exceeded the bounds of the agreement.
The defendant acknowledges the aforementioned
language but, nevertheless, contends that plenary
review applies. The defendant relies on Aquarion Water
Co. of Connecticut v. Beck Law Products & Forms, LLC,
98 Conn. App. 234, 907 A.2d 1274 (2006) (Aquarion),
to support its proposition. This reliance is misplaced.
In Aquarion, the defendants claimed on appeal that the
trial court, in summarily enforcing a settlement agree-
ment, ‘‘went beyond the scope of the settlement agree-
ment’’; id., 243; by (1) rendering judgment of possession
in the plaintiffs’ favor and (2) awarding the plaintiffs
attorney’s fees and costs pursuant to a provision of the
agreement. Id., 242–43. With respect to the first claim,
this court applied the abuse of discretion standard and
concluded that the trial court acted within the scope
of the settlement agreement by rendering judgment of
possession, agreeing with the plaintiffs’ argument that
the settlement agreement at issue was ‘‘the functional
equivalent of a judgment of possession . . . .’’ (Internal
quotation marks omitted.) Id., 242. With respect to the
second claim, this court determined that the defen-
dants’ contention—that the provision in the settlement
agreement providing for attorney’s fees and costs in
any future actions did not permit an award of attorney’s
fees and costs in the underlying action—raised a ques-
tion of law. See id., 243. Accordingly, this court applied
plenary review; see id.; and concluded that the attor-
ney’s fees and costs award was improper, as a matter
of law, ‘‘on the basis of the settlement agreement.’’
Id., 244.
This court’s treatment of the first claim in Aquarion
aligns with the principle set forth in Vance and Wald-
man that the question of whether a court has exceeded
the scope of a settlement agreement when summarily
enforcing it is subject to the abuse of discretion stan-
dard.22 In contrast, at its core, the second claim in
Aquarion did not concern the trial court’s enforcement
of the settlement agreement but, rather, the court’s
award of attorney’s fees and costs pursuant to the agree-
ment on the basis of its interpretation of the agreement.
This distinction explains the two separate standards of
review applied by this court to the two different claims
raised in Aquarion.
In sum, pursuant to Vance, Waldman, and Aquarion,
the abuse of discretion standard applies to the defen-
dant’s claim that the court committed error in enforcing
the settlement agreement by altering or omitting mate-
rial terms of the settlement agreement.
B
The defendant raises seven issues as part of its claim
that, in the enforcement decision, the court improperly
altered or omitted material terms of the settlement
agreement. We address each issue in turn.
1
First, the defendant asserts that the court improperly
expanded the southern boundary of a view easement23
that would encumber a portion of the defendant’s prop-
erty pursuant to the settlement agreement. We disagree.
The settlement agreement provides that a portion of
the lawn owned by the defendant ‘‘shall be subject
to a viewscape easement, prohibiting the erection or
placement of any permanent structure that is taller than
30 inches and/or any landscaping that is taller than 30
inches, nor any personal property that unreasonably
impairs or blocks this viewscape easement. [Certain]
gardens at the top of . . . riprap24 in the view easement
area can remain at their current height. The eastern
line of the view easement shall be a straight line from
the [avenue] to the riprap along the westernmost edge of
[certain other] gardens [on the east side of the lawn].’’
(Emphasis added; footnote added.) In the enforcement
decision, the court ordered that the portion of the lawn
at issue ‘‘shall be subject to a viewscape easement pro-
hibiting the erection or placement of any permanent
structure that is taller than thirty (30’’) inches and/or
any landscaping that is taller than thirty (30’’) inches,
nor any personal property that unreasonably impairs
or blocks the view of [the sound] from the avenue (the
‘viewscape easement’). The gardens at the top of the
riprap in the viewscape easement area can remain at
the height that existed during February of 2020. . . .
The eastern boundary line of the viewscape easement
shall be a straight line that . . . shall extend from the
southerly boundary line of the portion of the avenue
to be conveyed to the town . . . to [the sound] and
shall run along the westernmost edge of the existing
gardens on the east side of the lawn. The viewscape
easement shall be bounded to the south by [the
sound].’’25 (Emphasis added.)
The defendant asserts that, pursuant to the settle-
ment agreement, the southern boundary of the view
easement is coterminous with the edge of the riprap,
meaning that neither the riprap nor the sound, which
is located below the riprap, is subject to the view ease-
ment. We are not persuaded. The settlement agreement
does not expressly define the southern boundary of the
view easement, providing only that the eastern bound-
ary of the easement extends from the southern bound-
ary line of the avenue ‘‘to the riprap . . . .’’ Notably,
in the preceding sentence, the settlement agreement
refers to gardens located ‘‘at the top of the riprap
. . . .’’ This belies the defendant’s argument that the
view easement extended only to the edge of the riprap,
as the parties did not designate the ‘‘top’’ of the riprap as
a boundary of the easement. Moreover, as the plaintiffs
posit in their appellate brief, the plain purpose of the
view easement is to permit a view of the sound. Under
these circumstances, it is reasonable to determine that
the settlement agreement fairly implied that the view
easement extended to the sound. Accordingly, we con-
clude that the court did not abuse its discretion in
designating the sound as the southern boundary of the
view easement.
2
Second, the defendant argues that the court improp-
erly omitted from the enforcement decision an order
that the settlement agreement is ‘‘contingent’’ on the
execution of quitclaim deeds and releases by the owners
of interior lots along the avenue who had not previously
entered into agreements with the defendant. We are
not persuaded.
The settlement agreement provides that ‘‘[t]he parties
shall exchange mutual general releases and shall with-
draw all pending claims and actions by them. The docu-
ments to be executed will include, but not be limited
to, quitclaim deeds by all owners on the [avenue], who
have not previously done so, and [Pine Orchard Associa-
tion, Inc.], releasing any and all claims and rights to
[the defendant’s property and to [the] property [of the
defendant’s principal member] . . . . Th[e] settlement
[agreement] is subject to and contingent upon the exe-
cution of documents acceptable to the parties.’’
(Emphasis added.) In the enforcement decision, the
court ordered in relevant part that ‘‘[a]ll settlement doc-
uments shall be executed and exchanged by all parties,
and the various property interests to be conveyed shall
be completed and executed by September 4, 2020. In
addition to general releases by and between the parties
to the settlement agreement, the documents to be exe-
cuted shall include, but not be limited to, quitclaim
deeds by all owners of properties on [the] avenue who
have not previously entered into an agreement with [the
defendant] and, in addition, [Pine Orchard Association,
Inc.], releasing any and all claims and rights to the
properties . . . owned by [the defendant’s principal
member] and [the defendant] . . . .’’ The court did not
explicitly order that the settlement agreement was ‘‘con-
tingent’’ on the execution of any documents.
The defendant contends that the court committed
error in failing to order that the settlement agreement
was ‘‘contingent’’ on the execution of the documents
at issue by the interior lot owners. The defendant main-
tains that portions of the settlement agreement will be
unenforceable unless the interior lot owners execute
the documents at issue, such that the inclusion of the
word ‘‘contingent’’ is critical to signify that the settle-
ment agreement is untenable without the participation
of the interior lot owners. We disagree. The court
ordered that ‘‘[a]ll settlement documents shall be exe-
cuted and exchanged by all parties’’ and that ‘‘the docu-
ments to be executed shall include . . . quitclaim
deeds by all owners of properties on [the] avenue who
have not previously entered into an agreement with
[the defendant] . . . .’’ We perceive no appreciable dif-
ference between the parties agreeing that the settlement
agreement is ‘‘contingent’’ on the execution of the docu-
ments at issue by the interior lot owners and the court
ordering that all settlement documents, which ‘‘shall
include’’ the documents at issue, ‘‘shall be executed
. . . .’’ Thus, we conclude that the court did not abuse
its discretion by not ordering that the settlement agree-
ment was ‘‘contingent’’ on the execution of the docu-
ments at issue.
3
Third, the defendant contends that the court improp-
erly delineated where sitting and recreating is prohib-
ited on a portion of the lawn that Pine Orchard Associa-
tion, Inc., is to acquire from the defendant pursuant to
the settlement agreement. This assertion is unavailing.
The settlement agreement provides that the defen-
dant ‘‘shall convey to Pine Orchard Association, [Inc.]
. . . by quitclaim deed a strip of land that provides an
11 foot wide clear and unimpeded pedestrian access
way from the end of the paved portion of [the avenue]
to the stairway leading to [the sound] and then to [the
sound], together with the stairs leading to [the sound],’’
along with the triangular piece of property containing
the stairs. The parties refer to these segments collec-
tively as ‘‘the path.’’ The settlement agreement further
provides that ‘‘the path shall be used for pedestrian
access to the riprap, stairs, seawall, walkway, and the
waterfront. Except as provided below, no sitting or
recreating shall be permitted on the path above the top
of the stairs, nor shall any permanent structures be
installed there. Sitting and recreating shall be permit-
ted on the stairs, riprap, and/or seawall upon the path
in the area from the top of the stairs to [the sound].’’
(Emphasis added.) In the enforcement decision, the
court ordered that ‘‘[t]he path shall be used for pedes-
trian access to the riprap, stairs, seawall, walkway and
the waterfront . . . . Sitting and recreating shall be
permitted on the stairs, riprap and/or seawall upon
the path in the area from the top step of the stairs to
[the sound]. No sitting or recreating shall be permitted
on the path to the north and landward of the top step
of the stairs nor shall any permanent structures be
installed there.’’ (Emphasis added.)
The defendant contends that the court improperly
described the portion of the path where sitting and
recreating is barred as ‘‘north and landward of the top
step of the stairs’’ rather than ‘‘ ‘above the top of the
stairs.’ ’’ The defendant posits that the court’s order
creates confusion as to whether sitting and recreating
is permitted on a grassy area located in the path next
to the stairs. We are not convinced. We perceive no
appreciable difference between the phrases ‘‘north and
landward of the top step of the stairs’’ and ‘‘above the
top of the stairs.’’ Accordingly, we conclude that the
court did not abuse its discretion in describing the area
where sitting and recreating is prohibited on the path.
4
Fourth, the defendant asserts that the court improp-
erly omitted from the enforcement decision an order
that an easement over the defendant’s property that the
town is to acquire from the defendant pursuant to the
settlement agreement enables the town to replace a
drainpipe. We reject this assertion.
The settlement agreement provides that it ‘‘is contin-
gent upon the acquisition by the [town] of the [avenue]
and the granting of an easement over the lawn area
to maintain and repair the drain line.’’ (Emphasis
added.) The settlement agreement subsequently pro-
vides in relevant part that ‘‘[t]he town will receive from
[the defendant] an easement to maintain, repair, and
replace a drainpipe that runs from a catch basin in [a]
cul-de-sac [at the end of the avenue] straight south . . .
to empty into [the sound]. . . . [T]he easement would
include the right of the town to pass over and use
additional portions of the [defendant’s] property to the
east, and outside that easement, only as necessary to
perform maintenance and repairs and replacement of
that drainpipe.’’ (Emphasis added.) In the enforcement
decision, the court ordered that ‘‘[the defendant] shall
grant to the town an easement and a license over the
lawn to maintain and repair a drain line owned and
operated by the town (the ‘town easement’). . . . [T]he
license shall grant the right to pass over and use addi-
tional portions of the lawn to the east, and outside the
town easement, only as necessary to perform mainte-
nance and repairs and replacement of the drainpipe.’’
(Emphasis added.)
The defendant contends that the court improperly
failed to order that the easement permits the town not
only to repair and to maintain the drainpipe, but to
replace the drainpipe. We do not agree that the court’s
enforcement decision omits that provision of the settle-
ment agreement. Although one portion of the court’s
enforcement decision refers only to the town repairing
and maintaining the drainpipe with no mention of the
town replacing the drainpipe,26 the court clearly recog-
nized the town’s ability to replace the drainpipe in sub-
sequently ordering that the town could pass over and
use portions of the lawn outside of the easement ‘‘only
as necessary to perform maintenance and repairs and
replacement of the drainpipe.’’ (Emphasis added.) Read
in its entirety, the court’s enforcement decision pro-
vides that the town may maintain, repair, and replace
the drainpipe. Accordingly, we conclude that the court
did not abuse its discretion.
5
Fifth, the defendant argues that the court improperly
omitted from the enforcement decision an order that,
in the event that the town must remove a fence, yet to
be erected by the defendant, to access the drainpipe
discussed in part II B 4 of this opinion, the town must
(1) provide reasonable notice to the defendant and (2)
cooperate with the defendant in scheduling repair work.
We agree.
The settlement agreement provides that, ‘‘[i]n the
event that the town requires removal of [the defen-
dant’s] fence to access the drainpipe, the town shall
provide reasonable notice, and shall cooperate with
[the defendant’s principal member] in scheduling the
repair work. Emergency repairs are excepted from this
requirement [(notice and cooperation terms)]. In the
event the town must remove the fence, it shall have
the obligation to restore or replace it.’’ (Emphasis
added.) In the enforcement decision, the court ordered
that ‘‘[t]he town will restore or replace [the defendant’s]
fence(s) if the town needs to remove the fence to access
the drainpipe.’’ The court’s enforcement decision did
not contain the notice and cooperation terms.
The defendant contends that the court improperly
failed to include in the enforcement decision the notice
and cooperation terms, which the defendant represents
that it insisted on inserting into the settlement agree-
ment ‘‘[t]o limit the intrusion by the town for mainte-
nance . . . .’’ We agree with the defendant. Although
the notice and cooperation terms are set forth explicitly
in the settlement agreement, the court did not include
or refer to them in the enforcement decision, and we
do not read them to be implicit therein. Of note, the
plaintiffs’ amended proposed order included language
attempting to incorporate the notice and cooperation
terms.27 Thus, on the basis of the record before us, we
perceive no apparent basis for the court’s omission of
the notice and cooperation terms from the enforcement
decision.
Ordinarily, a court’s omission of a settlement term
in a decision summarily enforcing a settlement agree-
ment is not problematic, particularly when the court is
focused on enforcing a discrete portion of the agree-
ment. That is, the terms of a settlement agreement
remain in full force and effect notwithstanding a court’s
failure to mention them in an enforcement decision.
Here, however, it is evident that the court intended to
have the enforcement decision encompass all material
terms of the settlement agreement. The court described
the enforcement decision as ‘‘reflect[ing] what the par-
ties plainly agreed to when recording the settlement
[agreement] . . . .’’ In addition, in ordering the plain-
tiffs to file a proposed order with regard to the motions
to summarily enforce the settlement agreement, the
court stated that it wanted ‘‘to have a single document
that’s an order of the court that lays out all the elements
[of the settlement agreement].’’ Under these circum-
stances, we conclude that the court erred in failing to
include the notice and cooperation terms in the enforce-
ment decision.28
6
Sixth, the defendant contends that the court improp-
erly omitted from the enforcement order a ‘‘cooperation
clause.’’ This contention is unavailing.
The settlement agreement provides that ‘‘[the] settle-
ment [agreement] is contingent upon the acquisition
by the [town] of the [avenue] and the granting of an
easement over the lawn area to maintain and repair the
drain line. Th[e] settlement [agreement] is also subject
to the approval of the Pine Orchard Association, [Inc.],
Executive Board. The parties shall cooperate and
actively support the acquisition by the town and
approval by [Pine Orchard Association, Inc.].’’ (Emphasis
added.) A subsequent portion of the settlement agree-
ment provides that ‘‘[t]he parties will actively cooperate
in supporting the obtaining of . . . necessary approv-
als [by the town].’’ The court’s enforcement decision
does not utilize the term ‘‘cooperate.’’
The defendant posits that the settlement agreement
requires the parties, in general, to cooperate with one
another because the settlement agreement provides
that ‘‘ ‘the parties shall cooperate . . . .’ ’’ The defen-
dant ignores, however, that there is no sweeping ‘‘coop-
eration clause’’ in the settlement agreement; rather, the
language that the defendant relies on concerns only the
town’s acquisition of the avenue and approvals needed
by the town and Pine Orchard Association, Inc. Addi-
tionally, the enforcement decision provides that ‘‘[a]ny
party who fails, neglects or refuses to comply with [the
enforcement decision] shall be subject to the imposition
of sanctions and such other orders as are deemed rea-
sonable and necessary by this court to implement the
terms and conditions of the settlement agreement and
of this order.’’ Ostensibly, any party to the settlement
agreement who acts to undermine the settlement agree-
ment is subject to sanctions or other necessary and
reasonable enforcement orders.29 Accordingly, we con-
clude that the court did not abuse its discretion by not
including a ‘‘cooperation clause’’ in the enforcement
decision.
7
Last, the defendant claims that the court improperly
omitted from the enforcement decision an order that
withdrawals and releases of the claims raised in Wheeler
v. Cosgrove, Superior Court, judicial district of New
Haven, Docket No. CV-XX-XXXXXXX-S (Cosgrove mat-
ter)—in which an application was filed by the plaintiffs,
among others, in 2017 seeking to lay out the avenue as
a highway pursuant to General Statutes § 13a-63—were
required. We disagree.
During the February 4, 2020 hearing, in setting forth
the terms of the settlement agreement, the plaintiffs’
counsel stated that ‘‘[t]he parties shall exchange mutual
general releases and shall withdraw all pending claims
and actions by them. The documents to be executed
will include, but not be limited to, quitclaim deeds by
all owners on the [avenue], who have not previously
done so, and [Pine Orchard Association, Inc.], releasing
any and all claims and rights to [the defendant’s] prop-
erty and to . . . property [of the defendant’s principal
member] . . . .’’ Shortly thereafter, the plaintiffs’ coun-
sel continued: ‘‘[T]he plaintiffs will report the settle-
ment of this case in the [Cosgrove matter], which is
pending . . . . We’ll ask that [a] hearing [in the Cos-
grove matter] be suspended pending the final approval
of and documentation of th[e] settlement [agreement].
And I suppose that the withdrawals by the various par-
ties . . . would similarly be filed upon the satisfaction
of that—of . . . approvals by the town and Pine
Orchard Association, [Inc.].’’ In the enforcement deci-
sion, the court ordered in relevant part that ‘‘[a]ll parties
shall file withdrawals of any and all claims alleged by
them, without costs, on or before September 11, 2020.’’
The court entered no orders in relation to the Cos-
grove matter.
The defendant contends that the court improperly
failed to order that the claims in the Cosgrove matter
be withdrawn and released in accordance with the set-
tlement agreement. The settlement agreement, how-
ever, does not mandate withdrawals and releases of
claims with respect to the Cosgrove matter. Although
the plaintiffs’ counsel stated during the February 4, 2020
hearing that the parties had agreed to withdraw ‘‘all
pending claims and actions by them,’’ when read in
context of the settlement agreement in its entirety, we
are not persuaded that the term ‘‘actions’’ includes the
Cosgrove matter. (Emphasis added.) At most, the plain-
tiffs agreed to report the settlement of the present
action to the court in the Cosgrove matter and seek
suspension of a hearing then-scheduled in the Cosgrove
matter pending the finalization of the settlement agree-
ment, which presumably would affect the continued
viability of the Cosgrove matter.30 Accordingly, we con-
clude that the court did not abuse its discretion by not
including in the enforcement decision an order requir-
ing withdrawals and releases of the claims in the Cos-
grove matter.
The judgment is reversed in part and the case is
remanded with direction to incorporate into the trial
court’s August 11, 2020 enforcement decision the terms
of the settlement agreement regarding the town of Bran-
ford’s obligation, in the event that the town requires
removal of the defendant’s fence to access the drain-
pipe, to provide reasonable notice and to cooperate in
scheduling repair work, except in situations involving
emergency repairs; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
This dispute has spawned several appeals, including a prior appeal filed
in the present case. See Wheeler v. Beachcroft, LLC, 320 Conn. 146, 129
A.3d 677 (2016); see also McBurney v. Paquin, 302 Conn. 359, 28 A.3d 272(2011); McBurney v. Cirillo, 276 Conn. 782, 889 A.2d 759 (2006), overruled
in part on other grounds by Batte-Holmgren v. Commissioner of Public
Health, 281 Conn. 277, 914 A.2d 996 (2007); Fisk v. Ley, 76 Conn. 295, 56
A. 559 (1903). Additionally, there is an appeal pending in this court in a
different matter relating to this dispute. See Wheeler v. Cosgrove, Connecticut
Appellate Court, Docket No. AC 42547 (appeal filed January 31, 2019).
2
The original plaintiffs who filed this matter are Celia W. Wheeler, Charles
L. Dimmler III, Angela Rossetti, Dean Leone, Tina Mannarino, Lori P. Cal-
lahan, Harold D. Sessa, and Sheryl Lee Sessa. Additionally, the following
parties intervened as plaintiffs: Peter Paquin, Suzanne Paquin, Frank Cirillo,
Susan Cirillo, James Baldwin, Joann Baldwin, Antoinette Verderame, Leslie
Carothers, and Ann Harrison. Before this appeal was filed, Callahan, Harold
D. Sessa, Sheryl Lee Sessa, Harrison, and Carothers withdrew their respec-
tive claims. We refer in this opinion to (1) Wheeler, Dimmler, Rossetti,
Leone, and Mannarino collectively as the plaintiffs, and (2) Peter Paquin,
Suzanne Paquin, Frank Cirillo, Susan Cirillo, James Baldwin, Joann Baldwin,
and Verderame collectively as the intervening plaintiffs.
Beachcroft, LLC, was the only defendant named in the plaintiffs’ original
complaint. Subsequently, the town of Branford (town) and Pine Orchard
Association, Inc., were cited in as defendants. Additionally, the following
parties intervened as defendants: James R. McBurney, Erin E. McBurney,
Roger A. Lowlicht, and Kay A. Haedicke. We refer in this opinion to (1)
Beachcroft, LLC, as the defendant, (2) the town, Pine Orchard Association,
Inc., Lowlicht, and Haedicke individually by name or by surname, and (3)
James R. McBurney and Erin E. McBurney collectively as the McBurneys.
3
On March 15, 2021, the McBurneys filed a motion to dismiss this appeal
in part as moot, which this court denied on April 21, 2021. In their appellate
brief, the McBurneys reasserted their mootness claim; however, the McBur-
neys’ counsel withdrew this claim during oral argument before this court.
4
Lowlicht and Haedicke are joint property owners and have at all relevant
times been represented by the same counsel. Accordingly, we treat them
as a unit.
5
General Statutes § 47-31 (a) provides: ‘‘An action may be brought by any
person claiming title to, or any interest in, real or personal property, or
both, against any person who may claim to own the property, or any part
of it, or to have any estate in it, either in fee, for years, for life or in
reversion or remainder, or to have any interest in the property, or any lien
or encumbrance on it, adverse to the plaintiff, or against any person in
whom the land records disclose any interest, lien, claim or title conflicting
with the plaintiff’s claim, title or interest, for the purpose of determining
such adverse estate, interest or claim, and to clear up all doubts and disputes
and to quiet and settle the title to the property. Such action may be brought
whether or not the plaintiff is entitled to the immediate or exclusive posses-
sion of the property.’’
6
We note that, unlike the plaintiffs’ operative complaint, the intervening
plaintiffs’ operative complaint did not expressly refer to the McBurneys or
to Lowlicht and Haedicke.
7
General Statutes § 47-31 (d) provides: ‘‘Each defendant shall, in his
answer, state whether or not he claims any estate or interest in, or encum-
brance on, the property, or any part of it, and, if so, the nature and extent
of the estate, interest or encumbrance which he claims, and he shall set
out the manner in which the estate, interest or encumbrance is claimed to
be derived.’’
8
In a memorandum of decision issued on November 4, 2013, disposing
of one of the claims raised by the plaintiffs and the intervening plaintiffs,
the trial court, Bright, J., found the following as to Pine Orchard Association,
Inc.: ‘‘On June 13, 1903, [Pine Orchard Association, Inc.] was chartered
by the state of Connecticut as an incorporated borough and municipal
subdivision of the town . . . . It has taxing power and jurisdiction over
land use and streets within its borders. . . . The purpose of [Pine Orchard
Association, Inc.] ‘is to provide for the improvement of the lands in said
district and for the health, comfort, and convenience of persons living
therein.’ . . . All persons owning real property within the boundaries of
the borough of Pine Orchard are members of [Pine Orchard Association,
Inc.] by virtue of their residency. The area covered by [Pine Orchard Associa-
tion, Inc.] includes both public and private roads. It is undisputed that [the
avenue] is in Pine Orchard and subject to [Pine Orchard Association, Inc.’s]
jurisdiction.’’ (Citations omitted.)
9
The court’s decisions disposing of these claims are not at issue in this
appeal. In the prior appeal filed in this matter, our Supreme Court affirmed
the judgment of the court, Bright, J., denying, in part, motions for summary
judgment predicated on res judicata filed by the defendant, the McBurneys,
and Lowlicht and Haedicke. See Wheeler v. Beachcroft, LLC, supra, 320
Conn. 148–50, 154–55.
10
Although there were two settlement agreements entered on the record,
the parties generally identify them together as a single settlement agreement.
Accordingly, we refer in this opinion to the two settlement agreements
collectively as the settlement agreement.
11
On March 4, 2020, Lowlicht and Haedicke filed a separate motion by
which they ‘‘join[ed] in [the defendant’s] request for an order that [the
McBurneys] be precluded from contesting or interfering with the settlement
agreement . . . .’’
12
None of the intervening plaintiffs, who were self-represented at the
time, appeared at the January 31, 2020 hearing.
13
The plaintiffs’ counsel represented that he had received written confir-
mation from ‘‘all of the interior lot owners who ha[d] not previously entered
into arrangements with [the defendant] and [the defendant’s principal mem-
ber]’’ that they consented to the terms and conditions of the settlement
agreement.
14
Between the January 31, 2020 hearing and June 12, 2020 (the date on
which the defendant withdrew the motion for order and the motion to bind),
the defendant was represented by Attorney Gerald L. Garlick of Seiger
Gfeller Laurie LLP. On June 12, 2020, Attorney Richard P. Colbert of Day
Pitney LLP appeared on behalf of the defendant as additional counsel. Both
Attorney Colbert and Attorney Garlick attended the July 1, 2020 hearing;
however, Attorney Colbert primarily spoke to the court on behalf of the
defendant and exclusively addressed the court’s questions regarding the
McBurneys.
15
On April 2, 2020, without requesting leave of the court, the defendant
filed a cross claim against the McBurneys, seeking (1) to quiet title to its
property or, alternatively, (2) damages for maintenance and repair costs in
the event that the court determined that the McBurneys possessed an ease-
ment over its property. In its appellate briefs, the defendant represents that
the cross claim has been withdrawn; however, the trial court file contains
no such withdrawal.
16
On November 16, 2020, the defendant commenced a separate action
against the McBurneys and Pine Orchard Association, Inc., in which the
defendant, inter alia, is seeking to quiet title to its property. See Beachcroft,
LLC v. McBurney, Superior Court, judicial district of Hartford, Complex
Litigation Docket, Docket No. X07-CV-XX-XXXXXXX-S. That action remains
pending.
17
‘‘A hearing pursuant to Audubon . . . is conducted to decide whether
the terms of a settlement agreement are sufficiently clear and unambiguous
so as to be enforceable as a matter of law.’’ (Citation omitted; internal
quotation marks omitted.) Reiner v. Reiner, supra, 190 Conn. App. 270 n.3.
18
We note that the McBurneys did not file an answer, make a statement
pursuant to § 47-31 (d), or raise any claim in the present action that would
have to be withdrawn.
19
We deem it notable that the defendant never filed a motion seeking
summary enforcement of the settlement agreement predicated on an argu-
ment that the McBurneys were interfering with its implementation. Such a
motion would have been appropriate if the McBurneys were, in fact, parties
to the settlement agreement.
20
In the enforcement decision, the court stated that the defendant had
‘‘requested discovery and a trial-type hearing on the terms [of the settlement
agreement] . . . .’’ The discovery requests that the defendant served on the
plaintiffs, the McBurneys, and Pine Orchard Association, Inc., in May, 2020,
which the court prohibited without prejudice, sought, as the defendant
described, documents ‘‘material and relevant to the issue of what interest
the McBurneys are suddenly . . . claiming in [the defendant’s] property.’’
Those discovery requests did not seek materials concerning the McBurneys’
status as either parties or nonparties to the settlement agreement. The record
does not reflect a request by the defendant for discovery or an evidentiary
hearing on that issue prior to July 1, 2020.
21
On July 1, 2020, the court ordered the plaintiffs to file a separate pro-
posed order setting forth a schedule to effectuate the terms of the settlement
agreement. On July 9, 2020, in compliance with the court’s order, the plain-
tiffs filed a proposed scheduling order, which the court approved on July
10, 2020. That order is not at issue in this appeal.
22
In fact, this court in Waldman cited Aquarion in stating that the abuse
of discretion standard applied in that case. See Waldman v. Beck, supra,101 Conn. App. 673.
23
We intend our use of the term ‘‘view easement’’ to be interchangeable
with the parties’ and the trial court’s use of the term ‘‘viewscape easement.’’
24
‘‘Riprap consists of large stones or chunks of concrete that are layered
on an embankment slope to prevent erosion. Merriam Webster’s Collegiate
Dictionary (10th Ed. 1998).’’ Johnson v. North Branford, 64 Conn. App. 643,
646 n.8, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).
25
The court also described the northern and western boundaries of the
view easement, which we need not detail.
26
Similarly, one section of the settlement agreement refers to the town’s
being granted an easement ‘‘to maintain and repair the drain line,’’ with no
allusion to replacement of the drainpipe.
27
The amended proposed order provided in relevant part: ‘‘The town will
restore or replace [the defendant’s] fence(s) if the town needs to remove
the fence while using the town easement or license for emergency repairs;
otherwise, the town will give reasonable notice to [the defendant] of its
need to repair the drain line and shall cooperate with [the defendant] in
scheduling the repair work so that [the defendant] can remove (and there-
after replace) the fence(s) at [the defendant’s] expense.’’ We offer no opinion
as to whether this language in the amended proposed order accurately
encapsulates the notice and cooperation terms.
28
As we explain elsewhere in part II B of this opinion, we reject the
defendant’s claims that the court omitted other material terms of the settle-
ment agreement in the enforcement decision. Even if we were to assume
that the enforcement decision omits other material terms of the settlement
agreement, we iterate that the settlement agreement controls, such that the
parties to the settlement agreement remain bound by any terms not
addressed in the enforcement decision.
29
Furthermore, we note that ‘‘[i]mplicit in every contract is the common-
law duty of good faith and fair dealing. [I]t is axiomatic that the . . . duty
of good faith and fair dealing is a covenant implied into a contract or a
contractual relationship. . . . In other words, every contract carries an
implied duty requiring that neither party do anything that will injure the
right of the other to receive the benefits of the agreement.’’ (Internal quota-
tion marks omitted.) Vance v. Tassmer, supra, 128 Conn. App. 111.
30
On February 5, 2020, the plaintiffs, among others, filed a case flow
request in the Cosgrove matter informing the trial court of the settlement
agreement reached in the present case and that the settlement agreement
would satisfy their claims in the Cosgrove matter. The plaintiffs requested
that the court order that (1) all further proceedings in the Cosgrove matter
be suspended and (2) the Cosgrove matter be withdrawn on or before
May 19, 2020, or be subject to dismissal, with the understanding that the
proceedings would resume if the settlement agreement failed for any reason.
On February 6, 2020, the court, Ozalis, J., ordered that certain scheduled
proceedings in the Cosgrove matter were suspended and that the Cosgrove
matter had to be withdrawn on or before May 19, 2020, unless the settlement
agreement failed for any reason. The court subsequently extended the dead-
line to withdraw the Cosgrove matter several times, with the most recent
deadline set as March 1, 2021. To date, the Cosgrove matter has not been
withdrawn, and the case remains unresolved. Additionally, there is an appeal
from the denial of a motion for summary judgment predicated on res judicata
and collateral estoppel filed in the Cosgrove matter that is pending in this
court. See Wheeler v. Cosgrove, Connecticut Appellate Court, Docket No.
AC 42547 (appeal filed January 31, 2019).