Matos v. Ortiz , 166 Conn. App. 775 ( 2016 )

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SAMUEL DA SILVA MATOS
v. ANA ORTIZ ET AL.
(AC 36895)
DiPentima, C. J., and Gruendel and Sheldon, Js.*
Argued September 24, 2015—officially released July 12, 2016
(Appeal from Superior Court, judicial district of judicial
district of Windham at Putnam, Boland, J. [motions to
cite in, to dismiss]; Riley, J. [motion to enforce;
judgment].)
Samuel da Silva Matos, self-represented, the appel-
lant (plaintiff).
Johanna G. Zelman, with whom, on the brief, was
Michael J. Rose, for the appellee (named defendant).
Opinion
GRUENDEL, J. It is well established that a court may
summarily enforce—within the framework of existing
litigation—a clear and unambiguous settlement
agreement reached during that litigation. Audubon
Parking Associates Ltd. Partnership v. Barclay &
Stubbs, Inc., 225 Conn. 804, 812, 626 A.2d 729 (1993)
(Audubon). We are now called upon to decide whether
that power extends to the summary enforcement of
agreements reached both outside the framework of and
before the start of the litigation in which enforcement
is sought.
The self-represented plaintiff, former teacher Samuel
da Silva Matos, appeals from the judgment of the trial
court summarily enforcing the Release and Separation
Agreement he signed in 2012,1 upon resigning his posi-
tion with the defendant Board of Education of the Town
of Windham (board). As part of the Release and Separa-
tion Agreement, the plaintiff waived his right to sue the
defendant board and its superintendent, defendant Ana
Ortiz.2 When the plaintiff sued the defendants two years
later, the court treated that contract, for Audubon pur-
poses, as an agreement to settle pending litigation. The
court therefore held a hearing, found that the contract
was unambiguous and enforceable, and rendered judg-
ment against the plaintiff, ending the litigation while it
was still at the pleading stage. We conclude that Audu-
bon does not countenance such a result. Rather, a settle-
ment agreement is summarily enforceable under
Audubon as an agreement to settle litigation only if the
parties reached the agreement after commencing the
relevant litigation. Because the Release and Separation
Agreement here fails that test, we reverse the judgment
of the trial court and remand the case for further pro-
ceedings according to law.
The following facts, as found by the court or other-
wise undisputed, are relevant here. The defendants
hired the plaintiff in September, 2001, and assigned him
teaching duties at the Windham Middle School. During
the plaintiff’s time at the middle school, he was a mem-
ber of the local teachers union, the Windham Federation
of Teachers.
On November 11, 2011, the defendants received a
report from the assistant principal of the middle school
that the plaintiff had touched a student on the face,
making her uncomfortable. The matter was referred to
the Department of Children and Families (department)
for investigation, and the defendants simultaneously
conducted an internal investigation.
On January 10, 2012, a department worker filed a
report substantiating the allegations against the plaintiff
for emotional neglect and recommending that he be
placed on the department’s child abuse and neglect
central registry. Ultimately, more than one year later
on March 12, 2013, a department hearing officer rejected
that finding and recommendation. The hearing officer
determined that the student had not been credible, that
the evidence had not supported a finding that the plain-
tiff had touched her inappropriately, and that any possi-
ble violation by the plaintiff of the principal’s directive
not to touch students at all was a matter for the plain-
tiff’s employer, not the department.
On February 28, 2012, on the basis of the initial,
January, 2012 report substantiating the allegations
against the plaintiff and on the defendants’ internal
investigation into the plaintiff’s alleged violation of the
principal’s directive that he not touch students at all,
the defendants notified the plaintiff that they were com-
mencing termination proceedings against him under
General Statutes § 10-151 (d), the Teacher Tenure Act.
On March 2, the plaintiff’s union appointed attorney,
Brian A. Doyle, asked the defendants for a statement
of reasons why they had commenced termination pro-
ceedings against the plaintiff. The defendants sent such
a statement to Doyle on March 12, 2012. In response
to the statement of reasons, on March 15, 2012, the
plaintiff requested a formal hearing before an impartial
hearing officer, pursuant to § 10-151 (d).
Ten days later, on March 25, 2012, the defendants’
attorney sent Doyle a document entitled ‘‘RELEASE
AND SEPARATION AGREEMENT.’’ The Release and
Separation Agreement proposed a settlement of the
defendants’ termination proceeding against the plaintiff
on the following terms: the plaintiff would resign imme-
diately from his teaching position, effective June 30,
2012; he would have no teaching duties for the remain-
der of the school year; and he would never seek to work
for the defendants again. The Release and Separation
Agreement also included a lengthy release, providing
that the plaintiff would ‘‘voluntarily [release] and for-
ever [discharge] the Board, all of the Board’s past, pre-
sent and future members, employees, agents, attorneys,
insurers, representatives, and any person acting on
behalf of or in concert with any of them (collectively,
Releasees), from any and all claims, demands, obliga-
tions, liabilities, causes of action, known or unknown,
asserted and unasserted, and any claim for costs, attor-
ney’s fees, expenses or any form of damages whatso-
ever (including but not limited to liquidated and/or
punitive damages, compensatory damages and/or dam-
ages for emotional distress) which [the plaintiff] has or
may have against the Releasees arising out of or in
any way connected with [the plaintiff’s] employment
or separation from employment . . . .’’ The preface
similarly stated that the plaintiff and the defendants
‘‘wish[ed] to resolve, compromise and finally settle . . .
any and all claims and potential claims [the plaintiff]
may have related to his employment with the Board or
separation from that employment . . . .’’ A separate
clause provided that the plaintiff would retain his right
to file a complaint with the federal Equal Employment
Opportunity Commission or the Connecticut Commis-
sion on Human Rights and Opportunities, but he would
waive ‘‘the right to recover any damages or other relief
in any claim or suit brought by or through’’ those agen-
cies. Nowhere did the document specify any pending
lawsuit that the plaintiff was withdrawing.3
In exchange, the Release and Separation Agreement
provided that the defendants would put the plaintiff on
a paid leave of absence for the last three months of
the 2011–2012 school year, until June 30, 2012; would
remove all documents referencing the plaintiff’s pro-
posed termination from his personnel file; and would
not discuss the circumstances of the plaintiff’s depar-
ture with prospective employers, if the plaintiff sought
work elsewhere. On March 30, 2012, during a one-on-
one meeting with Doyle at his law firm office, and after
being advised to do so, the plaintiff signed the Release
and Separation Agreement. It is unclear from the record
if the plaintiff ever personally met with the defendants
to discuss the Release and Separation Agreement before
signing it.
It is undisputed that the plaintiff had no claims pend-
ing against the defendants in any court when he signed
the Release and Separation Agreement. Nor is there any
evidence that he had commenced any administrative
actions against the defendants. The evidence before the
court contained no indication that, when the plaintiff
signed the Release and Separation Agreement, he was
considering filing such claims, had investigated the
facts underlying such claims, or had consulted with an
attorney as to the legal merit of such claims.
Two years later, on January 22, 2014, the plaintiff
filed the present action4 against the defendants, alleging
that the defendants had forced him to resign from his
job as a teacher through a four year campaign of harass-
ment. The defendants filed two motions in response:
(1) a motion to dismiss three of the five counts of the
complaint for failure to exhaust administrative reme-
dies;5 and (2) the ‘‘Motion to Enforce the Settlement
Agreement’’ that is the subject of this appeal.
The second motion asked the court to enforce sum-
marily the provision of the Release and Separation
Agreement in which the plaintiff had agreed to release
the defendants from any liability for the events sur-
rounding his resignation. As authority for their motion,
the defendants relied on Audubon Parking Associates
Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225
Conn. 812, in which our Supreme Court held that, where
a party conceded that it had entered into an unambigu-
ous, enforceable agreement to settle a pending case,
but then reneged on that settlement agreement, the
court could summarily enforce the agreement by ren-
dering judgment upon it in the settled case in accor-
dance with the settlement terms. The defendants here
asked the trial court to hold an evidentiary ‘‘Audubon
hearing’’ to decide whether summary enforcement of
the Release and Separation Agreement was appropriate.
Soon after the defendants filed these motions, the
court scheduled a hearing for March 31, 2014. One week
before the hearing, the defendants moved to continue
the ‘‘[e]videntiary [h]earing’’ on their motion to enforce
the Release and Separation Agreement because two
witnesses would not be available to testify. The court
granted that motion on the day it was filed and set a
new hearing date of April 14, 2014, ordering that: ‘‘All
matters scheduled for March 31 are continued to short
calendar of April 14, 2014.’’
A few days after the court postponed the hearing,
the plaintiff filed a ‘‘Motion in Limine’’ seeking to pre-
clude any evidence of the Release and Separation
Agreement and asking the court to ‘‘assist the plaintiff
in his endeavor to get at all the material facts [of] this
case via the discovery proceedings of the trial.’’ The
plaintiff noted that the contract posed a potential
‘‘impasse’’ for his lawsuit against the defendants, and
that he ‘‘d[id] not wish to be outmaneuvered by the
defendant and her counsel until he ha[d] been given a
full opportunity to present his case before the court.’’
The plaintiff also filed numerous objections to the
defendants’ motion to enforce the contract, alleging
that there had been bad faith, undue influence, duress,
misrepresentation, unconscionability, and a lack of
meeting of the minds. The court did not rule on the
plaintiff’s motion in limine or any other objections
before the hearing.
On the day of the hearing, April 14, 2014, the court
turned initially to the defendants’ motion to enforce
the Release and Separation Agreement. The defendants
called two witnesses on that motion, the plaintiff and
Doyle. The plaintiff testified that he had signed the
Release and Separation Agreement on March 30, 2012,
and that the defendants’ exhibit one was that contract.
The court thus admitted the Release and Separation
Agreement into evidence. Doyle testified to the same
effect.
The plaintiff also testified, in response to questioning
by the defendants’ counsel, that Doyle had not
explained the contract to him, that Doyle had showed
the contract to him only briefly, and that he did not
receive a copy of the contract until two months after
he signed it. At the end of direct examination, the court
asked the plaintiff if there was ‘‘anything [he] wish[ed]
to add’’ to the testimony he had already given.
The plaintiff then gave a synopsis of the testimony
he wished to give and the court asked follow-up ques-
tions. At one point, the plaintiff began to discuss his
underlying claims against the defendants, but the court
stopped him, noting that the hearing was only about
‘‘whether or not this separation agreement can be
enforced . . . .’’ At another point, the plaintiff asked
‘‘to get [his] notes’’ on the ‘‘whole subject of contracts’’
and began to discuss two legal doctrines—misrepresen-
tation and unconscionability—but was cut off again,
the court observing: ‘‘If you had signed [the Release
and Separation Agreement] without benefit of counsel,
that may be a subject area in which the court would
take some testimony or look into. But you signed this
with an attorney representing you.’’ The court noted,
however, that the plaintiff ‘‘ha[d] the right to put on
any—any—we’re holding an evidentiary hearing—any
other documents that you think are relevant.’’ The plain-
tiff did not do so.
The defendants next called Doyle to the witness
stand. Before Doyle testified, the plaintiff raised his
motion in limine seeking to preclude evidence of the
Release and Separation Agreement. The court stated
that the plaintiff’s motion seemed ‘‘to be obviated by the
fact that we’re here today doing an evidentiary hearing.’’
The court then told the plaintiff that because he had
testified already about Doyle’s failure to explain the
Release and Separation Agreement to him, the plaintiff
‘‘may in fact have waived some of—some or all of [his]
attorney-client privilege . . . .’’ The court then asked
the plaintiff to clarify if he was waiving his attorney-
client privilege. The plaintiff replied, ‘‘Yes, I’ll waive
[it].’’
On direct examination, Doyle contradicted much of
the plaintiff’s testimony. He testified that the plaintiff
had given him permission to discuss settlement with
the defendants; that he had ‘‘gone back and forth’’ with
the defendants’ attorney; that he had discussed each
offer with the plaintiff; that he had given the plaintiff
a copy of the Release and Separation Agreement at
the meeting where the plaintiff signed it; that he had
explained each paragraph to the plaintiff, including that
one of the provisions was ‘‘a general release and that
you can’t sue, period’’; that the plaintiff had no questions
at that time; and that the plaintiff did not ask for any
more time to review the Release and Separation
Agreement before signing it. Doyle reiterated and
expanded on this testimony when the plaintiff cross-
examined him.6
After the defendants rested, the court asked the plain-
tiff if he had any witnesses he wished to call. The plain-
tiff replied, ‘‘No, I do not, sir.’’ The court then advised
the parties that, if ‘‘[a]nybody . . . wishes to submit
anything further,’’ the defendants had until April 24,
2014, and the plaintiff had until May 7, 2014.
After the hearing, the plaintiff filed numerous addi-
tional objections to the defendants’ motion to enforce
the Release and Separation Agreement. Although the
plaintiff conceded that the contract was unambiguous,
he argued that when he signed it he did not know what
it said and was acting under duress.
The plaintiff also asked the court to begin subpoe-
naing witnesses on his underlying claim that the defen-
dants had harassed him into resigning. He argued that
the testimony elicited by the defendants at the April
14, 2014 hearing had been ‘‘unreliable and damaging,’’
and that the court should ‘‘refrain from ruling on the
[defendants’ motion] until future testimony [was] pre-
sented’’ on his underlying claims. ‘‘Otherwise,’’ he
argued, ‘‘per terms of the Release and Separation
[A]greement, the [p]laintiff would be denied his day
in court.’’
On May 16, 2014, the court granted the defendants’
‘‘Motion to Enforce the Settlement Agreement.’’ The
court began its memorandum of decision by noting that
it had ‘‘conducted an Audubon hearing on the matter
on April 14, 2014.’’ After setting forth the relevant law,
the court then found that ‘‘[i]t is clear from the testi-
mony presented and evidence received that the parties,
at the time they entered into the agreement, were in
accord with the terms of the settlement as well as with
regard to the terms of the agreement. The entire
agreement was clear and unambiguous, and was
explained in depth and detail to the plaintiff by his
attorney.’’ The court held that the ‘‘settlement
agreement must be enforced,’’ and did so by rendering
judgment in favor of the defendants. The plaintiff
appealed to this court.
I
On appeal, the plaintiff argues that our Supreme
Court’s holding in Audubon does not control this case
and that the trial court erred in summarily enforcing
the Release and Separation Agreement pursuant to
Audubon. We agree. Audubon involved an agreement,
reached in the midst of litigation, to settle a pending
case. Audubon Parking Associates Ltd. Partnership v.
Barclay & Stubbs, Inc., supra, 225 Conn. 806. Here, by
contrast, the defendants sought to use that doctrine to
enforce summarily a preemptive release signed before
the present litigation began. We conclude that Audubon
does not extend so far. Rather, it permits summary
enforcement only if the settlement agreement at issue
was reached after the relevant litigation commenced.
Accordingly, we reverse the judgment of the trial court
and remand the case for further proceedings according
to law.7
A
At the outset, the defendants argue that the issue of
whether Audubon extends to the summary enforcement
of agreements reached outside the framework of and
before the start of the relevant litigation is not properly
before us. The defendants argue that the plaintiff did
not raise this issue before the trial court or on appeal,
and that no exceptional circumstance exists to justify
a departure from the ‘‘general rule that unpreserved
claims will not be reviewed.’’ See, e.g., Blumberg Asso-
ciates Worldwide, Inc. v. Brown & Brown of Connecti-
cut, Inc., 311 Conn. 123, 161, 84 A.3d 840 (2014). The
defendants are correct that the plaintiff did not specifi-
cally object to the use of summary enforcement, rather
than summary judgment, as the procedural vessel to
dispose of his case. His primary and supplemental
appellate briefs focus on the substantive issue of
whether the Release and Separation Agreement can be
enforced at all, not on the procedural issue of how
it could be enforced. Accordingly, we agree with the
defendants that the issue is unpreserved and was not
raised by the plaintiff on appeal.8
In Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 161–64,
our Supreme Court laid out sets of circumstances in
which an appellate court may reach and decide an
unpreserved issue sua sponte: (1) where the issue
involves a question of subject matter jurisdiction;9 (2)
where the issue involves a constitutional violation
reviewable under State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989), holding modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015); (3) where
the issue is subject to reversal under the plain error
doctrine; and (4) where review is appropriate in the
exercise of the court’s supervisory powers. Here, we
conclude that the Audubon issue must be reached and
decided both under the plain error doctrine and as an
exercise of this court’s supervisory powers.
1
First, this court ‘‘may in the interests of justice notice
plain error not brought to the attention of the trial court.
. . .’’ Practice Book § 60-5. ‘‘[The plain error] doctrine,
codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors com-
mitted at trial that, although unpreserved, are of such
monumental proportion that they threaten to erode our
system of justice and work a serious and manifest injus-
tice on the aggrieved party. [T]he plain error doctrine
. . . is not . . . a rule of reviewability. It is a rule of
reversibility. That is, it is a doctrine that this court
invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised
at all in the trial court, nonetheless requires reversal
of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked
sparingly. . . . Implicit in this very demanding stan-
dard is the notion . . . that invocation of the plain
error doctrine is reserved for occasions requiring the
reversal of the judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernable on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record.
‘‘Although a complete record and an obvious error
are prerequisites for [the] plain error [doctrine], they
are not, of themselves, sufficient for its application.
. . . [I]n addition to examining the patent nature of the
error, the reviewing court must examine that error for
the grievousness of its consequences in order to deter-
mine whether reversal under the plain error doctrine
is appropriate. A party cannot prevail under plain error
unless it has demonstrated that the failure to grant relief
will result in manifest injustice. . . . In State v. Fagan,
[280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied,
549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)],
we described the two-pronged nature of the plain error
doctrine: [An appellant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.) Reville v. Reville, 312
Conn. 428, 467–69, 93 A.3d 1076 (2014). In addition,
when the court invokes the plain error doctrine sua
sponte, it must provide ‘‘an opportunity for the parties
to be heard by way of supplemental briefing . . . .’’
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 311 Conn. 161–62.
In sum, then, an appellate court may reach an unpre-
served issue sua sponte, pursuant to the plain error
doctrine, if: (1) the parties have had a chance to brief
the issue; (2) further factual findings are not needed to
resolve the issue; (3) the answer to the issue is so
obvious as to be not debatable; and (4) leaving the
judgment intact would work a manifest injustice. See
id.; Reville v. Reville, supra, 312 Conn. 467–69. Here,
we conclude that each element is met.
First, after discussing the Audubon issue extensively
at oral argument, we also ordered the parties to submit
supplemental briefs on it.10 The issue has been briefed
and argued, and all parties had an opportunity to be
heard.11
Second, the Audubon issue is a pure question of law
that requires no additional fact-finding. See Ayantola
v. Board of Trustees of Technical Colleges, 116 Conn.
App. 531, 538, 976 A.2d 784 (2009) (‘‘a question of law
is [a]n issue to be decided by the judge, concerning
the application or interpretation of the law’’ [emphasis
omitted; internal quotation marks omitted]). The ques-
tion here concerns the scope of a common-law doctrine
and the relevant facts are undisputed, to wit, the Release
and Separation Agreement was reached during the
defendants’ termination proceeding against the plaintiff
pursuant to § 10-151 (d), but two years before the plain-
tiff brought this action.
Third, the answer to the Audubon issue is so obvious
as to be not debatable. We acknowledge that the court
in Audubon did not expressly answer the question.12 It
held only that, in one particular circumstance, summary
enforcement was appropriate; it did not purport to
define that power’s outer limits. See Audubon Parking
Associates Ltd. Partnership v. Barclay & Stubbs, Inc.,
supra, 225 Conn. 810–12. Nevertheless, in light of the
two decades since Audubon during which courts have
applied Audubon only to agreements reached in the
midst of litigation, and in light of the underlying ratio-
nale of Audubon, it is obvious that one such limit is
that Audubon does not apply to agreements reached
before and outside the framework of the litigation in
which enforcement is sought. See part I B 1 c of this
opinion.
Fourth, leaving the judgment intact would work a
manifest injustice. 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. See Audubon
Parking Associates Ltd. Partnership v. Barclay &
Stubbs, Inc., supra, 225 Conn. 810–12; see also Acker-
man v. Sobol Family Partnership, LLP, 298 Conn. 495,
534–35, 4 A.3d 288 (2010). To use the Audubon power
outside of its proper context is to deny a party these
fundamental rights and would work a manifest injus-
tice. Because all four requirements are met, we con-
clude that the challenged judgment must be reversed
under the plain error doctrine.
2
Second, even if the plain error doctrine did not apply,
review would still be proper in the exercise of this
court’s supervisory powers. Our Supreme Court has
laid out a four part test for determining whether sua
sponte review of an unpreserved claim pursuant to the
court’s supervisory powers is proper. Blumberg Associ-
ates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., supra, 311 Conn. 155–64. The four requirements
for review are: (1) the record must be adequate for
review; (2) all parties must have had an opportunity to
be heard on the issue; (3) there must be no unfair
prejudice to any party; and (4) something more, such
as (a) neither party objects to review, (b) the party
pressing the claim cannot prevail, (c) the claim is of a
public character, (d) the claim arose from an interven-
ing change in the law, (e) the claim arose from a newly
established, undisputed fact on which both parties rely,
(f) by addressing the claim, the court avoids a constitu-
tional question, (g) the claim is an alternative basis
to affirm an evidentiary ruling, (h) the claim involves
judicial bias, or (i) other exceptional circumstances;
id., 155–61; ‘‘in which the interests of justice, fairness,
integrity of the courts and consistency of the law signifi-
cantly outweigh the interest in enforcing procedural
rules governing the preservation of claims.’’ Id., 160.
In Blumberg Associates Worldwide, Inc., the ‘some-
thing more’ was threefold: (1) in light of the ‘‘obvious
similarity between [the] theories’’; id., 170; underlying
both one of the preserved claims and the unpreserved
claim, the Appellate Court reasonably—albeit mistak-
enly—could have believed that the trial court had ruled
on the unpreserved claim, which would have mooted
the appeal, thereby implicating the Appellate Court’s
subject matter jurisdiction; (2) the unpreserved claim
was likely to arise on remand and so addressing it
promoted judicial economy; and (3) the Appellate
Court’s failure to raise the issue sua sponte could have
led to inconsistency or confusion in the case law. Id.,
169–72. With respect to the third factor, our Supreme
Court noted: ‘‘Although it may be improper for the
reviewing court to raise an issue sua sponte when the
parties’ misunderstanding of the law relates to an issue
that is tangential to or distinct from the claim that was
raised on appeal, we have concluded that a reviewing
court may raise the issue when the misunderstanding
is intertwined with the claim that was raised on appeal
and could lead to problematic or inconsistent prece-
dent.’’ Id., 172 n.43.
To start, we conclude that here, the three preliminary
requirements are met. First, the record is adequate for
review. The unpreserved issue is a pure question of law
and the relevant facts are undisputed—i.e., the Release
and Separation Agreement was reached during the
defendants’ termination proceeding against the plain-
tiff, pursuant to § 10-151 (d), but two years before the
plaintiff brought this action. See Ayantola v. Board of
Trustees of Technical Colleges, supra, 116 Conn. App.
538 (‘‘a question of law is [a]n issue to be decided by
the judge, concerning the application or interpretation
of the law’’ [emphasis omitted; internal quotation marks
omitted]); State v. Ledbetter, 41 Conn. App. 391, 394–95,
676 A.2d 409 (1996) (‘‘to determine whether the record
is adequate for review, we must consider the specific
claim raised, and whether the record provided is ade-
quate for meaningful review of that claim’’), aff’d, 240
Conn. 317, 692 A.2d 713 (1997). Second, all parties had
an opportunity to be heard on the issue. After discussing
this issue extensively at oral argument, we also ordered
supplemental briefing. Third, there is no unfair preju-
dice to any party. The prejudice that the defendants
identify in their supplemental brief is that, if the trial
court’s judgment in their favor is reversed, then they
will be ‘‘required to expend exorbitant sums of money
to defend this matter’’ instead of ‘‘using [these] funds
to educate children . . . .’’ That prejudice stems not
from the timing of when the issue was raised—which
is the relevant question; see Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., supra, 311 Conn. 156–57, 156 n.25—but from the
plaintiff’s right to seek redress in the courts at all. See
Conn. Const., art. I, § 10 (provision of state constitution
granting access to courts).
We thus turn to the fourth requirement. We conclude
that two factors counsel in favor of review. First, prior
to the order for supplemental briefing, neither party
objected to review of this unpreserved issue. At oral
argument, the defendants’ counsel extensively dis-
cussed the merits of the Audubon issue and at no point
objected that review was improper. In addition to her
vigorous defense on the merits, the defendants’ counsel
specifically requested that this court order supplemen-
tal briefing on the issue:
‘‘[The Defendants’ Counsel]: Now, Your Honors, I
would ask, you know, I’m not sure whether Audubon
has been applied to these circumstances. . . . I’m not
sure that I actually cited to any cases where it was.
. . . I certainly would like the opportunity to at least
explore the issue and present the court with any . . .
cases . . . where it possibly is. . . . I don’t have the—
those particular citations on hand.
***
‘‘And if you’re curious as to, you know, whether the—
Audubon even applies in this case, I would certainly
ask, since that wasn’t an issue that was even ever—
that has not been presented at this time, I would cer-
tainly just request time to brief that issue for Your
Honors before you make a determination on that basis.
‘‘The Court: You briefed Audubon, didn’t you?
‘‘[The Defendants’ Counsel]: We briefed Audubon,
but I did not brief, you know, [the plaintiff] never raised
the issue that . . . you know, Audubon shouldn’t be
applied to this at all. I—I think that, for the defendants’
sake, I—I think that they should have the right to at
least brief the argument . . . that . . . Audubon
wouldn’t apply in parallel litigation as opposed to within
the same litigation. I—I think that’s what I hear as your
concerns. . . .
‘‘The Court: We’ll certainly take that under consider-
ation, counsel.
‘‘[The Defendants’ Counsel]: Okay. Thank you.’’
Six months after oral argument, we ordered supple-
mental briefing. The defendants now assert in their
supplemental brief that they ‘‘vehemently object’’ to
review of the Audubon issue, that such review is
improper, and that by raising the issue ‘‘this court is
doing nothing more than serving as an advocate for the
[self-represented] plaintiff.’’ We conclude that, having
failed to object at oral argument and having themselves
requested supplemental briefing, the defendants cannot
now object that such briefing is improper. See Apple
Salon v. Commissioner of Public Health, 132 Conn.
App. 332, 334, 33 A.3d 755 (2011) (‘‘[w]aiver is based
upon a species of the principle of estoppel and where
applicable it will be enforced as the estoppel would be
enforced’’ [internal quotation marks omitted]).
Second, here the parties’ ‘‘misunderstanding [of the
law] is intertwined with the claim[s] that w[ere] raised
on appeal and could lead to problematic or inconsistent
precedent.’’ Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., supra, 311 Conn.
172 n.43. Audubon was the chief authority relied on by
the defendants before the trial court. It was the chief
authority that the plaintiff cited in his primary appellate
brief. And it was the chief authority that the defendants
relied on in their primary appellate brief. If we were to
uphold the summary enforcement of the Release and
Separation Agreement pursuant to Audubon in this
case, it would improperly suggest to courts and attor-
neys alike that Audubon extends far beyond its actual
reach. Accordingly, we conclude that review is also
proper to avoid such a result.
B
We thus turn to the merits. In Audubon Parking Asso-
ciates Ltd. Partnership v. Barclay & Stubbs, Inc., supra,
225 Conn. 804, our Supreme Court announced a proce-
dure for enforcing agreements to settle litigation. That
procedure, as expanded by later cases, carves out a de
facto exception to the right to trial by jury insofar as
it permits a court to resolve issues of fact en route to
summarily enforcing such an agreement, even in the
face of a jury demand. See Ackerman v. Sobol Family
Partnership, LLP, supra, 298 Conn. 534–35 (despite jury
demand, court may resolve issues of fact if necessary for
summary enforcement). It also deviates markedly from
the normal procedure for enforcing a release of claims.
See, e.g., Young v. Data Switch Corp., 231 Conn. 95,
96, 646 A.2d 852 (1994) (release of claims sent to jury
as special defense to plaintiff’s underlying action at
law); Mandeville v. Jacobson, 122 Conn. 429, 430–32,
189 A. 596 (1937) (same); Embalmers’ Supply Co. v.
Giannitti, 103 Conn. App. 20, 47, 929 A.2d 729 (same),
cert. denied, 284 Conn. 931, 934 A.2d 246 (2007); Gillis
v. Gillis, 21 Conn. App. 549, 552–53, 553 n.3, 575 A.2d
230 (same), cert. denied, 215 Conn. 815, 576 A.2d 544
(1990); cf. Lawton v. Weiner, 91 Conn. App. 698, 714
n.10, 882 A.2d 151 (2005) (‘‘[r]elease [of claims], which
goes to liability, must be pleaded as a special defense’’).
Historically, courts have summarily enforced
releases pursuant to Audubon only when they were
parts of agreements to end litigation, reached during
that litigation. Audubon itself referred to ‘‘[a]greements
that end lawsuits’’; (emphasis added; internal quotation
marks omitted) Audubon Parking Associates Ltd. Part-
nership v. Barclay & Stubbs, Inc., supra, 225 Conn. 811;
and concerned the court’s power to render judgment
‘‘within the framework of the original lawsuit . . . .’’
(Emphasis added.) Id., 812; see also id., 811 (‘‘[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’’
[emphasis added; internal quotation marks omitted]).
Here, however, the defendants seek to apply Audubon
to a Release and Separation Agreement that they argue
settled claims, which, at the time of signing, the plain-
tiff’s attorney was not pursuing, which had not yet fully
accrued, and which the plaintiff raised for the first time
nearly two years later when he filed the present action.
We conclude that such a preemptive release may not
be summarily enforced under Audubon as an agreement
to settle that litigation.
1
We begin by reviewing the law of Audubon-style sum-
mary enforcement. In short, what began in Audubon
as a summary judgment motion by another name has
evolved into an exception to the jury right, allowing
the court—rather than the jury—to resolve factual dis-
putes en route to disposing of an action as barred by
a release of claims, even in the face of a jury demand.
As context for the evolution of that procedure, we start
by reviewing the jury right from which it deviates.
a
The jury right—from which Audubon-style summary
enforcement deviates by allowing the court, rather than
the jury, to resolve issues of material fact—is well estab-
lished. ‘‘The right to a jury trial is fundamental in our
judicial system, and . . . includes the right to have
issues of fact as to which there is room for a reasonable
difference of opinion among fair-minded [people]
passed upon by the jury and not by the court.’’ Howard
v. MacDonald, 270 Conn. 111, 128, 851 A.2d 1142 (2004).
‘‘The right to a jury trial in Connecticut originates from
article first, § 19, of the constitution of Connecticut,
as amended by article four of the amendments, which
provides in relevant part that ‘[t]he right of trial by jury
shall remain inviolate . . . .’ This particular provision
of the constitution has been construed by Connecticut
courts to mean that if there was a right to a trial by
jury at the time of the adoption of the provision, then
that right remains intact.’’ Welles v. Lichaj, 136 Conn.
App. 347, 352, 46 A.3d 246, cert. denied, 306 Conn. 904,
52 A.3d 730 (2012).
In Connecticut, as elsewhere, the fundamental nature
of the jury right is also reflected in the high bar that a
party must overcome to dispose of a case by motion,
without a jury. So long as a court has jurisdiction, it
cannot grant such a motion if even one issue of material
fact remains to be resolved. See Stuart v. Freiberg, 316
Conn. 809, 821, 116 A.3d 1195 (2015) (‘‘The party seeking
summary judgment has the burden of showing the
absence of any genuine issue [of] material facts . . . .
A material fact . . . [is] a fact which will make a differ-
ence in the result of the case.’’ [Internal quotation marks
omitted.]); Haynes v. Middletown, 314 Conn. 303, 312,
101 A.3d 249 (2014) (‘‘a motion for judgment notwith-
standing the verdict is not a new motion, but the
renewal of a motion for a directed verdict’’ [internal
quotation marks omitted]); Mueller v. Tepler, 312 Conn.
631, 647, 95 A.3d 1011 (2014) (‘‘[i]f facts provable in the
complaint would support a cause of action, the motion
to strike must be denied’’ [internal quotation marks
omitted]); Connell v. Colwell, 214 Conn. 242, 247, 571
A.2d 116 (1990) (test for directing verdict is same as
test for granting summary judgment motion); cf. Cuozzo
v. Orange, 315 Conn. 606, 616, 109 A.3d 903 (2015)
(where party moves to dismiss for lack of jurisdiction,
and ‘‘jurisdictional determination is dependent on the
resolution of a critical factual dispute . . . [the court
must hold] an evidentiary hearing to establish jurisdic-
tional facts’’ [emphasis added; internal quotation marks
omitted]). Our Supreme Court has noted that these
‘‘well established standards,’’ which forbid a court from
taking an issue of material fact from the jury, compel
‘‘great deference to the historical function of the jury’’
and ‘‘find their roots in the constitutional right to a trial
by jury.’’ (Internal quotation marks omitted.) Curran
v. Kroll, 303 Conn. 845, 856, 37 A.3d 700 (2012).
b
Audubon itself—the first case to recognize a right to
enforce summarily an agreement to settle litigation—
was entirely consistent with the jury’s historical func-
tion, because it held only that a court could summarily
enforce such an agreement ‘‘as a matter of law’’ and
did not hold that the court could decide issues of fact.
Audubon Parking Associates Ltd. Partnership v. Bar-
clay & Stubbs, Inc., supra, 225 Conn. 811–12. The proce-
dure used in Audubon was identical to that of a motion
for summary judgment. See Practice Book §§ 17-44
(‘‘any party may move for a summary judgment as to
any claim or defense . . . at any time . . . [but if] the
case has been assigned for trial, a party must [first]
move for permission’’ [emphasis added]) and 17-49
(‘‘[summary] judgment . . . shall be rendered forth-
with if . . . there is no genuine issue as to any material
fact and . . . the moving party is entitled to judgment
as a matter of law’’ [emphasis added]).
In Audubon, the parties to a breach of lease action
told the judge—on the record, in open court, in the
midst of jury selection for the trial—that they had
agreed to settle the entire matter for $50,000. Audubon
Parking Associates Ltd. Partnership v. Barclay &
Stubbs, Inc., supra, 225 Conn. 806; see also id. (defen-
dants’ attorney told court, ‘‘I do want the record to be
clear that we do have a settlement’’ [internal quotation
marks omitted]). The defendants later reneged on the
settlement agreement, the plaintiff moved to enforce
the settlement, and the trial court granted the plaintiff’s
motion to enforce, rendering a judgment of $50,000
in favor of the plaintiff. Id., 806–807. On appeal, the
defendants conceded that they had agreed to settle the
case for $50,000 and that the settlement agreement was
binding. Id., 808. The defendants argued, however, that
the court could not simply render judgment in favor
of the plaintiff in accordance with the terms of the
settlement agreement. Rather, the defendants argued,
the plaintiff had to bring a new, separate action for
breach of the settlement agreement. Id., 811. Our
Supreme Court stated that it ‘‘ha[d] not previously con-
sidered this narrow question’’ of the proper procedure
for enforcing a settlement agreement. Id.
Our Supreme Court held that ‘‘a trial court may sum-
marily enforce a settlement agreement within the
framework of the original lawsuit as a matter of law
when the parties do not dispute the terms of the
agreement.’’ (Emphasis added.) Id., 812. The court
relied on federal precedent that a ‘‘court’s authority
to enforce a settlement by entry of judgment in the
underlying action is especially clear where the settle-
ment is reported to the court during the course of a trial
or other significant courtroom proceedings’’; (internal
quotation marks omitted) id., 811; and that ‘‘[t]his
authority should normally be exercised whenever set-
tlements are announced in the midst of a trial.’’ (Internal
quotation marks omitted.) Id., 812. The court noted
that summary enforcement was both ‘‘essential to the
efficient use of judicial resources’’ and necessary to
vindicate the settling parties’ ‘‘right to avoid a trial.’’
(Emphasis in original.) Id.
The next step came when our Supreme Court
extended Audubon to permit the court to resolve not
just issues of law, but also issues of fact, in Ackerman
v. Sobol Family Partnership, LLP, supra, 298 Conn.
495. In that case, after mediation before a judge and
one week before jury selection, the parties exchanged
letters and phone calls outside of court,13 ultimately
reaching a global settlement of the case. Id., 499–503,
517. The plaintiffs later reneged, arguing that they had
not wanted to settle and that their attorney never had
authority to settle on their behalf. See id., 498, 505 n.6.
Our Supreme Court acknowledged that the ‘‘nature and
extent of an agent’s authority is a question of fact for
the trier’’; (internal quotation marks omitted) id., 507;
but held nevertheless that the plaintiffs had no right to
a jury trial on the factual issue of their attorney’s author-
ity to settle. Id., 534–35. The court reasoned that one
has a right to a jury trial for an action at law but not
for an action in equity. Id., 532. Although the plaintiffs
may have had a right to a jury trial on their underlying
contract and tort claims—which were actions at law—
they had no right to a jury trial on the factual issues
raised by the defendant’s motion to enforce—which
was essentially an action in equity for specific perfor-
mance of the settlement agreement. Id., 534–35. Accord-
ingly, the court did not err in resolving those factual
disputes itself and then summarily enforcing the settle-
ment agreement that it found existed.14 Id., 530–31.
In so holding, the court in Ackerman implicitly
approved a line of Audubon progeny that had empow-
ered trial courts to find facts where necessary to sum-
marily enforce a settlement agreement. See, e.g.,
McCook v. Whitebirch Construction, LLC, 117 Conn.
App. 320, 329, 978 A.2d 1150 (2009) (‘‘the record sup-
ports the court’s [factual] finding that the parties
reached a mutual understanding with respect to the
settlement agreement’’), cert. denied, 294 Conn. 932,
987 A.2d 1029 (2010); DAP Financial Management Co.
v. Mor-Fam Electric, Inc., 59 Conn. App. 92, 98, 755
A.2d 925 (2000) (‘‘What the plaintiff really seeks is to
have us believe his witnesses rather than the witnesses
proffered by the defendants. . . . We are bound by
the court’s finding that no dispute existed between the
parties at the time their counsel reached a settlement.’’
[Citation omitted.]); Sicaras v. Hartford, 44 Conn. App.
771, 786, 789, 692 A.2d 1290 (‘‘[T]he plaintiff claims
that he was under duress at the time he agreed to the
settlement . . . . The trial court heard extensive testi-
mony on this issue . . . . We conclude that [the trial
court did not clearly err in finding that] the plaintiff
was not under duress.’’ [Citations omitted.]), cert.
denied, 241 Conn. 916, 696 A.2d 340 (1997); see also
Orange Palladium, LLC v. Readey, 144 Conn. App. 283,
298, 72 A.3d 1191 (2013) (‘‘it was not clearly erroneous
for the court to decline to find that the parties had
orally agreed . . . to alter the defendant’s obligations
under the settlement agreement’’); Hogan v. Lagosz,
124 Conn. App. 602, 609, 6 A.3d 112 (2010) (‘‘[i]n the
present case, the court found that [the defendant’s attor-
ney] had apparent authority to sign the [settlement]
agreement on the defendant’s behalf’’), cert. denied, 299
Conn. 923, 11 A.3d 151 (2011).
There appear to be two limits on a court’s power to
resolve factual disputes en route to summarily enforc-
ing a release of claims, namely, that the agreement at
issue must: (1) be an agreement to settle the litigation;
and (2) clearly and unambiguously set forth all of its
material terms.
The second limit—that the terms of the purported
agreement must be clear and unambiguous—is well
established. See Ballard v. Asset Recovery Management
Co., 39 Conn. App. 805, 810 and n.3, 667 A.2d 1298 (1995)
(‘‘[b]ecause the contract was unclear and ambiguous
on its face . . . [w]e are not persuaded that we should
go beyond the boundaries of Audubon . . . and create
a limited dispute hearing by judicial fiat where the terms
of a purported settlement agreement are disputed’’
[internal quotation marks omitted]), cert. denied, 236
Conn. 906, 670 A.2d 1306 (1996). In nearly every case
in which this court has denied Audubon enforcement,
we have done so because the alleged agreement failed
to set forth clearly and unambiguously all of its material
terms. See Santos v. Massad-Zion Motor Sales Co., 160
Conn. App. 12, 14, 123 A.3d 883 (parties agreed to
include confidentiality provision but never agreed on
what it would say), cert. denied, 319 Conn. 959, 125
A.3d 1013 (2015); WiFiLand, LLP v. Hudson, 153 Conn.
App. 87, 106, 100 A.3d 450 (2014) (same); Kidder v.
Read, 150 Conn. App. 720, 731, 735, 93 A.3d 599 (2014)
(parties agreed on payment amount but not on payment
plan); Amica Mutual Ins. Co. v. Welch Enterprises,
Inc., 114 Conn. App. 290, 293, 970 A.2d 730 (2009) (par-
ties agreed on payment amount but not on whether
plaintiff must also secure release of claims from third
party); Ballard v. Asset Recovery Management Co.,
supra, 808 (parties agreed defendants must reimburse
plaintiffs for ‘‘all the extras [the plaintiffs’] clients have
paid for’’ but ‘‘extras’’ was unclear and ambiguous
[internal quotation marks omitted]).
The first requirement—that the release of claims at
issue be part of an agreement to settle the litigation—
is discussed less often because, at least in the cases
that have reached this court, it almost always has been
met. In the one case that arguably discussed it, a hus-
band tried to enforce his wife’s statement that she
would not object to selling certain marital property—
which she made on the witness stand during cross-
examination at their marital dissolution trial, but
recanted on redirect—as if it were an agreement to
settle that litigation. Brycki v. Brycki, 91 Conn. App.
579, 585, 881 A.2d 1056 (2005). The court, after noting
that it was unclear whether any such agreement existed
in light of the wife’s contrary testimony on redirect,
went on to say that it was ‘‘unwilling to extend the rule
in Audubon . . . to representations made by a party
witness under the inquiry of cross-examination and
where the witness has had no opportunity to consult
privately with her attorney regarding the legal conse-
quences of those representations.’’15 Id., 587. Accord-
ingly, we turn to a more detailed discussion of the
requirement that the release of claims at issue be part
of an agreement to settle the litigation.
c
We conclude that for a contract to be an agreement
to settle litigation subject to Audubon enforcement, it
must be reached after that litigation commenced. We
reach this conclusion because the commencement of
an action first invokes the authority of the court, which
then acquires its own interest in enforcing any settle-
ment reached.
The summary enforcement power recognized in
Audubon and progeny is grounded in the court’s own
interest in managing the matters before it. That interest
comprises both the court’s interest in efficient docket
management; see Audubon Parking Associates Ltd.
Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn.
812 (‘‘[s]ummary enforcement is . . . essential to the
efficient use of judicial resources’’); and the court’s
interest in the integrity of judicial proceedings; see id.,
811 (‘‘[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 court-
room proceedings’’ [internal quotation marks omitted]).
In the majority of cases where settlement agreements
have been summarily enforced pursuant to Audubon,
the agreement at issue was either read directly into the
record or otherwise reported to the court.16 In the cases
where a settlement agreement was not directly pre-
sented to the court in full, it nevertheless was in some
sense placed before the court during pending litigation.
Ackerman v. Sobol Family Partnership, LLP, supra,
298 Conn. 499 (‘‘[a]t the time the [pretrial] mediation
was concluded, a settlement had not been reached . . .
although [the mediating judge] did remain active in
further negotiations between the parties,’’ which ulti-
mately resulted in a settlement agreement reached
through out-of-court letters and phone calls, one week
before trial [internal quotation marks omitted]); see id.,
517; Maharishi School of Vedic Sciences, Inc. (Connect-
icut) v. Connecticut Constitution Associates Ltd. Part-
nership, 260 Conn. 598, 600–601, 799 A.2d 1027 (2002)
(after ‘‘[t]rial on the matter commenced . . . the par-
ties informed the court that they had reached an
agreement in principle’’ but finalized details later, dur-
ing out-of-court negotiations); Tirreno v. The Hartford,
161 Conn. App. 678, 681, 129 A.3d 735 (2015) (‘‘[f]ollow-
ing a pretrial conference . . . [settlement] terms were
agreed to orally, memorialized in a series of e-mails
exchanged between counsel, and later testified to by
[the reneging party’s] counsel [before the court at an
Audubon hearing]’’).
We have never extended Audubon to agreements
that, when made, remained wholly outside the court’s
domain because no one had yet invoked the court’s
jurisdiction through service of a summons and com-
plaint. That initial invocation of the court’s authority
distinguishes an agreement to settle litigation—which
may be summarily enforced by Audubon motion—from
a preemptive release of claims—which may be enforced
through a motion for summary judgment or by presenta-
tion at trial as a special defense. When an agreement
is made to settle a matter pending before the court—
i.e., after the litigation has commenced—the swifter
remedy of Audubon summary enforcement is justified
to protect the integrity of the judicial process.
We thus conclude that, to qualify as an agreement to
settle litigation for purposes of Audubon-style summary
enforcement, an agreement must be reached after the
relevant litigation commenced.
2
Applying that rule to the Release and Separation
Agreement, we conclude that it was not an agreement
to settle litigation then pending in court, such as may
be summarily enforced pursuant to Audubon. Here, the
Release and Separation Agreement was finalized nearly
two years before the plaintiff raised those claims, for
the first time, in the present action. The defendants
argue, however, that the Release and Separation
Agreement did settle their administrative proceeding
under § 10-151 (d) to terminate the plaintiff’s employ-
ment, and so the contract’s provisions—including its
general release provision—were subject to Audubon-
style summary enforcement. We disagree. An employ-
er’s action to terminate its employee does not morph
into litigation merely because that termination is done
pursuant to the formal procedures of § 10-151 (d).17
In sum, while the release may still be enforceable
through ordinary procedural channels, these are hardly
the circumstances that give rise to a right to summary
enforcement under Audubon. Cf. Audubon Parking
Associates Ltd. Partnership v. Barclay & Stubbs, Inc.,
supra, 225 Conn. 806–807 (‘‘During jury selection, the
parties represented on the record, in open court before
the trial judge . . . that they had agreed to settle the
entire matter, including the claims asserted in the com-
plaint and the counterclaim, for a sum of $50,000. . . .
Counsel for the defendants then said: ‘I do want the
record to be clear that we do have a settlement.’ . . .
[T]he defendants [then] failed to abide by the terms of
the settlement . . . .’’ [Footnote omitted.]). Accord-
ingly, we conclude that the court improperly rendered
judgment in favor of the defendants at this juncture.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Although the defendants refer throughout their pleadings to a ‘‘Settlement
Agreement,’’ and the trial court largely adopted that nomenclature in its
memorandum of decision, the document is titled ‘‘Release and Separation
Agreement.’’ We refer to it by its actual name.
2
The defendants’ identities are not entirely clear. The plaintiff’s complaint
was captioned ‘‘SAMUEL d. MATOS VS. ANA ORTIZ, SUPERINTENDENT,
WINDHAM PUBLIC SCHOOLS, ET AL.’’ and had counts directed at ‘‘Wind-
ham Public Schools’’ and ‘‘WFT.’’ The summons named as defendants ‘‘Ana
Ortiz, Superintendent of Windham Public Schools,’’ and ‘‘Randall Prose,
President of Windham Federation of Teachers.’’ As the defendants note in
their brief, the plaintiff later moved to cite in the board, which motion
was granted.
As to Prose, in his capacity as president of the union, he moved early on
to dismiss the complaint against him on the ground that the plaintiff had
failed to exhaust the administrative remedy of a hearing before the State
Board of Labor Relations. The court granted Prose’s motion on March 4,
2014, and the plaintiff has not appealed from that judgment. Accordingly,
the board and Ortiz in her capacity as its superintendent appear to be the
two remaining defendants on appeal, whom we refer to collectively as
the defendants.
3
The defendants acknowledged at oral argument before this court that
no such lawsuit existed at that time.
4
In his original five count complaint, the plaintiff alleged that (1) the
Windham Public Schools negligently investigated him for child abuse; (2)
the Windham Public Schools reported the suspected abuse to the department
without reasonable cause, violating his first amendment right to freedom of
expression; (3) the Windham Public Schools harassed him; (4) the Windham
Federation of Teachers and Doyle failed to protect the plaintiff’s fourteenth
amendment right to due process, which, in turn, violated both the plaintiff’s
first amendment right to freedom of speech, and the Rules of Professional
Conduct; and (5) the Windham Public Schools and Windham Federation of
Teachers wrongly suggested that the plaintiff resign.
5
The court never ruled on this motion.
6
The relevant portion of cross-examination was as follows:
‘‘[The Plaintiff]: . . . Do you recall any of the specific points on this
Release and Separation Agreement that we discussed?
‘‘[Doyle]: We went through the separation agreement. I explained to you
that you were going to get paid ‘til the end of the year; that you—that the
board would be limited as to what it could say regarding you; that it would
say that you resigned effective June 30th, and it was going to be limited to
that type of language. They weren’t going to be able to—they weren’t going
to be able to go any farther than that. It had the general release in it that
you couldn’t sue over anything.
‘‘[The Plaintiff]: That I couldn’t?
‘‘[Doyle]: Couldn’t. Those were some of the high points.
‘‘[The Plaintiff]: What about the [Commission on Human Rights and Oppor-
tunities] aspect?
‘‘[Doyle]: There’s a paragraph in there regarding [the Commission on
Human Rights and Opportunities]; that you—that you can bring an action,
but you can’t—you can’t—you can’t get any benefit out of that action.
‘‘[The Plaintiff]: Right. All right. Well, okay. You knew, Attorney Doyle,
that I wanted to keep my job; did you not?
‘‘[Doyle]: No, I didn’t know that, Mr. Matos, because you signed that
agreement, and you had previously discussed with me you didn’t want to
work for the Windham School District.
‘‘[The Plaintiff]: I did—I said I didn’t want to?
‘‘[Doyle]: You did say that.
‘‘[The Plaintiff]: Or was it, Attorney Doyle, that you said that?
‘‘[Doyle]: I didn’t say that.
‘‘[The Plaintiff]: Attorney Doyle, the General Statutes § 10-151—
‘‘[Doyle]: Yes, sir?
‘‘[The Plaintiff]: Why wasn’t that—why didn’t we go that route?
‘‘[Doyle]: Because you agreed to settle the claim, as opposed to going
forward with the hearing.
‘‘[The Plaintiff]: I never agreed to that.
‘‘The Court: You can’t make statements.
‘‘[The Plaintiff]: Okay. I can’t—I can’t make statements. Okay. . . . How
did I say that, Attorney Doyle?
‘‘[Doyle]: You had me enter into negotiations with the board’s attorney
and you executed the settlement agreement. . . .
‘‘[The Plaintiff]: And [the letter stating that my employment was to be
terminated] also stated that I was to be terminated according to the General
Statutes [§ 10-151]—the procedure.
‘‘[Doyle]: That’s right.
‘‘[The Plaintiff]: And you mean to tell me that I gave that up?
‘‘[Doyle]: Mr. Matos, you settled the case in lieu of going to the administra-
tive trial under § 10-151.’’
7
We hold only that the Release and Separation Agreement was not sum-
marily enforceable, pursuant to Audubon and its progeny. We offer no
opinion on whether the release is nevertheless enforceable through the
ordinary procedural channels, for example, by pleading the release as a
special defense and then moving for summary judgment on that basis.
8
Our Supreme Court has held that the standard for reviewing an unpre-
served issue that was raised on appeal is identical to the standard for
reviewing an unpreserved issue that was not raised on appeal. Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra,
311 Conn. 161–62.
9
In such cases, review is mandatory. Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 161.
10
The order instructed the parties to file simultaneous supplemental briefs
addressing the following question: ‘‘Whether the summary enforcement
power announced in Audubon Parking Associates Ltd. Partnership v. Bar-
clay & Stubbs, Inc., [supra, 225 Conn. 812], extends to the summary enforce-
ment of agreements, purporting to settle litigation, but reached both outside
the framework of and before the start of the litigation in which enforcement
is sought.’’
11
The defendants also had an opportunity to address the Audubon issue
before the trial court, when they moved to summarily enforce the Release
and Separation Agreement on the ground that Audubon permitted such relief.
12
That the issue is one of first impression does not preclude plain error
review. See, e.g., State v. Velasco, 253 Conn. 210, 218 n.9, 751 A.2d 800 (2000)
(invoking plain error doctrine to reach unpreserved issue of first impression
as to construction of statute); Westport Taxi Service, Inc. v. Westport Transit
District, 235 Conn. 1, 37, 39, 664 A.2d 719 (1995) (‘‘we reach this issue under
the plain error rule’’ where ‘‘for the first time, we are asked to decide whether
a plaintiff may be awarded prejudgment interest under the [Connecticut
Antitrust Act, General Statutes § 35-24 et seq.]’’); Madison Hills Ltd. Partner-
ship II v. Madison Hills, Inc., 35 Conn. App. 81, 83–84, 90, 644 A.2d 363
(noting that ‘‘[o]ur research has revealed no reported cases’’ that adjudicate
the ‘‘difficult [unpreserved] question . . . presented in this case’’ as to con-
struction of Uniform Partnership Act [General Statutes § 34-39 et seq.], and
reaching it pursuant to plain error doctrine), cert. denied, 231 Conn. 913,
648 A.2d 153 (1994); Walker v. Lombardo, 2 Conn. App. 266, 269, 477 A.2d
168 (1984) (noting that ‘‘[t]here is no Connecticut case which is dispositive
of the particular [unpreserved] issue of this case,’’ as to rules governing
summary judgment, and reaching it without expressly invoking plain error
doctrine); but see State v. Fagan, supra, 280 Conn. 88 (‘‘the question . . .
is an issue of first impression . . . [and so] we cannot conclude that the
trial court committed a clear and obvious error’’).
13
The opinion notes that after the mediation, the mediation judge
‘‘remain[ed] active in further negotiations between the parties,’’ but the
precise extent of judicial involvement in the parties’ settlement is unclear.
(Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership,
LLP, supra, 298 Conn. 499.
14
Curiously, nothing in the reasoning of Ackerman is unique to settlement
agreements. If a defendant moved to enforce summarily a contract of what-
ever kind, that motion would also be ‘‘essentially’’ a claim for specific
performance and so, on the logic of Ackerman, the plaintiff could not demand
that a jury decide disputes of fact material to its resolution, no matter that
the underlying claims were actions at law. Cf. Barber v. Baldwin, 135 Conn.
558, 564–65, 67 A.2d 1 (1949) (court may itself resolve disputes of fact
material to defendant’s equitable counterclaim, and if those findings dispose
of plaintiff’s underlying action at law, plaintiff is not entitled to jury trial of it).
15
The court also noted two other grounds for denying summary enforce-
ment: (1) General Statutes § 46b-66 required judicial approval of any settle-
ment agreement; and (2) Audubon required both parties to ‘‘assent in open
court to each provision of the claimed agreement.’’ Brycki v. Brycki, supra,
91 Conn. App. 586–88. We do not discuss these alternative grounds because
the requirement of judicial approval is unique to family law cases; id., 587;
and, as to assent in open court, more recent cases have not regarded it as an
independent requirement; see, e.g., Ackerman v. Sobol Family Partnership,
LLP, supra, 298 Conn. 498–99, 517 (affirming summary enforcement of
settlement agreement finalized during out-of-court phone call although, at
court hearing, plaintiffs denied agreement existed). Accordingly, the better
reading of the open court requirement in Brycki is that the court meant
that either the parties must assent to the settlement agreement in open
court or otherwise manifest their intent to be bound by it. See Brycki v.
Brycki, supra, 587–88 (citing as support Sicaras v. Hartford, supra, 44 Conn.
App. 777–78, which noted that declaration in open court was acceptable
substitute for signing agreement). In short, a settlement agreement is a
contract and so it must meet the formal requirements of a contract, including
that the parties in some way manifest their intent to be bound. See Steeltech
Building Products, Inc. v. Edward Sutt Associates, Inc., 18 Conn. App. 469,
471–72, 559 A.2d 228 (1989) (existence of contract determined by whether
parties manifested intent to be bound). Declaration in open court appears to
be one way of meeting this requirement, rather than a separate requirement in
itself.
16
See Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs,
Inc., supra, 225 Conn. 806 (settlement agreement was stated ‘‘on the record,
in open court before the trial judge’’); Banziruk v. Banziruk, 154 Conn.
App. 605, 608, 109 A.3d 494 (2014) (‘‘A trial date was scheduled for February
20, 2013, at which time the [parties’] . . . counsel told the court that the
parties had reached an agreement. The settlement agreement was placed
on the record, and the court canvassed all of the parties to ensure that the
terms were acceptable to everyone involved.’’); Orange Palladium, LLC v.
Readey, supra, 144 Conn. App. 286–87 (on ‘‘the eve of trial, the parties
reached an agreement . . . [which the] plaintiff’s counsel read . . . into
the record’’); Reid & Riege, P.C. v. Bulakites, 132 Conn. App. 209, 211, 31
A.3d 406 (2011) (‘‘[T]he parties attended a pretrial conference at which they
agreed to participate in court-annexed mediation . . . . As a result of the
mediation, the parties reached an agreement. Counsel for the parties
appeared before the court . . . at which time the plaintiff’s counsel stated
the agreement for the record.’’), cert. denied, 303 Conn. 926, 35 A.3d 1076
(2012); Vance v. Tassmer, 128 Conn. App. 101, 104, 16 A.3d 782 (2011) (‘‘[o]n
. . . the eve of trial, the parties reached a settlement agreement . . .
[which] was signed by all of the parties . . . and was placed on the record
before the court’’ [internal quotation marks omitted]), appeal dismissed, 307
Conn. 635, 59 A.3d 170 (2013); Massey v. Branford, 118 Conn. App. 491,
493, 985 A.2d 335 (2009) (‘‘after extensive discovery and on the eve of trial
. . . the parties drew up a handwritten document entitled ‘settlement’ . . .
[and] notified the court of the agreement’’), cert. denied, 295 Conn. 913, 990
A.2d 345 (2010); McCook v. Whitebirch Construction, LLC, supra, 117 Conn.
App. 323 (‘‘[a]t the conclusion of [a second pretrial] conference, counsel
for [the parties] reported to the court . . . that a global settlement
agreement had been reached in all three cases . . . [and] followed up with
a letter memorializing the agreement’’); Rosenblit v. Laschever, 115 Conn.
App. 282, 284–85, 972 A.2d 736 (2009) (‘‘at a pretrial hearing before the court
. . . the defendant entered into an agreement and stipulation to settle the
action . . . [and] answered affirmatively to the questions posed by [the
judge] as to whether he had an adequate opportunity to consider the terms’’);
Waldman v. Beck, 101 Conn. App. 669, 670 n.1, 671, 922 A.2d 340 (2007)
(defendant conceded on appeal that ‘‘at a . . . pretrial conference, the
parties had reached an agreement to settle the matter’’); DAP Financial
Management Co. v. Mor-Fam Electric, Inc., supra, 59 Conn. App. 93–94
(‘‘Approximately one week before trial . . . [t]he defendants’ counsel wrote
to the plaintiff’s counsel iterating the defendants’ $20,000 settlement offer
. . . . [The] plaintiff’s counsel responded that the plaintiff had accepted
the offer . . . confirmed his oral representation by facsimile . . . [and]
informed the court that the matter had settled.’’); Sicaras v. Hartford, supra,
44 Conn. App. 772 (‘‘before beginning trial, the parties signed a settlement
agreement that was read onto the record in open court on the same day’’).
17
But see Sekor v. Board of Education, 240 Conn. 119, 125, 689 A.2d 1112
(1997) (‘‘[w]hen considering termination of a tenured teacher’s employment
contract [pursuant to § 10-151 (d)], a school board acts, like an administrative
agency, in a quasi-judicial capacity’’ [internal quotation marks omitted]).