ACKERMAN v. SOBOL FAMILY PARTNERSHIP, LLP

As previously noted, the second prong of the test set forth in Tomlinson requires evidence that "the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Internal quotation marks omitted.) Tomlinson v. Board of Education, supra, 226 Conn. 734-35; see also Quint v. O'Connell, supra, 89 Conn. 357. In the present case, it is undisputed that Coe represented all of the plaintiffs when he rejected the defendants' written settlement offer and when he made the counteroffer to the defendants in his letter of June 16. Thereafter, the plaintiffs gave no notice to the defendants or their counsel that Coe no longer had authority to continue settlement negotiations or to make settlement offers on their behalf. Rather, Rena Ackerman was seen conferring with Coe at a court proceeding in late June and at the depositions on July 1, when settlement negotiations intensified. Thus, simply on the basis of this course of dealing among the parties, the defendants reasonably could have believed that Coe continued to have authority to discuss settlement terms and to make settlement offers during the middle and latter part of June.

To the extent that the defendants did not have a reasonable belief that Coe had apparent authority to bind the plaintiffs, they testified at the hearing to enforce the settlement agreement that they not only had queried Coe repeatedly on June 26 and 27, to obtain such assurances, but that Coe had answered their questions plainly and directly and told them at various times throughout the negotiations whether he did or did not have such authority. Schneider specifically testified that Coe had told him earlier in the month that he did not have a firm number in mind on which to base a settlement offer but that he would get back to Schneider when he had such a figure. Several days later, on or about June 26, Coe and Schneider continued discussing settlement terms, and Coe stated that he hoped to have a number later that afternoon. After Schneider returned to his Bank of America office, Coe telephoned at approximately 4 p.m. to inform him that the settlement number was $1.2 million. When Schneider pressed him for a lower number, Coe responded that $1.1 million would be acceptable but that he had no room to maneuver below that amount. He also assured Schneider that he was acting on behalf of all of the plaintiffs in the cases in which the Bank of America was a party. On the basis of these conversations, Schnieder thus reasonably believed that Coe had authority to settle the litigation for the financial terms they had discussed during the last days of June.

Wyld gave similar testimony. He stated that he had met with Coe on June 24, after a deposition at his offices and that the two had engaged in an extended conversation during which Coe had outlined the possible terms of a settlement. Wyld told Coe that he believed the approach had a prospect of success with his clients, the Sobol defendants, and urged Coe to obtain the authority he needed to make an official proposal. Wyld testified that it was clear to him that Coe did not have authority to make a formal offer at that time and would be required to go back to his clients, and that he, Wyld, had told Coe that he would not discuss the matter with his own clients until Coe had secured the necessary authority.

Wyld subsequently attended a court proceeding on June 25, where he saw Rena Ackerman with her attorneys. Late in the afternoon on June 26, Coe telephoned Wyld to continue their discussion of two days earlier. Wyld testified that it was implicit that Coe had spoken with his client and obtained the necessary authority to make a formal settlement offer because he and Coe had parted on June 24, with the understanding that they would not speak further until he had obtained such authorization. At the end of their conversation, Wyld told Coe that he also wanted assurances that the Bank of America would fund its portion of the settlement because it was clearly intended to be global, and Wyld encouraged Coe to speak with Schneider. Wyld himself telephoned Schneider after his conversation with Coe and learned that Coe had spoken with Schneider.

On June 27, discussions among Coe, Wyld and Schneider continued. Wyld testified that he had telephoned Coe late in the day "to pin [him] down" concerning the terms relating to the Sobol defendants because the Bank of America discussions appeared to be progressing, and Wyld had wanted to make sure that there was no misunderstanding as to the settlement terms or Coe's authority to settle. Wyld emphasized that he wanted to confirm "very precisely and very directly" that Coe had authority to make the offer, and that Coe had confirmed that he had the necessary authority. Wyld subsequently reiterated that he believed Coe had authority to represent both Rena Ackerman and Horan's clients, Rakoszynski and Mann, at that time, because the global settlement proposal included terms affecting all of their interests and Wyld had questioned Coe specifically on that subject. Coe then testified that he did not dispute Wyld's testimony and that it was not unreasonable for Wyld to have relied on Coe's clear assurances that he had the required authority to make the global settlement offer. Accordingly, Wyld, like Schneider, also reasonably believed that Coe had authority to settle the litigation at the end of June, not only because Coe had been acting on behalf of all of the plaintiffs since May 29, but also because Coe had assured Wyld that he had such authority. See 1 Restatement (Second), Agency, supra, § 27, comment (a), p. 104 (apparent authority may be conveyed to third person by authorized statements of agent).

Wyld and Schneider were further justified in believing that Coe's statements were authorized because, as previously noted, Connecticut attorneys are required to conduct their professional affairs in accordance with the Rules of Professional Conduct. Accordingly, Wyld and Schneider reasonably relied on Coe's repeated assurances that he had secured the plaintiffs' consent to the terms of the global settlement offer because, to borrow the plaintiffs' own language, an attorney with Coe's "abundance of experience and exemplary reputation" never would have misrepresented his authority in such a matter in violation of the rules. Coe's assurances were even more authentic in light of his occasional admissions that he did not have authority to agree to certain settlement figures at various times during the final settlement negotiations. To the extent that the plaintiffs now claim that Coe was not authorized to settle the litigation for the terms incorporated in the final agreement, they confuse their clear manifestations of authority with Coe's conceded misunderstanding of their position, a fact of significance, but one that cannot be allowed to affect our conclusion that Coe nonetheless had apparent authority to settle the claim, regardless of whether he misunderstood their thinking or properly exercised that authority. Consequently, given the circumstances in the present case, namely, that Coe and the plaintiffs were in an attorney-client relationship subject to the expectations that normally apply to attorneys involved in complex negotiations with other attorneys, we conclude that the evidence was sufficient to support the trial court's conclusion as to Coe's apparent authority under the second prong of Tomlinson v. Board of Education, supra, 226 Conn. 734-35.

The plaintiffs argue that our decision in this case should be governed by Makins v. District of Columbia, 861 A.2d 590, 595-97 (D.C. Cir. 2004), in which the District of Columbia Court of Appeals held that the plaintiff's attorney did not have apparent authority to settle the parties' dispute. In Makins, the District Court ordered that the parties' lead attorneys appear for a settlement conference and that the parties themselves either attend the conference or be available by telephone for its duration. Id., 592. The plaintiff was not present at the conference and her attorney negotiated a settlement. Id. After the negotiations, the plaintiff's attorney left the conference room carrying his cellular telephone, apparently to contact the plaintiff. Id. Upon his return, the attorneys "`shook hands'" on the settlement agreement and put it in writing, but the plaintiff refused to sign the agreement several days later. Id.

At the evidentiary hearing on the defendant's motion to enforce the agreement, the plaintiff and her attorney gave conflicting testimony as to whether the attorney had authority to settle the issue. Id. Instead of resolving this factual dispute, however, the District Court assumed that the attorney did not have actual authority and granted the motion to enforce the settlement agreement on the alternative ground that the attorney had apparent authority to bind the plaintiff. Id., 592-93. On appeal, the District of Columbia Court of Appeals rendered its decision on narrow grounds and determined that the two client manifestations contained in the certified question, which consisted of sending the attorney to the court-ordered settlement conference and permitting the attorney to negotiate on the client's behalf, were insufficient to support a reasonable belief by the defendant that the attorney had authority to settle the case. Id., 596. The court determined that "[s]ome additional manifestation by [the plaintiff]" was necessary to establish that she had given her attorney final settlement authority and that the defendant had pointed only to actions and representations by the plaintiffs attorney, and not by the plaintiff herself, as support for the reasonableness of its belief. Id. Makins is unlike the present case because, here, the parties were engaged in a course of dealing over an extended period of time during which the plaintiffs and Coe, as previously described, clearly demonstrated by their conduct that the defendants reasonably could have believed that Coe had authority to reach a settlement agreement on behalf of all of the plaintiffs.

Insofar as the plaintiffs claim that it was unreasonable for the defendants to believe that, because the oral agreement was not in writing, it was not fully authorized, we disagree. The trial court correctly noted that "the fact that an oral agreement was later to be memorialized in writing does not make it any less enforceable." See Nanni v. Dino Corp., 117 Conn. App. 61, 67, 978 A.2d 531 (2009) (fact that settlement agreement was not reduced to writing or signed by parties does not preclude agreement from binding parties if terms are clear and unambiguous); Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, 98 Conn. App. 234, 239, 907 A.2d 1274 (2006) ("settlement in principle on entire matter" bound parties to terms, even though unsigned, if assent was otherwise indicated); Sicaras v. Hartford, 44 Conn. App. 771, 778, 692 A.2d 1290 (parties bound to terms of unsigned contract if assent was otherwise indicated), cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). Thus, trial courts in Connecticut have declared repeatedly that a valid settlement agreement need not be in writing and that oral settlement agreements are enforceable; see, e.g., Montgomery v. Smith, 40 Conn. Sup. 358, 361, 499 A.2d 444 (1985); Cyr v. Switzer, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-96-563599 (July 13, 1998); White v. Branchini, Superior Court, judicial district of New Haven at New Haven, Docket No. 377336 (March 1, 1996); as have the courts of other jurisdictions. See Dillard v. Starcon International, Inc., 483 F.3d 502, 506 (7th Cir. 2007); Chaganti Associates, P.C. v. Nowotny, 470 F.3d 1215, 1221-23 (8th Cir. 2006); Quint v. A.E. Staley Mfg. Co., 246 F.3d 11, 15 (1st Cir. 2001), cert. denied, 535 U.S. 1023, 122 S. Ct. 1618, 152 L. Ed. 2d 631 (2002). We thus conclude that the trial court's finding that Coe had apparent authority to settle the litigation is supported by the evidence and is legally correct, and, accordingly, that the plaintiffs' claim that the settlement agreement is unenforceable under Tomlinson v. Board of Education, supra, 226 Conn. 734-35, has no merit.

The plaintiffs also seek review under state v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine of their unpreserved claim that they had a constitutional right to a jury trial on the factual question of whether there was a settlement. The plaintiffs claim that the parties were engaged in the process of selecting a jury when the trial court improperly found facts and rendered the judgment that the settlement agreement was enforceable. They claim that enforcement of the purported settlement agreement extinguished their legal and equitable claims, that they timely asserted their right to a trial by a jury, that they did not choose a forum in which there would be no opportunity for a jury trial and that they did not waive their right to a jury trial by their silence. They further claim that plain error review is required to avoid the manifest injustice of being inadvertently deprived of their fundamental right to a jury trial. The defendants respond that the plaintiffs had no right to a jury trial on the settlement enforcement proceeding because the proceeding was legally distinct from the underlying claims, the plaintiffs did not ask for a jury, and the record is inadequate for review. The defendants also argue that a settlement agreement is a contract among the parties and that there is no right to a jury trial on a motion to enforce a settlement agreement because a claim of specific performance invokes the trial court's equitable powers. We agree with the defendants that the plaintiffs had no constitutional right to a jury trial on the defendants' motions to enforce the settlement agreement and, accordingly, the defendants' claim must fail under both Golding and the plain error doctrine.

Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." State v. Golding, supra, 213 Conn. 239-40. "The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial." (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 90, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

In the present case, the record is adequate for review and the plaintiffs' claim is of constitutional magnitude alleging the violation of a fundamental right. We conclude, however, that the claim must fail under the third prong of Golding.

Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: "The right of trial by jury shall remain inviolate. . . ." The provision "guarantees the right to a jury trial in all cases for which such a right existed at the time of the adoption of that constitutional provision in 1818." (Internal quotation marks omitted.) L R Realty v. Connecticut National Bank, 246 Conn. 1, 9, 715 A.2d 748 (1998). The fundamental right to a jury trial, however, is subject to certain limitations. Id. One limitation is that the right does not extend to equitable claims. Franchi v. Farmholme, Inc., 191 Conn. 201,210, 464 A.2d 35 (1983). "Our case law has spoken to the resolution of factual issues in the context of actions essentially equitable or essentially cognizable at law . . . [and we have stated that] [w]here incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers." (Citation omitted; internal quotation marks omitted.) Id. "[T]he true test of a right to a jury trial is whether the cause of action stated (rather than merely the relief claimed) is essentially legal as distinguished from essentially equitable." (Internal quotation marks omitted.) Id., 211.

The cause of action in the present case involves enforcement of a settlement agreement. A settlement agreement, or accord, is a contract among the parties. Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs, Inc., supra, 225 Conn. 809; id. ("An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty. Performance of the accord discharges the original duty." [Internal quotation marks omitted.]); see also 2 Restatement (Second), Contracts § 281, p. 382 (1981). Under the law of contracts, we have stated that when a contract is breached by the obligee, "the obligor may maintain a suit for specific performance of the accord, in addition to any claim for damages for partial breach." (Internal quotation marks omitted.) Tolland Enterprises v. Scan-Code, Inc., 239 Conn. 326, 334, 684 A.2d 1150 (1996), quoting 2 Restatement (Second), Contracts, supra, § 281 (3), p. 382; see also Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs, Inc., supra, 809 (" [i]f there is a breach of the accord, the obligee has the option of either seeking enforcement of the original duty or seeking enforcement of any obligation under the accord"). It is well established that an action for specific performance invokes the equitable powers vested in the trial court. Natural Harmony, Inc. v. Normand, 211 Conn. 145, 149, 558 A.2d 231 (1989); 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 457 ("where the specific execution of a personal contract, is necessary to do essential justice, and answer the substantial intent of the parties; courts of equity will decree the agreement specifically"); 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 16 ("courts of equity have the power to decree the specific execution of agreements"). This court has also recognized that where the remedy is equitable, there is no right to a jury trial. See Bender v. Bender, 292 Conn. 696, 714, 975 A.2d 636 (2009) (no right to jury trial in action for specific performance); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 212 Conn. 83, 91, 561 A.2d 917 (1989) (same); Texaco, Inc. v. Golart, 206 Conn. 454, 458, 538 A.2d 1017 (1988) ("[i]t is well settled that the right to a jury trial under article first, § 19, of the Connecticut constitution, as amended, does not include a right to a jury trial in an equitable action"). Thus, "[a] trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous. . . . 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.

"Summary enforcement is not only essential to the efficient use of judicial resources, but also preserves the integrity of settlement as a meaningful way to resolve legal disputes. When parties agree to settle a case, they are effectively contracting for the right to avoid a trial." (Citations omitted; internal quotation marks omitted.) Audubon Parking Associates Ltd. Partnership v. Barclay Stubbs, Inc., supra, 225 Conn. 811-12.

Consistent with the foregoing principles, many state and federal courts have denied claims for a jury trial when parties seek the specific enforcement of settlement agreements. See Ford v. Citizens Southern National Bank, 928 F.2d 1118, 1122 (11th Cir. 1991) ("purely equitable claims, even those involving factual disputes, are matters to be resolved by the court rather than a jury"); Adams v. Johns-Manville Corp., 876 F.2d 702, 709-10 (9th Cir. 1989) (motion to enforce settlement agreement does not give rise to right to jury trial); Warner v. Rossignol, 513 F.2d 678, 683-84 (1st Cir. 1975) (no right to jury trial for claim for specific performance of settlement agreement); Calabi v. Government Employees Ins. Co., 353 Md. 649, 653-56, 728 A.2d 206 (1999) (no constitutional right to jury trial for proceedings in equity); McDowell Welding Pipefitting, Inc. v. United States Gypsum Co., 345 Or. 272, 278-87, 193 P.3d 9 (2008) (rejecting state constitutional claim for jury trial on settlement enforcement proceeding).

We thus conclude that the plaintiffs' claim must fail under Golding's third prong because they had no right to a jury trial on issues raised in connection with enforcement of the settlement agreement. Even if certain factual matters were disputed, the motion to enforce was essentially equitable in nature and, consequently, the court was entitled to use its equitable powers to resolve the dispute without a jury.

The plaintiffs rely on two cases from other jurisdictions in maintaining that they have a right to a jury trial. In Turner v. Burlington Northern Railroad Co., 771 F.2d 341, 342-13 (8th Cir. 1985), in which the defendant, a railroad machinist, sought specific performance of an alleged settlement agreement, the United States Court of Appeals for the Eighth Circuit noted that "[a]n action for specific performance without a claim for damages is purely equitable and historically has . . . been tried to the court," but rejected the defendant's claim that the enforcement action in that case should be resolved by the court. The 8th Circuit further observed that "[t]he seventh amendment, guaranteeing the right to jury trials, does not bar Congress or the Supreme Court from expanding the right to jury trials to cases which were traditionally tried to the court" and that "Congress has on rare occasions extended this right in this manner." Id., 343. The court explained, however, that in cases like the one before it, which had been brought under the Federal Employers' Liability Act (liability act), 45 U.S.C. § 51 et seq. (1982), the United States Supreme Court had emphasized repeatedly that Congress intended that actions brought under the liability act would be tried to a jury. Id., 344. The court stated that the right to a trial by jury is "part and parcel of the remedy afforded railroad workers under the [liability act]," and that "to deprive railroad workers of the benefit of a jury trial . . . is to take away a goodly portion of the relief which Congress has afforded them." (Internal quotation marks omitted.) Id. Accordingly, the Eighth Circuit, relying on Congressional authority, rejected the defendant's claim. Id., 345. In the present case, there being no similar statutory authority for a jury trial, the plaintiffs' reliance on Turner is misplaced because that case is factually and legally distinguishable.

Hays v. Monticello Retirement Estates, LLC, 192 P.3d 1279 (Okla. Civ. App. 2008), is also inapposite. In Hays, the trial court sustained the defendants' motion to enforce a written settlement agreement that had been negotiated by the parties' attorneys, but that the plaintiff had refused to sign. Id., 1280-81. On appeal, the reviewing court relied on Oklahoma case law stating that "[a] motion to enforce a settlement agreement is treated as a motion for summary judgment" and that "whether a settlement agreement has been reached . . . may be a question for the jury." Id., 1281. After noting that a substantial dispute existed as to whether the plaintiff had given her attorney authority to settle the matter without her consent, the court summarily stated that "[w]hen material facts are in dispute, summary judgments or orders to enforce settlement agreements may not be granted." Id. The court thus concluded that, because the material facts in Hays were in dispute, the trial court improperly had granted the motion to enforce the agreement, and it reversed and remanded the case for further proceedings. Id., 1282.

Hays is clearly irrelevant in the present circumstances because Oklahoma law governing settlement agreements differs in significant respects from Connecticut law, which does not treat motions to enforce settlement agreements like summary judgment motions but, rather, as equitable claims subject to resolution by the court. Accordingly, the unique posture Oklahoma has adopted in such matters is inapplicable in the context of Connecticut law.

The plaintiffs finally seek review under the plain error doctrine, which is codified at Practice Book § 60-5.They claim that there was manifest injustice in the fact that they were deprived of their fundamental right to a jury trial because, in the absence of a canvass of all of the parties by the trial court or a signed settlement document, there were material questions of fact as to whether they had apparently authorized the settlement. In light of our conclusion that the plaintiffs had no right to a jury trial on their equitable claim for specific enforcement of the settlement agreement; see part II A of this opinion; we reject this claim.

The judgment is affirmed.

In this opinion the other justices concurred.