Inland Wetlands and Watercourses Agency of City of Middleton v. Landmark Inv. Group, Inc., 14177

• Decision Date: 14 May 1991
• Docket Number: No. 14177,14177
• Citation: 590 A.2d 968,218 Conn. 703
• Court: Connecticut Supreme Court
• Parties: INLAND WETLANDS AND WATERCOURSES AGENCY OF the CITY OF MIDDLETOWN v. LANDMARK INVESTMENT GROUP, INC., et al.

Page 968

590 A.2d 968

218 Conn. 703

INLAND WETLANDS AND WATERCOURSES AGENCY OF the CITY OF MIDDLETOWN v. LANDMARK INVESTMENT GROUP, INC., et al.

No. 14177.

Supreme Court of Connecticut.

Argued Feb. 22.

Decided May 14, 1991.

Russell Lehman, Asst. City Atty., for appellant (plaintiff).

Jule A. Crawford, Middletown, for appellee (defendant South Farms of Middletown, Inc.).

Before SHEA, GLASS, COVELLO, HULL and BORDEN, JJ.

BORDEN, Justice.

The plaintiff, the inland wetlands and watercourses agency of the city of Middletown, appeals from the judgment of the trial court denying its motion to set aside a stipulated judgment entered into between it and the defendant South Farms of Middletown, Inc. ¹ We affirm.

The defendant is the owner of the Talcott Ridge subdivision located in Middletown. In November, 1989, the plaintiff issued a cease and desist order to the defendant for certain alleged violations of the Inland Wetlands and Watercourses Act; General Statutes §§ 22a-28 through 22a-45; at the subdivision. Thereafter, the plaintiff brought this action against the defendant for, inter alia, an injunction restraining the defendant from violating the cease and desist order. In connection therewith, the plaintiff secured an ex parte temporary injunction from the trial court, Higgins, J. The defendant then moved to dissolve the temporary injunction.

On December 4, 1989, the parties appeared before the trial court, Budney, J., in an attempt to settle their dispute. Both parties were aware that the state department of environmental protection (DEP) had been investigating the defendant's subdivision ² and it was important to both that the DEP agree to any settlement. The parties had prepared a written stipulation that purported to memorialize their settlement and the DEP's agreement thereto.

The stipulation recited, inter alia, that the plaintiff had sought an injunction to stop the further construction of roadways and other improvements on the defendant's property, that the defendant claimed that the injunction and cease and desist order were without merit, and that the DEP had investigated the project. The parties stipulated, inter alia, to the following provisions: that the case would be dismissed as against two of the defendants; see footnote 1, supra; because the remaining defendant South Farms of Middletown, Inc., was the real party in interest, and that the ex parte injunction would be dissolved. The defendant agreed to complete its construction in accordance with its original permit as modified by an attachment, "Exhibit A," that concerned a soil and erosion control plan.

The dispute in this case revolves around paragraphs four and five of the stipulation. The typewritten portion at the conclusion of paragraph four provides: "The Court shall retain continuing jurisdiction over this matter until the Complaint as originally filed in this matter is finally disposed of." That language is followed by the following handwritten language: "Nothing herein shall be construed to release South Farms of Middletown, Inc. from the requirements of The Water Pollution Control Act ( [General Statutes § ] 22a-416)." ³ Paragraph five provides in typewritten terms: "The State consents to such Permit and Plan as set forth in Exhibit A and agrees that this Court shall retain continuing jurisdiction over this matter as set forth above." The stipulation was signed by Attorney Michael F. Dowley on behalf of the defendant and by Attorney Timothy P. Lynch on behalf of the plaintiff. Although there was a typewritten entry for the consent of the DEP by its attorney, that entry was not signed.

The court indicated that it had before it the stipulation signed by Dowley and Lynch, and that "[t]he agreement also has certain revisions in writing." The court also expressed its understanding that the DEP, through its attorneys, had agreed to the stipulation, although not in writing, and elicited from Dowley and Lynch their assurance that they had secured that agreement. Dowley represented to the court that he had spoken on the telephone to assistant attorney general Richard Webb, who represented the DEP, ⁴ that Webb had reviewed a copy of the typewritten stipulation sent to him through telephonic facsimile (fax) technology, and that Webb had agreed to it with two additions, which Dowley had made. Dowley stated that one such addition was to paragraph four, namely, that the defendant was still subject to the Water Pollution Control Act, and that the other was to add certain language to Exhibit A. ⁵ Dowley concluded: "That is my agreement between the City of Middletown and my client. The [DEP] has indicated that they could attempt to bring an abatement order should they deem it necessary, but that's the agreement between myself and the City of Middletown." After eliciting from Lynch that Dowley's representations were accurate and that "everyone agrees to the stipulation," the court rendered judgment incorporating the provisions of the stipulation.

On April 2, 1990, the plaintiff filed this motion to set aside the judgment on the ground of mutual mistake of fact. The plaintiff claimed that the parties mistakenly believed that the DEP had agreed to the stipulation, that it had not in fact so agreed, and that the plaintiff would not have entered into the stipulation in the absence of that consent. After an evidentiary hearing, the court, Budney, J., found that there was no mutual mistake of fact, and denied the plaintiff's motion. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.

The plaintiff claims that the trial court should have granted its motion because: (1) the court's finding that there was no mutual mistake of fact was clearly erroneous; and (2) in the alternative, if the stipulation is read as the defendant has subsequently claimed, namely, that the plaintiff has ceded wetlands enforcement powers to the jurisdiction of the Superior Court, the stipulation is contrary to public policy. We reject the plaintiff's first claim, and conclude that the second claim is not properly before us.

A judgment rendered upon a stipulation of the parties is in the nature of a contract and may be opened by the court if the stipulation was entered into by mutual mistake. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); see also O'Leary v. Industrial Park Corporation, 211 Conn. 648, 652-53 [218 Conn. 708] n. 2, 560 A.2d 968 (1989). A mutual mistake is one that is common to both parties and effects a result that neither intended. Lopinto v. Haines, 185 Conn. 527, 532, 441 A.2d 151 (1981). Whether there has been such mistake is a question of fact. See McWilliams v. American Fidelity Co., 140 Conn. 572, 579, 102 A.2d 345 (1954); see also Weld v. Melly, 16 Conn.App. 555, 557-58, 548 A.2d 14 (1988).

A finding of fact is clearly erroneous when there is no evidence in the record to support it; Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987); 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.' " Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings. Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990).

There was no dispute that both Dowley, representing the defendant, and Lynch, representing the plaintiff, believed that the DEP had agreed to the stipulation. That common belief was based on several telephone conversations on December 4, 1989, and accompanying fax transmissions among Dowley, Lynch, Webb and Marla Butts, a senior environmental analyst at the DEP who had been investigating the defendant's subdivision project. The plaintiff claimed in the trial court, however, that this common belief was mistaken because the DEP had not in fact agreed to the provision in paragraph five of the stipulation that the court would retain continuing jurisdiction over the matter. According to the plaintiff, that provision permitted the inference that the DEP had ceded its administrative enforcement powers over the Water Pollution Control Act to the court, despite the handwritten language in paragraph four that "[n]othing herein shall be construed to release [the defendant] from the requirements of" that Act, and the DEP had not agreed to such a provision.

Webb testified that he represented the DEP, and that on December 4, 1989, he had a telephone conversation with Dowley in connection with a typewritten stipulation that had been faxed to Butts, who had brought it to his attention. He was aware that the parties were having settlement discussions. He further testified that he expressed to Dowley his concern with paragraph five of the stipulation, wherein "the State consented to [the] Court retaining jurisdiction" because "the DEP has its own enforcement statutes, and since it was not a party to this action, did not want to consent away, through this stipulated agreement, any enforcement ... powers it might have" in the event the settlement did not resolve all problems to the DEP's satisfaction. He testified further that he told Dowley that he "wanted language that indicated quite clearly that, the DEP was able to enforce pursuant to the State Water Pollution Control Statute." Webb also testified that he did not receive a copy of the stipulation, as ultimately approved with the handwritten additions thereto, until December 7, 1989, and that he then informed Dowley that he had not agreed to the stipulation as ultimately approved.

Webb testified further that on December 4, 1989, he had suggested an insertion to the stipulation to the effect that the...