Wittman v. Intense Movers, Inc. ( 2021 )

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MATTHEW WITTMAN ET AL. v. INTENSE
MOVERS, INC., ET AL.
(AC 43027)
Bright, C. J., and Alvord and Oliver, Js.
Syllabus
The plaintiffs sought, inter alia, to recover damages from the defendants,
A and W, for their alleged mismanagement of the finances of a company,
I Co., of which the parties together owned all of the shares. After the
plaintiffs initiated the action, A filed with the trial court a notice of
election to purchase the plaintiffs’ shares of I Co. The parties then
executed a memorandum of understanding resolving the primary issues
of their dispute, which required that A make payments over time to the
plaintiffs in exchange for receiving the plaintiffs’ shares in I Co. The
memorandum of understanding provided that the parties would enter
into a more detailed settlement agreement that would provide the neces-
sary terms to effectuate the plaintiffs’ transfer of their shares to A. After
the parties appeared to have reached a full settlement, the defendants
did not sign a written settlement agreement and A did not make his
first payment. Subsequently, the plaintiffs filed a motion to enforce the
settlement agreement. In objection, A claimed that he never had the
funds to buy out the plaintiffs, and W claimed that the settlement was
always conditional upon A raising the necessary funds through a loan.
The court granted the plaintiffs’ motion to enforce, and rendered judg-
ment in favor of the plaintiffs, from which the defendants appealed to
this court. Held that the defendants failed to establish that the trial
court improperly enforced the settlement agreement, which consisted
of the signed memorandum of understanding as supplemented by the
unsigned settlement document with attachments: the defendants pro-
vided neither law nor argument that the court was clearly erroneous in
its factual findings or incorrect in its legal conclusions, as the court, in
its memorandum of decision, discussed the communications submitted
to it by both the plaintiffs and the defendants, found that A had filed a
notice of election to purchase the plaintiffs’ shares of I Co., to which
no shareholder had an objection and which A never sought to withdraw,
and it acknowledged that the defendants referenced A’s pursuit of financ-
ing in a number of the communications, but refused to infer an unex-
pressed intent on the part of the defendants that obtaining financing
was a contingency to any settlement; moreover, the defendants signed
the memorandum of understanding, which provided that it contained
the essential terms of a settlement agreement between the parties that
would form the basis for a written agreement, but contained no contin-
gency for financing, and during negotiations of the final settlement
agreement, the defendants requested multiple changes, but none con-
cerned inserting language regarding the ability of the defendants to
obtain financing as a contingency of the settlement agreement.
Argued October 15, 2020—officially released January 5, 2021
Procedural History
Action to recover damages for, inter alia, breach of
fiduciary duty, and for other relief, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk
where the court, Hon. Kenneth B. Povodator, judge
trial referee, granted the plaintiffs’ motion to enforce
a settlement agreement and rendered judgment for the
plaintiffs, from which the defendant Alexander Leute
et al. appealed to this court. Affirmed.
William R. Leute III, self-represented, the appel-
lant (defendant).
Alexander Leute, self-represented, the appellant
(defendant).
Richard S. Order, with whom was Valerie M. Ferdon,
for the appellees (plaintiffs).
Opinion
BRIGHT, C. J. The self-represented defendants, Alex-
ander Leute and William R. Leute III,1 appeal from the
judgment of the trial court enforcing a signed memoran-
dum of understanding as supplemented by an unsigned
settlement document with its attachments (jointly, set-
tlement agreement) made between the defendants and
the plaintiffs, Matthew Wittman and Carol Wittman,
regarding the defendants’ purchase of the plaintiffs’
shares of stock in Intense Movers, Inc. (company). On
appeal, the defendants claim that the trial court erred in
granting the plaintiffs’ motion to enforce the settlement
agreement because the defendants’ ability to obtain
third-party financing to fund the purchase of the plain-
tiffs’ shares was a contingency of the settlement agree-
ment. We affirm the judgment of the trial court.
The following facts and procedural history, obtained
from our review of the record and the court’s memoran-
dum of decision, inform our review of the issues in the
appeal. The four parties are the sole shareholders of
the company. The plaintiffs brought this action against
the defendants, alleging in their amended complaint,
among other things, breach of fiduciary duty, unjust
enrichment, civil theft, and conversion, on the basis
of their claims that the defendants mismanaged the
finances of the company. The plaintiffs sought, inter
alia, (1) pursuant to General Statutes § 33-896 (a) (1),
a judicial dissolution of the company, (2) pursuant to
General Statutes § 33-897 (c), the appointment of a
receiver pendente lite, (3) pursuant to General Statutes
§ 33-898, the appointment of a permanent receiver, and
(4) damages. On February 27, 2017, the defendant Alex-
ander Leute filed with the court, pursuant to General
Statutes § 33-900 (b), a notice of election to purchase
the plaintiffs’ shares of the company.
On October 19, 2018, the parties executed a memoran-
dum of understanding resolving the primary issues of
their dispute, which required in part that the defendant
Alexander Leute make payments over time to the plain-
tiffs in exchange for receiving the plaintiffs’ shares in
the company. The memorandum of understanding pro-
vided that the parties would enter into a more detailed
settlement agreement that would provide, among other
things, the necessary terms to effectuate the plaintiffs’
transfer of their shares to Alexander Leute. As the par-
ties negotiated the additional terms of the settlement
agreement, the defendants repeatedly requested vari-
ous new terms to which the plaintiffs agreed. On
November 26, 2018, the parties appeared to have
reached a full settlement, and the plaintiffs waited for
the defendants to sign the written settlement agreement
and for Alexander Leute to send his first payment of
$150,000 toward his purchase of the plaintiffs’ shares.
As the defendants continued to delay the signing of
the settlement agreement and after Alexander Leute
missed the first payment date as set forth in the agree-
ment, the plaintiffs, on December 26, 2018, filed a
motion to enforce the memorandum of understanding
as supplemented by the settlement document (motion
to enforce). In the motion to enforce, the plaintiffs
alleged that the parties had reached a settlement on
October 19, 2018, as evinced by the signed memoran-
dum of understanding, which was revised and finalized
on November 26, 2018, as evinced by the settlement
agreement. The plaintiffs claimed that, despite the
defendants’ written assent to the terms of the settlement
agreement, which had been drafted by the plaintiffs’
attorney, Richard S. Order, the defendants then refused
to sign the settlement agreement and Alexander Leute
refused to make his initial payment of $150,000. The
plaintiffs requested that the court issue an order (1)
declaring the settlement agreement to be enforceable,
(2) directing the defendants to sign, within ten days,
the settlement agreement and the implementation
paperwork necessary to the settlement agreement, and
(3) directing Alexander Leute to pay the $150,000 initial
payment and any other missed payments within ten
days and to begin making the future monthly and annual
payments in accordance with schedules set forth in the
settlement agreement.
Attached to the plaintiffs’ memorandum in support
of their motion to enforce was an affidavit of Attorney
Order attesting to the facts surrounding his negotiation
of the settlement agreement with the defendants and
authenticating the many documents that were attached
to his affidavit. Those documents included the memo-
randum of understanding reached and signed by Attor-
ney Order and the defendants, numerous e-mails
between Attorney Order and the defendants, e-mails
between Alexander Leute and a banker that Alexander
Leute had forwarded to Attorney Order, and the settle-
ment agreement with supporting documents that Attor-
ney Order had negotiated with the defendants on behalf
of the plaintiffs.
On January 3, 2019, Alexander Leute filed an objec-
tion to the motion to enforce, arguing that he never
had the funds to buy out the plaintiffs, despite having
approached several different lenders. In response, the
plaintiffs submitted a supplemental affidavit provided
by Attorney Order, in which he attested that the defen-
dants never requested that receipt of a loan be a condi-
tion precedent to the settlement agreement. William R.
Leute III responded by arguing that the ‘‘settlement was
always conditional upon Alexander Leute raising the
necessary $150,000 funds . . . .’’ The defendants did
not submit an affidavit, but did submit copies of various
e-mails between the parties that were dated before the
memorandum of understanding was executed.
On January 28, 2019, the court held a hearing on the
plaintiffs’ motion to enforce. During that hearing, the
court carefully explained the purpose of the hearing,
and it clarified that the defendants, who previously had
been represented by counsel, were now self-repre-
sented. The court then explained the purpose of an
Audubon hearing; see Audubon Parking Associates
Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn.
804, 812, 626 A.2d 729 (1993) (Audubon) (clear and
unambiguous settlement agreement is enforceable sum-
marily if parties reached agreement after commencing
litigation); and it explained that the parties were
allowed to present sworn testimony and evidence dur-
ing the hearing. Attorney Order stated on the record
that he was available for cross-examination concerning
the contents of his affidavit if the defendants wanted
to examine him. Although considerable argument was
presented by both parties,2 neither party presented
sworn testimony and the defendants did not cross-
examine Attorney Order. The defendants did offer into
evidence printouts of two e-mails, however, to which
the plaintiffs offered no objection, and the court entered
them as full exhibits. The plaintiffs relied on the submis-
sions attached to their motion to enforce, to which the
defendants voiced no objection.
During oral argument, the trial court asked Alexander
Leute about his filing with the court, in February, 2017,
an election to purchase shares, and it asked him
whether he was ‘‘on the hook for [that],’’ to which he
responded, ‘‘Correct, that’s correct.’’ The court also
explained to the defendants that ‘‘the fact that you may
need to obtain financing doesn’t necessarily mean that
the need to obtain financing is automatically a contin-
gency if you don’t say so. And that’s part of the problem
I think I am going to have to deal with in this case
because you’re saying we talked about the fact that we
are looking for a loan, but you never put it expressly
into the agreement.’’ Alexander Leute stated that he
understood. The court then asked him if this was ‘‘a
fair summary of where we are,’’ to which he responded,
‘‘That’s—that’s an exactly fair summary, Your Honor.’’
Alexander Leute also stated that he had not understood
the enforceability of the memorandum of understanding
and that he ‘‘had not done [his] due diligence . . . .’’
Attorney Order argued that the trial court should
enforce the settlement agreement, require the defen-
dants to sign it, and require the defendants to sign all
the necessary attachments. The court asked Attorney
Order whether the judgment alone would be sufficient
or if the court necessarily had to order the defendants
to sign the documents. Attorney Order stated that the
judgment likely was enough. See footnote 4 of this opin-
ion. At the end of the hearing, the court stated that it
would take the matter on the papers.
On May 20, 2019, the court, guided in part by Kidder v.
Read, 150 Conn. App. 720, 93 A.3d 599 (2014), rendered
judgment granting the plaintiffs’ motion to enforce. In
its memorandum of decision, the court stated that it
thoroughly had reviewed the communications between
the defendants and the plaintiffs, noting the signed
memorandum of understanding and the multiple e-mail
exchanges. The court stated that the defendants fre-
quently had requested new changes to the parties’ settle-
ment agreement and that Attorney Order had addressed
and resolved each new request. The court also stated
that a frequent issue in the e-mail exchanges was the
date upon which Alexander Leute would get the money
to cover the initial $150,000 payment. In an e-mail dated
November 26, 2018, Alexander Leute told Attorney
Order, after making a request for another change to the
settlement agreement regarding the number of com-
pany shares to be issued, that ‘‘[e]verything else looks
good. I will have this signed and sent over to you ASAP
once that small change is made and I will have the
check mailed out as well.’’ (Emphasis added.) Attorney
Order made the change requested that same day, and
then e-mailed a new copy of the settlement agreement
to the defendants for their signatures.
In its memorandum of decision, the court stated that,
although Alexander Leute frequently referred to the
need to obtain financing, Attorney Order’s affidavit and
the e-mail documents attached thereto, convinced it
that ‘‘at no time was [Alexander Leute’s] success in
getting a loan identified as a condition for the [settle-
ment] agreement.’’ The court pointed to a specific e-mail
in which Alexander Leute told Attorney Order that he
had ‘‘several options for producing the initial payment
and [that he was] on course for having the check for
[him] by the last week of November but if something
goes sideways I don’t want to [be] forced to take out
a high interest loan in order to produce the funds by
the 16th.’’ (Internal quotation marks omitted.) The court
stated that the evidence showed that Alexander Leute
‘‘never made known to the plaintiffs, at the time of
the execution of the memorandum of understanding or
even in the month (plus) thereafter, that the [settle-
ment] agreement was contingent upon him getting
financing for the initial $150,000 payment. [Alexander
Leute] has pointed to no communication in which he
generally referred to obtaining financing as a condition,
much less identifying the specific terms of financing
. . . that would be deemed acceptable to him.’’
The court also stated that, although the memorandum
of understanding may have been incomplete as to all
material terms, the settlement agreement ‘‘ ‘filled in the
blanks’ as to those issues . . . .’’ Additionally, the court
explained that Alexander Leute had committed to pur-
chasing the plaintiffs’ shares in February, 2017, when
he filed with the court a notice of election to purchase
shares pursuant to § 33-900 (b),3 that he never had
attempted to withdraw that election, and that none of
the shareholders had an objection to the purchase. On
the basis of the record before it, the court concluded
that ‘‘[t]he only basis on which the defendant[s] [have]
challenged the [settlement] agreement is [Alexander
Leute’s] contention that there was an implied condition
of his obtaining financing, but, under the circumstances
of this case, including his statutory election to purchase
the plaintiffs’ shares, his commitment to a settlement
some [twenty] months later (memorandum of under-
standing), and his failure ever to identify financing as
an intended contingency for the settlement until after
the plaintiffs had indicated an intention to seek enforce-
ment of the settlement [agreement], the court believes
it would be inequitable not to approve the settlement
[agreement], and, therefore, the court finds that it is
equitable to permit the settlement [agreement] to go
forward. . . . [T]he court has concluded that there was
an enforceable settlement agreement between the par-
ties as embodied in the memorandum of understanding,
and, if not enforceable at that stage, then final and
enforceable as modified by the subsequent negotiations
of the parties and embodied in the final version of the
formal settlement agreement drafted by the plaintiffs.’’
Accordingly, the court rendered judgment in favor of
the plaintiffs, granting their motion to enforce the settle-
ment agreement. The defendants then filed the pres-
ent appeal.4
On appeal, the defendants claim that the trial court
erred in granting the plaintiffs’ motion to enforce on
the ground that Alexander Leute’s ability to obtain third-
party financing always was a contingency of the settle-
ment.5 The defendants set forth various arguments in
support of their claim. First, they argue that the e-mails
in the record ‘‘predat[ing] the October 19, 2018 [memo-
randum of understanding]’’ demonstrate that Alexander
Leute repeatedly told the plaintiffs that he needed to
obtain financing before they could settle their dispute6
and that the court ignored these e-mails, and, instead,
considered only the e-mails ‘‘between the Leutes and
Attorney Order to establish that the parties agreed to the
terms of the unsigned settlement agreement.’’ Second,
they argue that ‘‘Audubon requires clear and unambigu-
ous language and also that there is no dispute about
the terms.’’ (Emphasis in original.) They contend that
there is a dispute in this case regarding whether
obtaining financing was a condition precedent. Finally,
the defendants argue that the court modified an essen-
tial term of the settlement agreement by selecting arbi-
trary payment dates that differed from those set forth
in the settlement agreement.7 We are not persuaded by
the defendants’ arguments.
‘‘A trial court has the inherent power to enforce sum-
marily a settlement agreement as a matter of law when
the terms of the agreement are clear and unambiguous.
. . . Agreements that end lawsuits are contracts, some-
times enforceable in a subsequent suit, but in many
situations enforceable by entry of a judgment in the
original suit.’’ (Citations omitted; internal quotation
marks omitted.) Audubon Parking Associates Ltd.
Partnership v. Barclay & Stubbs, Inc., supra, 225
Conn. 811.
As was the case in Kidder, ‘‘[t]he issue on appeal
is whether the communications between the parties
constituted an enforceable settlement agreement. . . .
Because the defendant[s] [challenge] the trial court’s
legal conclusion that the [settlement] agreement was
summarily enforceable, we must determine whether
that conclusion is legally and logically correct and
whether [it finds] support in the facts set out in the
memorandum of decision. . . . In addition, to the
extent that the defendant[s’] claim implicates the
court’s factual findings, our review is limited to deciding
whether such findings were clearly erroneous. . . . 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.) Kidder v.
Read, supra, 150 Conn. App. 732–33.
‘‘A settlement agreement is a contract among the
parties. . . . A contract is not made so long as, in the
contemplation of the parties, something remains to be
done to establish the contractual relation. The law does
not . . . regard an arrangement as completed which
the parties regard as incomplete. . . . In construing
the agreement . . . the decisive question is the intent
of the parties as expressed. . . . The intention is to be
determined from the language used, the circumstances,
the motives of the parties and the purposes which they
sought to accomplish.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Id., 734. Fur-
thermore, ‘‘[p]arties are bound to the terms of a contract
even though it is not signed if their assent is otherwise
indicated.’’ (Internal quotation marks omitted.) Aquar-
ion Water Co. of Connecticut v. Beck Law Products &
Forms, LLC, 98 Conn. App. 234, 239, 907 A.2d 1274(2006).
Finally, ‘‘[t]he fact that parties engage in further nego-
tiations to clarify the essential terms of their mutual
undertakings does not establish the time at which their
undertakings ripen into an enforceable agreement . . .
[and we are aware of no authority] that assigns so
draconian a consequence to a continuing dialogue
between parties that have agreed to work together. We
know of no authority that precludes contracting parties
from engaging in subsequent negotiations to clarify or
to modify the agreement that they had earlier reached.’’
Willow Funding Co. v. Grencom Associates, 63 Conn.
App. 832, 843–44, 779 A.2d 174 (2001). ‘‘More important
. . . [when] the general terms on which the parties
indisputably had agreed . . . included all the terms
that were essential to an enforceable agreement . . .
[u]nder the modern law of contract . . . the parties
. . . may reach a binding agreement even if some of
the terms of that agreement are still indefinite.’’ Id.,
844; see also Hogan v. Lagosz, 124 Conn. App. 602, 616,
6 A.3d 112 (2010), cert. denied, 299 Conn. 923, 11 A.3d
151 (2011).
In the present case, the court found, and the record
confirms, that Alexander Leute, on February 27, 2017,
filed with the court a notice of election to purchase the
plaintiffs’ shares. It also found that the parties to this
case were the sole shareholders and that none of them
opposed his election. Additionally, Alexander Leute
never sought to withdraw that election. The court also
found that, on October 19, 2018, the parties executed
a memorandum of understanding, ‘‘facially resolving all
of their disputes’’ and it found that the memorandum
of understanding was supplemented and modified by
the settlement agreement that subsequently was negoti-
ated between the defendants and the plaintiffs’ attor-
ney, as had been anticipated by the specific language
in the memorandum of understanding.8 Nowhere in the
memorandum of understanding or settlement agree-
ment is any financing contingency set forth. Conse-
quently, the court aptly described the issue in dispute
as whether there was a condition precedent to the set-
tlement agreement, which was not incorporated into
the written words of the memorandum of understanding
and the supplements thereto. The record reveals that,
during the January 28, 2019 hearing, the parties agreed
that this was the issue to be decided by the court.
In its memorandum of decision, the court stated that
it considered the executed memorandum of under-
standing and the extensive subsequent written commu-
nications between the parties.9 In particular, the court
considered and discussed the communications admit-
ted into evidence and relied on by the defendants. The
court first noted that the memorandum of understand-
ing requires specific payments over time to the plaintiffs
to effectuate the purchase of the plaintiffs’ interest in
the company, and it specifically provides that the terms
of the memorandum of understanding will be set forth
more fully in another written agreement. Both defen-
dants signed the memorandum of understanding and
Attorney Order signed it on behalf of the plaintiffs. The
court specifically stated that, ‘‘[f]acially, the [memoran-
dum of understanding] sets forth the material terms of
what appears to be a comprehensive agreement,
intended to resolve all issues presented in the litiga-
tion.’’ The court also stated, however, that it recognized
that the memorandum of understanding provided that
the ‘‘scope of acts of default would be determined after
the signing of the memorandum of understanding,’’ and
that this ‘‘ ‘to be determined’ ’’ term, arguably, could
preclude a determination that the memorandum of
understanding was a final agreement. The court further
determined, however, that the subsequent agreement
drafted by the plaintiffs and agreed to by the defendants,
which ‘‘ ‘filled in the blanks’ ’’ as to those issues, cured
any possible defect in the original memorandum of
understanding. The defendants do not claim otherwise.
In fact, they conceded at oral argument before this
court that the final settlement agreement presented to
them for execution set forth the parties’ entire agree-
ment, except for the purported financing contingency.
As to the purported financing contingency, after
reviewing the written communications provided,
including specifically those relied on by the defendants,
the court found that Alexander Leute ‘‘never made
known to the plaintiff[s] . . . that the agreement was
contingent upon him getting financing for the initial
$150,000 payment. The defendant[s] [have] pointed to
no communication in which [they] generally referred
to obtaining financing as a condition . . . . [T]he tenor
of the e-mails provided—even those provided by the
defendant[s]—was that the financing was a process
underway with only some level of uncertainty as to
precisely when the financing would be obtained. . . .
Never was there a mention of conditioning the settle-
ment [agreement] on whether funding could be
obtained.’’ Furthermore, the court found that ‘‘the fact
that the parties had continued to fine-tune the agree-
ment, as reflected by the e-mail exchanges submitted
to the court, does not undercut the enforceability of
the agreement reached on October 19, 2018.’’
These facts, combined with the notice of election to
purchase shares that Alexander Leute filed with the
court, persuaded the trial court that ‘‘there was an
enforceable settlement agreement between the parties
as embodied in the memorandum of understanding,
and, if not enforceable at that stage, then final and
enforceable as modified by the subsequent negotiations
of the parties and embodied in the final version of the
formal settlement agreement drafted by the parties.
. . . [T]he case effectively was settled upon the signing
of the memorandum of understanding, with ongoing
negotiations being a process of permissible fine-tun-
ing.’’ The defendants have provided us with neither law
nor argument that persuades us that the court was
clearly erroneous in its factual findings or incorrect in
its legal conclusions.
In particular, the defendants’ principal argument that
the court ignored their communications, in which they
stressed the need for Alexander Leute to obtain financ-
ing to complete any settlement and, instead, relied
solely on the communications submitted by the plain-
tiffs, is without merit. As set forth previously in this
opinion, the court, in its memorandum of decision, dis-
cussed the communications submitted to it by both the
plaintiffs and the defendants. Furthermore, it acknowl-
edged that the defendants referenced Alexander Leute’s
pursuit of financing in a number of the communications.
What it refused to do, though, was infer from those
communications an unexpressed intent on the part of
the defendants that obtaining financing was a contin-
gency to any settlement. Our law is quite clear—unex-
pressed intent is not relevant. See Perruccio v. Allen,
156 Conn. 282, 285, 240 A.2d 912 (1968) (‘‘an unex-
pressed intent is of no significance’’); Rayhol Co. v.
Holland, 110 Conn. 516, 524, 148 A. 358 (1930) (‘‘if . . .
documents constitute a complete agreement, we cannot
regard any unexpressed intent but only that which in
them does find expression’’); Dunn v. Etzel, 166 Conn.
App. 386, 399, 141 A.3d 990 (2016) (‘‘the clear, unambig-
uous language of the release rendered immaterial the
plaintiff’s unexpressed subjective intent’’); see also 15A
C.J.S. Compromise and Settlement § 8 (2020 Rev.) (‘‘A
compromise agreement must be binding on both parties
so that an action may be maintained by either to enforce
it. The mutual assent requirement of a settlement agree-
ment cannot be defeated by the unexpressed subjective
intent of one of the parties . . . .’’ (Footnote omitted.)).
Consequently, what mattered to the court was what the
parties wrote in their settlement agreement, not what
they may have intended but never expressed. What they
actually wrote was clear.
On February 27, 2017, Alexander Leute filed with the
trial court a notice of election to purchase the plaintiffs’
shares to which no shareholder had an objection. On
October 19, 2018, the defendants signed the memoran-
dum of understanding, which provided that it contained
‘‘the essential terms of a settlement agreement between
the [plaintiffs] and the [defendants] that will form the
basis for a written agreement that will be prepared and
will elaborate in fuller detail on all the terms.’’ The
memorandum of understanding also contained the pay-
ment terms, which were to begin on December 6, 2018,
and provided for the transfer of ownership of the plain-
tiffs’ interests in the company. It contained no contin-
gency for financing. During negotiations of the final
settlement agreement, the defendants requested multi-
ple changes, most of which came in sporadically, but
all of which were addressed and reconciled by Attorney
Order. None of the requested changes concerned
inserting language regarding the ability of the defen-
dants to obtain financing as a contingency of the settle-
ment agreement. In a November 21, 2018 e-mail, Attor-
ney Order encouraged the defendants to have an
attorney review the documents, and stated that they
should do so soon so that they could remain on
schedule.
On November 26, 2018, after Attorney Order recon-
ciled all of the defendants’ requested changes and
e-mailed updated settlement documents to the defen-
dants, the defendants, in an e-mail sent at 10:47 a.m.,
stated that they had one additional small change they
wanted regarding the number of shares to be trans-
ferred and that they would sign the settlement agree-
ment documents and send them back ‘‘ASAP,’’ and for-
ward payment, after that change was made. This
particular communication was flatly inconsistent with
the defendants’ subsequent claim that their execution
of the agreement was contingent on obtaining financing.
Attorney Order made the requested change and, in an
e-mail sent at 1:23 p.m., also on November 26, 2018,
sent the final settlement agreement and all supporting
documents to the defendants for their signatures and
for Alexander Leute’s initial $150,000 payment. We
agree with the court’s conclusion that at that point there
was no question that the parties had reached a fully
enforceable settlement agreement.
These facts also dispose of the defendants’ argument
that the settlement agreement was ambiguous as to the
existence of a financing contingency. We fail to see
how an agreement that the defendants acknowledged
was final and ready for execution ‘‘ASAP’’ following
one last minor change can be ambiguous as to a term
not included in the agreement. There is nothing in the
settlement agreement that remotely suggests that it was
contingent on the defendants obtaining financing, and
we will not impute ambiguity into an agreement that
the defendants acknowledge is otherwise clear and
unambiguous. Accordingly, we conclude that the defen-
dants have failed to establish that the court improperly
enforced the settlement agreement, which consisted of
the signed memorandum of understanding as supple-
mented by the unsigned settlement document with
its attachments.
As to the defendants’ final argument that the court
improperly revised the settlement agreement by setting
forth new payment dates, we conclude that the adjust-
ments were necessary to implement the settlement
agreement because at least one of the payment dates
already had passed. Furthermore, the adjustments
clearly inure to the benefit of Alexander Leute by giving
him additional time to pay, rather than ordering him to
make up any and all of the missed payments imme-
diately.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The named defendant, Intense Movers, Inc., is not a party to this appeal.
Accordingly, all references to the defendants are to Alexander Leute and
William R. Leute III only.
2
The parties, without objection, also made many unsworn representations
of fact during the hearing. Unless those representations could be considered
concessions of the party making the assertion, we will not consider them
in this opinion. It does not appear that the trial court considered them in
its written memorandum of decision. See Federal National Mortgage Assn.
v. Buhl, 186 Conn. App. 743, 751, 201 A.3d 485 (2018) (‘‘Before testifying,
every witness shall be required to declare that the witness will testify truth-
fully, by oath or affirmation administered in a form calculated to awaken
the [witness’] conscience and impress the [witness’] mind with the duty to
do so. . . . Unsworn representations of counsel are not, legally speaking,
evidence upon which courts can rely.’’ (Citation omitted; internal quotation
marks omitted.)), cert. denied, 331 Conn. 906, 202 A.3d 1022 (2019); see
also Presidential Village, LLC v. Perkins, 332 Conn. 45, 53 n.9, 209 A.3d
616 (2019) (plaintiff bound by concession made during oral argument before
trial court); Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d
546 (1951) (‘‘[a] party is bound by a concession made during the trial by
his attorney’’).
3
General Statutes § 33-900 provides in relevant part: ‘‘(a) In a proceeding
under subdivision (1) of subsection (a) of section 33-896 to dissolve a
corporation, the corporation may elect or, if it fails to elect, one or more
shareholders may elect to purchase all shares owned by the petitioning
shareholder at the fair value of the shares. An election pursuant to this
section shall be irrevocable unless the court determines that it is equitable
to set aside or modify the election.
‘‘(b) An election to purchase pursuant to this section may be filed with
the court at any time within ninety days after the filing of the petition under
subdivision (1) of subsection (a) of section 33-896 or at such later time as
the court in its discretion may allow. If the election to purchase is filed by
one or more shareholders, the corporation shall, within ten days thereafter,
give written notice to all shareholders, other than the petitioner. The notice
must state the name and number of shares owned by the petitioner and the
name and number of shares owned by each electing shareholder and must
advise the recipients of their right to join in the election to purchase shares
in accordance with this section. Shareholders who wish to participate must
file notice of their intention to join in the purchase no later than thirty days
after the effective date of the notice to them. All shareholders who have
filed an election or notice of their intention to participate in the election
to purchase thereby become parties to ownership of shares as of the date
the first election was filed, unless they otherwise agree or the court otherwise
directs. After an election has been filed by the corporation or one or more
shareholders, the proceeding under subdivision (1) of subsection (a) of
section 33-896 may not be discontinued or settled, nor may the petitioning
shareholder sell or otherwise dispose of his shares, unless the court deter-
mines that it would be equitable to the corporation and the shareholders,
other than the petitioner, to permit such discontinuance, settlement, sale
or other disposition. . . .’’
4
The plaintiffs, thereafter, filed a motion with the trial court requesting
that it reconsider or allow reargument as to whether the court could and
should order the defendants to sign the settlement agreement and the docu-
ments attached to it. The court considered the motion but denied relief
stating that it did not believe that it had the authority to order the defendants
to sign the documents. It also stated that it believed that the judgment of
the court specifically enforcing the settlement agreement was sufficient.
The plaintiffs do not challenge that ruling on appeal.
5
During oral argument before this court, the defendants conceded that
the unsigned settlement agreement contained all material terms with the
exception of the purported financing contingency.
6
Copies of those e-mails, which were attached to William R. Leute III’s
reply to the plaintiffs’ supplemental affidavit in support of their motion
to enforce, were not supported by an affidavit. Additionally, the e-mails
demonstrate that Alexander Leute informed Attorney Order that he needed
more time to obtain financing and that he had ‘‘been working relentlessly
to raise the capital [needed] to settle this case.’’ The e-mails contain neither
a request nor a requirement that obtaining a certain type of financing be a
condition precedent to settlement.
7
The defendants also contend that the court improperly failed to find the
terms of the settlement oppressive or that they were agreed to under duress.
We have reviewed the defendants’ oppositions to the motion to enforce, in
which each of them separately argued only that their settlement agreement
was contingent on their obtaining financing, and we can ascertain no claim
of this nature raised in either of these memoranda. Furthermore, it is clear
that the court found the terms of the settlement agreement and Alexander
Leute’s notice of election to purchase shares to be fair and equitable.
8
The memorandum of understanding provides in part that it ‘‘outlines the
essential terms of a settlement agreement between [the plaintiffs and the
defendants] that will form the basis for a written agreement that will be
prepared and will elaborate in fuller detail on all the terms.’’ It also provides
that ‘‘[o]n or before December 6, 2018, [Alexander Leute] will pay the [plain-
tiffs] $150,000 . . . through check or wire transfer . . . . [Alexander
Leute] will also pay the [plaintiffs] an additional $325,000 . . . over time
. . . . On or before the 17th day of each month, beginning on January 17,
2019, and continuing until the [b]alance is paid in full, [Alexander Leute]
will begin paying the [b]alance with monthly payments of $4000 . . . auto-
matically deducted from the Intense Movers Bank of America account and
transferred to an account the [plaintiffs] will designate.’’ The memorandum
of understanding also sets forth additional payment and transfer terms, and
it provides that the parties would ‘‘submit the terms of the settlement to
the [c]ourt . . . for its approval pursuant to . . . § 33-900 (b).’’
9
The court’s memorandum of decision makes no reference to the unsworn
oral representations of Attorney Order and the defendants as to what
occurred during their settlement discussions. Thus, we conclude that the
court properly did not give any evidentiary weight to these representations,
and the parties do not argue otherwise.