Wittman v. Intense Movers, Inc., AC 43027

• Decision Date: 05 January 2021
• Docket Number: AC 43027
• Citation: 245 A.3d 479,202 Conn.App. 87
• Court: Connecticut Court of Appeals
• Parties: Matthew WITTMAN et al. v. INTENSE MOVERS, INC., et al.

202 Conn.App. 87

245 A.3d 479

Matthew WITTMAN et al.

v.INTENSE MOVERS, INC., et al.

AC 43027

Appellate Court of Connecticut.

Argued October 15, 2020

Officially released January 5, 2021

William R. Leute III, self-represented, the appellant (defendant).

Alexander Leute, self-represented, the appellant (defendant).

Richard S. Order, with whom was Valerie M. Ferdon, Hartford, for the appellees (plaintiffs).

Bright, C. J., and Alvord and Oliver, Js.

BRIGHT, C. J.

The self-represented defendants, Alexander Leute and William R. Leute III,¹ appeal from the judgment of the trial court enforcing a signed memorandum of understanding as supplemented by an unsigned settlement document with its attachments (jointly, settlement 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 plaintiffs’ shares was a contingency of the settlement agreement. 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 memorandum 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 Alexander 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 memorandum of understanding resolving the primary issues of their dispute, which required in part that the defendant Alexander Leute make payments over time to the plaintiffs in exchange for receiving the plaintiffs’ shares in the company. The memorandum of understanding provided 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 parties negotiated the additional terms of the settlement agreement, the defendants repeatedly requested various 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 agreement, 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 memorandum 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 memorandum of understanding reached and signed by Attorney 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 settlement agreement with supporting documents that Attorney Order had negotiated with the defendants on behalf of the plaintiffs.

On January 3, 2019, Alexander Leute filed an objection 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 defendants never requested that receipt of a loan be a condition 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-represented. 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 summarily if parties reached agreement after commencing litigation); and it explained that the parties were allowed to present sworn testimony and evidence during 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 submissions 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 contingency 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 defendants 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 opinion. 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 frequently had requested new changes to the parties’ settlement 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 company 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...