Vance v. Tassmer
128 Conn. App. 101
| Conn. App. Ct. | 2011Background
- Plaintiffs seek declaratory judgment of adverse possession over a triangular parcel at 131 Cook Hill Rd, Wallingford; they purchased their lot in 1994.
- Defendants Tassmer and Perillo own adjacent property and Tassmer once conveyed 133 Cook Hill Rd; Perillo received an undivided half interest in 1999.
- On July 31, 2007, the parties settled, providing for defendants to apply for a variance by Nov 30, 2007 and, if not approved, to proceed to trial; other boundary-related steps were to follow.
- Defendants filed the variance application August 16, 2007; settlement was recorded September 14, 2007.
- Defendants moved to open the settlement on August 31, 2007 arguing duress; they withdrew the variance application November 26, 2007, before a board hearing.
- Audubon hearing conducted April 8, 2008 enforcing the agreement; November 18, 2009 memorandum held the variance provision waived and ordered conveyance of the described property to plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the settlement agreement was clear and enforceable summarily | Vance asserts § 1(e) unambiguous, enforceable without trial. | Tassmer argues § 1(e) is ambiguous if variance failure is a remedy. | Agreement was clear and summarily enforceable. |
| Whether the court improperly decided facts in enforcement | Vance contends factual findings supported by record. | Tassmer contends issues of causation/good faith require trial. | Court properly decided facts; waiver and good faith found based on evidence. |
| Whether the court rewrote the terms by conveying property | Vance argues enforcement should not extend beyond the original terms. | Tassmer contends court created a new remedy not in § 1(e). | Court exceeded scope by conveying property; remanded to render adverse possession judgment excluding § 1(e). |
| Whether waiver of § 1(e) was properly found | Vance contends defendants waived the variance provision by bad faith actions. | Tassmer disputes waiver and asserts good faith to pursue variance. | Waiver of § 1(e) supported; actions indicated failure to proceed in good faith. |
| Appropriate remedy after waiver of § 1(e) | If waiver found, judgment should enforce remaining terms and grant adverse possession. | Defendants seek to avoid other terms or a full transfer. | Remand with direction to grant adverse possession subject to remaining settlement terms. |
Key Cases Cited
- Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804 (1993) (authority for enforceability of settlement via Audubon procedure)
- Hogan v. Lagosz, 124 Conn. App. 602 (2010) (summary enforcement when terms are clear and unambiguous)
- Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495 (2010) (accord/enforcement of covenants in settlement contracts)
- Keller v. Beckenstein, 117 Conn. App. 550 (2009) (bad faith in contract performance; implied covenant of good faith)
- Nanni v. Dino Corp., 117 Conn. App. 61 (2009) (credibility assessment reserved to trial court; weighing of evidence)
- Michler v. Planning & Zoning Bd. of Appeals, 123 Conn. App. 182 (2010) (unique hardship as a condition precedent to variance)
- Janus Films, Inc. v. Miller, 801 F.2d 578 (2d Cir.1986) (relating to court's authority over settlement-based relief)
- Waldman v. Beck, 101 Conn. App. 669 (2007) (abuse of discretion review in settlement enforcement)
- Carpenter v. Montanaro, 52 Conn. App. 55 (1999) (equitable power to enforce judgments without contempt proceedings)