Krasko v. Konkos

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Krasko v. Konkos

ROBERT J. KRASKO ET AL. v.
ROBERT KONKOS ET AL.
(AC 45875)
Elgo, Moll and Suarez, Js.

Syllabus

The plaintiffs, owners of certain real property in Easton that is benefitted
by a right-of-way easement over the defendants’ neighboring property,
sought, inter alia, a mandatory injunction requiring the defendants to
consent to the removal of a utility pole that provided electrical services
to the defendants’ property and obstructed the easement and to upgrade
the electrical connection between the defendants’ house and a new
utility pole that had been erected on the plaintiffs’ property so that the
connection complied with the building code then in effect. Prior to the
commencement of trial, the attorneys for the parties attended a pretrial
conference before the trial court. Thereafter, pursuant to Audubon Park-
ing Associates Ltd. Partnership v. Barclay & Stubbs, Inc. (225 Conn.
804), the plaintiffs filed a motion to enforce a settlement agreement that
they claimed the parties had entered into at the pretrial conference. In
their motion, the plaintiffs asserted that the parties had discussed and
orally agreed on the location of an underground conduit for the defen-
dants’ new electrical service at the pretrial conference and that, subse-
quently, the defendants refused to allow the plaintiffs to perform the
work that was agreed on or to implement the settlement agreement.
The plaintiffs attached an exhibit to their motion, which they drafted
after the pretrial conference to outline the terms of the parties’ alleged
agreement. The defendants objected to the plaintiffs’ motion, asserting
that, although the parties had attempted to reach an agreement at the
pretrial conference, they never did so, as they failed to reach a consensus
regarding the location and scope of the expected work and the length
of time it would take. Following a remote status conference, the trial
court went on the record to hear arguments from the parties’ counsel
and then incorporated the additional terms that were discussed by the
defendants’ counsel into the settlement agreement as it was outlined in
the exhibit. The defendants’ counsel discussed the modified settlement
agreement with the defendants during a short recess and then informed
the trial court that the defendants did not consider the modified settle-
ment agreement to be agreeable. Thereafter, the trial court granted the
plaintiffs’ motion to enforce the settlement agreement, subject to the
terms and conditions of the exhibit, as modified by the court and
reflected in the transcript of that day’s proceeding. On the defendants’
appeal to this court, held that the trial court abused its discretion in
granting the plaintiffs’ motion to enforce a settlement agreement because
the parties did not reach a clear and unambiguous agreement either at
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Krasko v. Konkos
or following the pretrial conference: the trial court treated the exhibit
as an agreement binding on the parties despite the fact that there was
nothing in the record, beyond the plaintiffs’ reliance on the exhibit, to
demonstrate that an agreement had been reached, the agreement was
unsworn, and the defendants repeatedly disputed that they had entered
into the agreement; moreover, even if the trial court had assumed that
the exhibit memorialized an agreement between the parties, when faced
with numerous issues concerning the adequacy of the agreement and
after acknowledging that a material term of the settlement was not
agreed on, the court failed to hold an Audubon hearing to determine
whether the parties had a clear and unambiguous agreement and,
instead, issued an order granting the plaintiffs’ motion subject to the
terms and conditions as modified by the court; accordingly, this court
reversed the judgment of the trial court and remanded the case with
direction to deny the plaintiffs’ motion to enforce the settlement agree-
ment.

Argued October 3, 2023—officially released April 9, 2024

Procedural History

Action seeking, inter alia, an injunction requiring the
named defendant et al. to consent to the relocation of
a utility pole that obstructed the plaintiffs’ easement,
and for other relief, brought to the Superior Court in the
judicial district of Fairfield, where the court, Stevens,
J., granted the plaintiffs’ motion to cite in Frontier Com-
munications Corporation et al. as party defendants;
thereafter, the court, Hon. Dale W. Radcliffe, judge trial
referee, granted the plaintiffs’ motion to cite in Owned
Wealth, LLC, et al. as party defendants; subsequently,
the plaintiffs withdrew their complaint against the
defendant Margaret Mary Kane; thereafter, the court,
Hon. Dale W. Radcliffe, judge trial referee, granted the
plaintiffs’ motion to enforce a settlement agreement,
and the named defendant et al. appealed to this court.
Reversed; judgment directed.

Prerna Rao, for the appellants (named defendant
et al.).
Alan R. Spirer, for the appellees (plaintiffs).
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Krasko v. Konkos

Opinion

SUAREZ, J. The defendants Robert Konkos and Chel-
sea Konkos (collectively, Konkos defendants); 105 Hon-
eysuckle Trust, dated March 9, 2021, Owned Wealth,
LLC, as trustee; and Owned Wealth, LLC,1 appeal from
the judgment of the trial court granting a motion
brought by the plaintiffs, Robert J. Krasko and Francis
L. O’Neill, to enforce a settlement agreement allegedly
entered into between the parties at a pretrial confer-
ence. On appeal, the defendants claim that the trial
court erred in granting the plaintiffs’ motion to enforce
in the absence of a clear and unambiguous agreement.
We reverse the judgment of the court.

The following procedural history and undisputed
facts are relevant to the resolution of this appeal. The
plaintiffs are the owners of real property located in
Easton (plaintiffs’ property). The defendant Owned
Wealth, LLC, as trustee, is the legal owner of the abut-
ting property (defendants’ property). See footnote 1 of
this opinion.
1
The plaintiffs initially commenced the underlying action against only the
Konkos defendants. On January 22, 2020, the plaintiffs moved to cite in Frontier
Communications Corporation (Frontier) and Margaret Mary Kane as defendants
in the underlying action. On February 3, 2020, the court, Stevens, J., granted the
plaintiffs’ motions and added Frontier and Kane as defendants to the underlying
action. On July 6, 2022, the plaintiffs moved to cite in 105 Honeysuckle Trust,
dated March 9, 2021, Owned Wealth, LLC, as trustee, and Owned Wealth, LLC,
as additional defendants. In their motion to cite in additional party defendants,
the plaintiffs represented that, ‘‘[o]n January 27, 2022, [the Konkos defendants]
transferred title to [their premises] . . . to 105 Honeysuckle Trust, dated March
9, 2021, Owned Wealth, LLC, as trustee . . . . Although the record owner of
the premises is now 105 Honeysuckle Trust, dated March 9, 2021, Owned
Wealth, LLC, as trustee . . . [the Konkos defendants] are the beneficial owners
of and exercise dominion and control over the premises.’’ On July 18, 2022,
the court, Hon. Dale W. Radcliffe, judge trial referee, granted the plaintiffs’
motion. On September 20, 2022, the plaintiffs withdrew their complaint against
Kane. Frontier and Kane are not participating in this appeal. The remaining
defendants are all represented by the same counsel. We hereinafter will refer
to the remaining defendants collectively as the defendants.
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Margaret Mary Kane, a home construction contractor,
was the original owner of the plaintiffs’ property. Kane
filed a proposed site plan, dated December 16, 2015,
with the town of Easton for the construction of the
plaintiffs’ home. In the site plan, Kane specified that a
utility pole existing on the plaintiffs’ driveway would
be removed and relocated. On December 29, 2015, an
easement, benefiting the plaintiffs’ property and bur-
dening the defendants’ property, was set forth in an
Easement and Mutual Driveway Agreement and recorded
in the Easton land records (easement). The easement
granted the plaintiffs’ property a perpetual twenty-five
foot right-of-way over the defendants’ property. The
plaintiffs’ driveway and the utility pole are located within
this right-of-way easement. Frontier Communications
Corporation (Frontier), which owns and maintains the
utility pole, subsequently erected a new utility pole on
the plaintiffs’ property in accordance with the site plan.
The original utility pole located on the plaintiffs’ drive-
way, however, was never removed and currently is
being used to provide electrical services to the defen-
dants’ property. On August 9, 2018, Kane entered into
a written contract with the plaintiffs for the purchase
and sale of the plaintiffs’ property.
The plaintiffs commenced the present action on
August 9, 2019. In their amended complaint, dated July
18, 2022, the plaintiffs alleged that they ‘‘have a perpet-
ual easement over, under, and across a twenty-five . . .
foot right-of-way to the plaintiffs’ [property] and which
easement burdens the defendants’ [property] as set
forth in [the easement]. . . . [Frontier] owns an over-
lapping easement to maintain utility poles . . . . The
plaintiffs’ ability to use the easement is obstructed by
the location of a utility pole owned and maintained by
Frontier and located within the right-of-way that is the
subject of the easement. . . . The removal of the old
utility pole, which obstructs the plaintiffs’ driveway,
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requires that electrical service to the defendants’ house
be transferred from the old [utility] pole to the new
utility pole. . . . The foregoing transfer of the electri-
cal service requires that the defendants upgrade their
electrical connection between the new utility pole and
[the defendants’] house to comply with the building
code currently in force and effect. . . . The defendants
have failed and refused to upgrade their electrical con-
nection to comply with the building code currently in
effect. . . . Despite due demand, the defendants have
failed and refused to consent to allowing Frontier to
relocate the said utility pole and have refused to
upgrade their electrical connection as required. . . .
As a result of the actions of the defendants . . . the
plaintiffs have been prevented from enjoying and using
the easement.’’ In their prayer for relief, the plaintiffs
sought (1) a mandatory injunction requiring the Konkos
defendants to consent to the removal of the utility pole
that obstructs the easement, (2) a mandatory injunction
requiring the Konkos defendants to upgrade their elec-
trical connection between their house and the utility
pole so that the electrical connection complies with the
current building code, and (3) such other relief to which
the plaintiffs may be entitled. On September 4, 2019,
the Konkos defendants, who were self-represented liti-
gants at that time but subsequently were represented
by counsel, filed answers and what they characterized
as special defenses. Beyond disputing several of the
factual allegations in the complaint, they alleged what
they considered to be numerous obstacles that made the
relief sought by the plaintiffs not feasible at that time.
A bench trial was scheduled for September 22, 2022.
On August 18, 2022, the attorneys for the parties
attended a remote pretrial conference held before the
court, Hon. Dale W. Radcliffe, judge trial referee.2 On
2
The attorneys for the parties participated in the August 18, 2022 pretrial
conference; the parties, themselves, were available by telephone.
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September 15, 2022, just seven days before the date
on which the trial was scheduled to commence, the
plaintiffs filed, pursuant to Audubon Parking Associ-
ates Ltd. Partnership v. Barclay & Stubbs, Inc., 225
Conn. 804, 812, 626 A.2d 729 (1993) (Audubon),3 a
motion to enforce a settlement agreement that they
claimed the parties entered into at the August 18, 2022
pretrial conference. The plaintiffs did not represent in
their motion, however, that the purported agreement
had been reduced to writing or articulated on the
record. Instead, the plaintiffs stated that the parties had
discussed and agreed on the location of an underground
conduit for the defendants’ new electrical service. Spe-
cifically, the plaintiffs asserted that the defendants ini-
tially ‘‘wanted the conduit to be located under their
driveway.’’ They further asserted that, at the pretrial
conference, the defendants ‘‘agreed that the conduit
would be installed by crossing the driveway and would
be located exclusively in the lawn areas of their prop-
erty.’’ Attached to their motion, the plaintiffs submitted
an exhibit (exhibit A), which they drafted after the
pretrial conference to outline the terms of the parties’
agreement.4 Last, the plaintiffs represented in their
3
‘‘In Audubon, our Supreme Court shaped a procedure by which a trial court
could summarily enforce a settlement agreement to settle litigation. . . . The
court held that a trial court may summarily enforce a settlement agreement
within the framework of the original lawsuit as a matter of law when the parties
do not dispute the terms of the agreement. . . . [S]ee also Reiner v. Reiner,
190 Conn. App. 268, 270 n.3, 210 A.3d 668 (2019) ([a] hearing pursuant to
Audubon . . . is conducted to decide whether the terms of a settlement agree-
ment are sufficiently clear and unambiguous so as to be enforceable as a matter
of law . . . ).’’ (Citation omitted; internal quotation marks omitted.) Doe v.
Bemer, 215 Conn. App. 504, 523, 283 A.3d 1074 (2022).
4
Exhibit A, which is unsigned and titled ‘‘Settlement Agreement re: Krasko
vs. Konkos,’’ states in relevant part: ‘‘The plaintiffs and the defendants accept
Judge Radcliffe’s settlement recommendations as follows:
‘‘(1) The plaintiffs, at [their] expense, will expeditiously undertake the follow-
ing actions to enable [Frontier] to remove a utility pole which obstructs the
plaintiffs’ use of a right-of-way shared by the plaintiffs and the defendants . . .
and allow the plaintiffs and the . . . defendants to utilize a new utility pole
(already in place): (a) Engage a reasonable contractor to upgrade the electrical
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motion to enforce that the defendants ‘‘now advise that
they will not allow the plaintiffs to perform the agreed
upon work and have refused to implement the settle-
ment agreement.’’
On September 15, 2022, the plaintiffs filed a motion
to continue the September 22, 2022 trial date. The
motion to continue was based on the filing of the motion
to enforce the purported settlement agreement. The
defendants objected to the motion to continue, charac-
terizing it as a delay tactic. On September 19, 2022,
the court, Tyma, J., granted the plaintiffs’ motion to
continue the trial but ordered that a remote status con-
ference be held before Judge Radcliffe.
On September 20, 2022, the defendants filed an objec-
tion to the plaintiffs’ motion to enforce the settlement
agreement. In their objection, the defendants asserted
that, at the pretrial conference held on August 18, 2022,
‘‘the court made recommendations and provided instruc-
tions to the parties that if they could reach an agreement
service connection between the [defendants’] house and the new utility pole
to comply with the current building code by installing an underground conduit
for the said electrical service; (b) Designate a location for the installation of
the said conduit which location will avoid any adverse impact of the said
installation on the [defendants’] subsurface sewage disposal system or mature
trees on the [defendants’] property; (c) Allow [the defendants] to review the
location for the said installation prior to installation; (d) Apply for all necessary
permits and approvals for the said installation; (e) Make arrangements with
utility providers to transfer utility service/connections to the new utility pole;
and (f) Arrange for [Frontier] to remove the old utility pole. . . .
‘‘(2) The defendants . . . will consent to the plaintiffs and [their] agents,
servants, contractors, and employees to enter onto [the defendants’] property
to designate the location for the installation of the conduit and to perform the
work set forth in paragraph 1; will cooperate in all permits and applications
for the work; and will consent to [Frontier] removing the old utility pole.
‘‘(3) Upon the completion of the work set forth in paragraph 1, the plaintiffs
shall pay to counsel for [the defendants], the sum of $2500 and . . . Kane will
pay to counsel for [the defendants], the sum of $7500.
‘‘(4) Upon the completion of the work, all parties to the action . . . will
exchange releases and all claims and counterclaims in the action will be with-
drawn.’’
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based on those recommendations, then to alert the court
clerk but that otherwise, the trial date would remain on
the court calendar . . . . The parties attempted to reach
an agreement but never did. Importantly, the parties never
reached an agreement on two material terms inter alia:
the location/scope of the expected work5 and the length
of time it would take.’’ (Footnote in original.) On Septem-
ber 22, 2022, the court held a remote status conference
off the record. Thereafter, the court went on the record
and the following colloquy among the defendants’ counsel,
the plaintiffs’ counsel, and the court took place:
‘‘The Court: All right. . . . [W]e have discussed this
matter off the record at length. I did ask the court reporter
to log on so that we would be on the record. I indicated
that this matter had been the subject of extensive discus-
sions on a prior occasion where there was . . . an agree-
ment . . . . I have before me a motion to enforce a settle-
ment agreement and an objection thereto. The motion
[to enforce] a settlement agreement contains an exhibit,
which I propose to read into the record, because I believe
that there was a meeting of the minds the last time we
were here. The only matter that was left pending was the
location of the conduit, and that would await the selection
of a contractor. . . . [Defendants’ counsel], you have filed
an objection to that motion, I will . . . hear you at this
time.
‘‘[The Defendants’ Counsel]: Thank you, Your Honor. I
vehemently disagree with the court’s characterization of
our discussion that occurred at the last pretrial as an
agreement. It . . . was a pretrial. Your Honor made rec-
ommendations based on the discussions that were had.
5
‘‘Interestingly, the plaintiffs insisted throughout the negotiations on inserting
a drawing dictating the location of the conduit as an attachment to the proposed
agreement, to which the defendants objected repeatedly—that attachment is
missing from the plaintiffs’ attempt at representing that some agreement was
reached and is also not the last iteration of drafts exchanged. Other material
terms regarding warranty, right of entry on the defendants’ property by the
plaintiffs, and other such terms are also missing from the attachment.’’
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And then further instructed us to see if we could hammer
out an agreement based on those recommendations. I
would like to note that the trial date was kept on, after
that pretrial. And part of Your Honor’s instructions to us
were to contact the clerk’s office, or file a caseflow request,
if an agreement was reached to mark off the trial date.
Otherwise to keep the trial date on for the time being . . .
in case we [were not] able to reach an agreement. . . .
‘‘[T]he clients never presented themselves during the
pretrial. This was just a discussion amongst lawyers,
where we presented our arguments and . . . tried to see
if there was a way forward based on those discussions.
Without waiving any objections, even if the court did find
that there was some sort [of] agreement, the court still
instructed us to come up with some sort of written agree-
ment that included additional terms. . . .
‘‘The Court: What terms were not . . . discussed? . . .
‘‘[The Defendants’ Counsel]: . . . [P]art of my issue,
Your Honor . . . is that this exhibit, that was attached
to the motion, is not the most recent iteration of the . . .
drafts that were exchanged by the parties. . . .
‘‘The Court: What is included in the more recent iteration
that is not included in exhibit A?
‘‘[The Defendants’ Counsel]: For example, Your Honor,
the discussions that we had about the warranty that . . .
would be provided by the contractor for the work that
would be done, or contemplated to be done. . . .
‘‘The Court: What is the language? You said that they
were not included in the . . . latest draft. What language
is included in that paper that was not included in exhibit
A? . . .
‘‘[The Defendants’ Counsel]: In paragraph 1 where it
says . . . ‘which obstructs the plaintiffs’ use of a right of
a way.’
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‘‘The Court: All right.
‘‘[The Defendants’ Counsel]: We had specifically
removed that because there was never an agreement. . . .
[T]hese proceedings have been about . . . whether or
not there’s an obstruction. . . .
‘‘The Court: . . . You object to the words, ‘which
obstructs the plaintiffs’ use of the right-of-way.’ . . .
‘‘[The Defendants’ Counsel]: . . . [T]here was an addi-
tional paragraph G. . . . That the plaintiffs shall complete
the work within four months of the receipt of all required
electrical components by the electrician. And to use all
reasonable efforts to complete the work by the end of
January, which deadline is subject to supply chain issues.
. . . And importantly there was a paragraph H; the plain-
tiff[s] shall restore all areas to the [defendants’] property
that are disturbed by the work to their original condition.
‘‘The Court: Well, I think that goes without saying. . . .
[The exhibit] appears to include everything that was
included with the exception of that four month period,
which certainly appears to be reasonable because it’s sub-
ject to supply chain issues.
‘‘[The Defendants’ Counsel]: . . . [T]hat the funds be
paid within thirty days of signing the agreement, which
there . . . was no signing or an agreement. . . .
‘‘The Court: . . . [T]hat wasn’t part of the original
agreement that we discussed . . . last time. It was that
the payment would be made when the work was . . .
completed. And . . . a reasonable time is implied. But
we can say within thirty days, that’s easy. . . .
‘‘[The Defendants’ Counsel]: There was . . . an added
paragraph 5, where the defendants and their . . . tenants
or invitees will have access to the property, and ingress
or egress throughout the duration of the project without
interruption. . . .
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‘‘The Court: . . . [N]obody would object to that. May
I say, I don’t think they have the ability to . . . stop them,
that’s up to your client.
‘‘[The Defendants’ Counsel]: Part of the draft also
included an added paragraph 6, that downtime . . . as
far as interruption of services, shall be reduced to a mini-
mum . . . . [W]hat we had asked for was . . . in any
instance where the [defendants’] property is left without
power for longer than two hours. And I believe that there
was some understanding or contemplation of a generator
being provided for any interruption of services beyond
two hours to prevent flooding or other damages. . . .
‘‘The Court: . . . [T]hat was not part of our agreement,
when we were here before. But this whole agreement can
be subject to minimizing any downtime due to lack of
electrical services.
‘‘[The Defendants’ Counsel]: Other language that was
in the draft, Your Honor . . . to ensure that the . . .
defendants will be given at least twenty-four hours’ notice
with a description of the work anticipated to be performed
prior to entry on their property by anyone performing
the work.
‘‘The Court: What? No, that wasn’t discussed.
‘‘[The Defendants’ Counsel]: . . . [T]hat’s part of my
objection, Your Honor, is that . . . there were recommen-
dations, and we attempted to find an agreement . . . .
‘‘The Court: We set forth . . . everything that had to
be done. Now we’re getting . . . to a point where this is
frivolous. We set forth . . . an agreement that the money
. . . would be paid. . . . [I]t was agreed upon. The
amount of money was agreed upon. It was agreed that
the work would be done, a new pole would be installed,
that has been [done]. And the electrical equipment would
be relocated to that pole. And a conduit would be dug,
not in a specific location, but would be dug in a way that
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did not impact several things on the property. That’s what
we discussed, and that’s what I’m prepared to order
because each of you indicated that you had the authority
of your client[s] to enter into that agreement. . . .
‘‘[The Defendants’ Counsel]: Part of the additional dis-
cussion was a release of the lis pendens6 that was filed
against my clients’ property on land records . . . the
release to be filed immediately.
‘‘[The Plaintiffs’ Counsel]: That will be done, Your
Honor.
‘‘The Court: All right. . . . It’s agreed. . . .
‘‘[The Defendants’ Counsel]: And if I may for the record,
Your Honor . . . I also respectfully disagree with any
characterization that any of these requests are frivolous.
. . . [T]here are far more detailed items that are requested
by people who are simply asking for work by contractors
for their own property, which are considered contractual
terms, material terms, and . . . enforceable terms. We
never came to an agreement on . . . a number of these
items. And these drafts were being exchanged back and
forth pursuant to recommendations made at a pretrial,
which is a normal occurrence that happens during the
course of every litigation. And sometimes we don’t come
to an agreement.
‘‘The Court: But each of you . . . were [specifically]
asked if you had the authority of your client to enter into
an agreement on these terms and conditions, and you
each said yes. . . . Now he’s adding additional terms.
‘‘[The Defendants’ Counsel]: . . . I believe that my cli-
ent’s entitled to his . . . reasonably short day in court
6
‘‘[A] notice of lis pendens . . . when properly recorded, warns third parties,
such as prospective purchasers, that the title to the property is in litigation
. . . .’’ (Internal quotation marks omitted.) Gibson v. Jefferson Woods Commu-
nity, Inc., 206 Conn. App. 303, 312, 260 A.3d 1244, cert. denied, 339 Conn. 911,
261 A.3d 747 (2021).
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. . . and to be able to state these things . . . as to why
there was no agreement reached . . . .
‘‘The Court: No, he won’t be able to . . . tell them
why . . . an agreement was not reached, because pretrial
negotiations are not part of any trial. . . . [H]e will not get
an opportunity to vent on that issue.’’ (Footnote added.)
After hearing arguments by counsel, the court incorpo-
rated the additional terms that were discussed by the
defendants’ counsel into the settlement agreement as out-
lined in exhibit A. The court stated: ‘‘All right. Well, there
is before me a motion to enforce a settlement agreement.
Now this . . . motion references [our] Supreme Court[’s]
decision in Audubon . . . that if a settlement agreement
is reached, that the court can enforce the settlement agree-
ment by an order.
‘‘Now I believe that . . . exhibit A does set forth the
basis on which the agreement was completed. And the
last time the parties were here, this was discussed at
length. And there was a . . . meeting of the minds regard-
ing certain basic terms and conditions. Now there have
been some additional terms and conditions . . . or clarifi-
cation, I should say, of the terms and conditions that were
not included in this . . . exhibit. And I’m going to set
them forth for the . . . record at this point.
‘‘The [defendants] have objected to the language in
exhibit A, which says that the utility pole . . . obstructs
[the plaintiffs’] use of a right-of-way. . . . That is of
course an ultimate issue in the case, and as part of the
agreement, they did not necessarily agree that the right-
of-way would be obstructed. So, the first paragraph of the
exhibit would read that . . . at the plaintiffs’ expense will
undertake the following actions to enable Frontier . . .
to remove a utility pole and to allow the plaintiffs and the
. . . defendants to utilize a new utility pole, which is
already in place. There . . . is no agreement that they
concede that the pole obstructs access to the property.
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. . . [Second], design a location for the installation of the
conduit, which location would avoid any adverse impact
. . . on the [defendants’] subservice disposal system or
mature trees on the property. . . . Third, to allow the
defendants . . . to review the location of the installation
prior to the [conduit] installation.
‘‘This is where I have a . . . problem with granting the
motion . . . to enforce a settlement in its entirety.
Because the . . . specific location was not agreed upon.
The only thing that was agreed upon was that the conduit
would go over the lawn or grass area—over the driveway
and—not under the driveway . . . and would be in a
location chosen by the contractor . . . . And the defen-
dants agreed that they would consent to the location over
the grass, provided those conditions were met. The plain-
tiffs would apply for the necessary permits, would make
arrangements to transfer the utility service, and arrange
for Frontier to remove the utility pole. . . .
‘‘Now there was also some discussion about the time.
And the plaintiffs have indicated here, and I’ll make it a
part of any agreement, that they complete the work within
four months of the pulling of any permits and the receipt
of any components subject to supply chain issues. So,
that four month period is certainly a reasonable request.
The . . . exhibit did not say, but I believe it’s implied in
the agreement, that the contractor will restore all dis-
turbed areas to their prior condition. And the court will
order that as . . . part of any agreement. . . .
‘‘The defendant[s] [have] asked that there be no restric-
tions upon tenants or presumably real estate agents or
anyone else at the request of the defendant[s] being
refused entry to the property. And that certainly would
go without . . . saying. That the . . . plaintiffs agree to
minimize any disruption of electrical power to the home
during the course of the installation of the conduit, and
it’s expected that that can be done within a few hours. . . .
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‘‘Now finally any lis pendens on the property would be
released. I believe those were the terms that were agreed
to the last time, I believe that the additions were implicit
in what was agreed to. But I am explicitly stating them
for the record at this point.’’
Following the court’s clarification of the additional
terms that were not in plaintiffs’ exhibit A, the court took a
recess and the defendants’ counsel discussed the modified
settlement agreement with her clients. After the recess,
the defendants’ counsel reported to the court that her
clients did not consider the modified settlement agree-
ment, with the additions made by the court, to be agree-
able. The court then issued an oral decision, granting the
plaintiffs’ motion to enforce the settlement agreement,
subject to the terms and conditions in the plaintiffs’
exhibit, as modified by the court and as reflected in the
September 22, 2022 transcript. The court held that, ‘‘when
this matter was last here [on August 18, 2022] . . . there
was a meeting of the minds as to all material terms, that
the matters to be resolved did not go to the essence
of the agreement, but were matters subject to further
discussion among the parties. The essential terms, which
were agreed to, involve the relocation of . . . the electri-
cal services, the path that a conduit would take to the
property. And those terms were agreed to by all of the
. . . parties. And I’ve read them into the record, including
the additional clarifications, which of course don’t go to
the essence of the agreement but are incorporated by
. . . reference.’’
Thereafter, on September 22, 2022, the court issued a
written order granting the plaintiffs’ motion to enforce the
settlement agreement. Specifically, the court ordered that
the ‘‘[m]otion is granted as to terms and conditions set
forth in exhibit A, as more fully explained and clarified
in a transcript of September 22, 2022, which will be signed
as the decision of the court. It is found that a meeting
of the minds occurred, and that issues remaining to be
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discussed did not impact the essence of the agreement
at an earlier pretrial conference. The agreement has been
partially performed, through the deposit of certain monies
into escrow, which monies are being held by [the plaintiffs’
attorney]. Enforcement of the settlement agreement,
under these circumstances is warranted. Wittman v.
Intense Movers, Inc., 202 Conn. App. 87, [245 A.3d 479,
cert. denied, 336 Conn. 918, 245 A.3d 803] (2021).’’ This
appeal followed.
On appeal, the defendants claim that the court erred
in granting the plaintiffs’ motion to enforce. In support
thereof, they assert that the parties did not reach a clear
and unambiguous agreement either at or following the
August 18, 2022 pretrial conference. We agree and, accord-
ingly, reverse the judgment of the court.
We begin our analysis by setting forth the relevant stan-
dard of review and legal principles that govern our review.
‘‘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. . . . Agree-
ments that end lawsuits are contracts, sometimes enforce-
able in a subsequent suit, but in many situations enforce-
able by entry of a judgment in the original suit. . . .
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. . . . Neverthe-
less, the right to enforce summarily a settlement agree-
ment is not unbounded. The key element with regard to
the settlement agreement in Audubon . . . [was] that
there [was] no factual dispute as to the terms of the accord.
Generally, [a] trial court has the inherent power to enforce
summarily a settlement agreement as a matter of law
[only] when the terms of the agreement are clear and
unambiguous . . . and when the parties do not dispute
the terms of the agreement. . . . The rule of Audubon
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effects a delicate balance between concerns of judicial
economy on the one hand and a party’s constitutional
rights to a jury and to a trial on the other hand. . . . To
use the Audubon power outside of its proper context is
to deny a party these fundamental rights and would work
a manifest injustice.’’ (Citations omitted; internal quotation
marks omitted.) Reiner v. Reiner, 190 Conn. App. 268,
276–77, 210 A.3d 668 (2019).
‘‘A settlement agreement is a contract among the parties.
. . . In order to form a binding and enforceable contract,
there must exist an offer and an acceptance based on a
mutual understanding by the parties. . . . The mutual
understanding must manifest itself by a mutual assent
between the parties. . . . In other words, [i]n order for
an enforceable contract to exist, the court must find that
the parties’ minds had truly met. . . . If there has been
a misunderstanding between the parties, or a misappre-
hension by one or both so that their minds have never
met, no contract has been entered into by them and the
court will not make for them a contract which they them-
selves did not make. . . . Meeting of the minds is defined
as mutual agreement and assent of two parties to contract
to substance and terms. It is an agreement reached by
the parties to a contract and expressed therein, or as the
equivalent of mutual assent or mutual obligation. . . .
This definition refers to fundamental misunderstandings
between the parties as to what are the essential elements
or subjects of the contract. It refers to the terms of the
contract, not to the power of one party to execute a
contract as the agent of another.’’ (Citations omitted; inter-
nal quotation marks omitted.) Kinity v. US Bancorp, 212
Conn. App. 791, 824–25, 277 A.3d 200 (2022).
‘‘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
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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. . . . Fur-
thermore, [p]arties are bound to the terms of a contract
even though it is not signed if their assent is otherwise
indicated. . . .
‘‘Finally, [t]he fact that parties engage in further negotia-
tions to clarify the essential terms of their mutual under-
takings does not establish the time at which their undertak-
ings 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 author-
ity that precludes contracting parties from engaging in
subsequent negotiations to clarify or to modify the agree-
ment that they had earlier reached. . . . More important
. . . [when] the general terms on which the parties indis-
putably 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.’’ (Citations omitted; empha-
sis altered; internal quotation marks omitted.) Wittman
v. Intense Movers, Inc., supra, 202 Conn. App. 98–99.
‘‘In Vance v. Tassmer, 128 Conn. App. 101, 16 A.3d
782 (2011), appeal dismissed, 307 Conn. 635, 59 A.3d 170
(2013), this court considered whether, in summarily
enforcing a settlement agreement, a trial court had
exceeded the scope of the agreement . . . . In reviewing
that claim, this court explained that [i]t is axiomatic that
courts do not rewrite contracts for the parties. . . . In
determining whether the court went beyond the scope of
the settlement agreement . . . we review the court’s deci-
sion for an abuse of discretion. . . . [T]he court’s author-
ity in such a circumstance is limited to enforcing the
undisputed terms of the settlement agreement that are
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clearly and unambiguously before it, and the court has
no discretion to impose terms that conflict with the agree-
ment.’’ (Citations omitted; internal quotation marks omit-
ted.) Wheeler v. Beachcroft, LLC, 210 Conn. App. 725, 761,
271 A.3d 141 (2022).
‘‘Discretion means a legal discretion, to be exercised in
conformity with the spirit of the law and in a manner to
subserve and not to impede or defeat the ends of substan-
tial justice. . . . Inherent in the concept of judicial discre-
tion is the idea of choice and a determination between
competing considerations. . . . When reviewing claims
under an abuse of discretion standard, the unquestioned
rule is that great weight is due to the action of the trial
court . . . . Under that standard, we must make every
reasonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse of
discretion. . . . [Our] review of such rulings is limited to
the questions of whether the trial court correctly applied
the law and reasonably could have reached the conclusion
that it did.’’ (Citation omitted; internal quotation marks
omitted.) Palumbo v. Barbadimos, 163 Conn. App. 100,
110–11, 134 A.3d 696 (2016). ‘‘It goes without saying that
the term abuse of discretion does not imply a bad motive or
wrong purpose but merely means that the ruling appears
to have been made on untenable grounds.’’ (Internal quota-
tion marks omitted.) Wheeler v. Beachcroft, LLC, supra,
210 Conn. App. 757.
As previously indicated in this opinion, a court has
the inherent power to summarily enforce a settlement
agreement as a matter of law when the terms of the
agreement are clear and unambiguous. Reiner v. Reiner,
supra, 190 Conn. App. 276. The court may, under Audubon,
hold a hearing to determine whether the terms of an
agreement are clear and unambiguous. Id., 270 n.3. The
court is limited, however, to enforcing clear and unambigu-
ous terms. See id., 277. The court does not have the discre-
tion to impose terms that conflict with the agreement.
See id.
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As a preliminary consideration in our analysis, we note
that the procedural history set forth previously in this
opinion reflects that the defendants asserted in response
to the plaintiffs’ motion to enforce that, despite their
efforts at and following the August 18, 2022 pretrial confer-
ence, they never reached a settlement agreement with the
plaintiffs. Thus, this is not a situation in which the sole
issue before the court was whether one or more terms of
a settlement agreement that had been indisputably entered
into between the parties was clear and unambiguous.
Rather, the defendants’ objection to the motion to enforce
put before the court the factual issue of whether a settle-
ment agreement existed in the first place. ‘‘The existence
of a contract is a question of fact to be determined by
the trier on the basis of all of the evidence. . . . To form
a valid and binding contract in Connecticut, there must
be a mutual understanding of the terms that are definite
and certain between the parties. . . . In order for an
enforceable contract to exist, the court must find that the
parties’ minds had truly met. . . . If there has been a
misunderstanding between the parties, or a misapprehen-
sion by one or both so that their minds have never met,
no contract has been entered into by them and the court
will not make for them a contract which they themselves
did not make.’’ (Citation omitted; internal quotation marks
omitted.) Rosenblit v. Laschever, 115 Conn. App. 282, 288,
972 A.2d 736 (2009).
The plaintiffs relied on exhibit A as evidence of a settle-
ment agreement reached between the parties. The defen-
dants repeatedly disputed that they had entered into such
agreement.7 The court, however, appears to have treated
7
Before this court, the defendants aptly argue that ‘‘[t]here is no evidence
in the record that the proposed settlement terms [in exhibit A] were anything
more than recommendations by Judge Radcliffe meant as a starting point to
complete an agreement in the future. Nothing was put on the record at the
time of the pretrial. The trial remained on the schedule. The defendants even
issued a trial subpoena prior to the filing of the motion to enforce, showing
they clearly did not believe there was an agreement. The only ‘evidence’ [of
an agreement] before the trial court was argument from counsel.’’
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exhibit A—a disputed and unsworn submission of one
party—as an agreement binding the parties. It is not clear
from the record what led the court to this determination.
The court did not conduct a hearing on the motion to
enforce to thereby afford the parties an opportunity to
present evidence with respect to the inherently fact bound
issue of whether the parties had, in fact, entered into a
contract to avoid a trial.8 The failure to thoroughly explore
the issue of whether a settlement agreement existed was
all the more glaring in this case because the parties had
not reported such an agreement to the court on the record
during the course of a court proceeding prior to the time
at which the plaintiffs sought to enforce the purported
agreement. ‘‘A court’s authority to enforce a settlement
by entry of judgment in the underlying action is especially
clear where the settlement agreement is reported to the
court during the course of a trial or other significant court-
room proceedings.’’ (Internal quotation marks omitted.)
Audubon Parking Associates, Ltd. Partnership v. Bar-
clay & Stubbs, Inc., supra, 225 Conn. 811.9 Here, it appears
8
We note that the court heard only arguments by counsel during the status
conference, and the court referenced this court’s decision in Wittman v. Intense
Movers, Inc., supra, 202 Conn. App. 98, for the principle that, if a settlement
agreement is reached, the court may enforce the agreement by an order. We
note that Wittman is factually distinct from the present case. In Wittman, the
trial court granted a motion to enforce a settlement agreement, but only after
holding a hearing during which the parties presented evidence with respect to
the existence and nature of the agreement. Id., 92–93. Specifically, the defendants
offered email correspondence between themselves and the plaintiff’s attorney
to establish that the parties had reached a settlement agreement. Id., 91–92.
The court entered the emails into evidence as full exhibits; id., 92; and relied
on them in determining that the parties had reached a settlement agreement.
Id., 93–94, 96. In the present case, unlike in Wittman, the trial court did not
have any evidence before it to conclude that the parties had entered into a
settlement agreement. Therefore, the court’s reliance on Wittman in enforcing
a settlement agreement between the parties was misplaced.
9
‘‘In the majority of cases where settlement agreements have been summarily
enforced pursuant to Audubon, the agreement at issue was either read directly
into the record or otherwise reported to the court. In the cases where a settle-
ment agreement was not directly presented to the court in full, it nevertheless
was in some sense placed before the court during pending litigation. Ackerman
v. Sobol Family Partnership, LLP, [298 Conn. 495, 499, 4 A.3d 288 (2010)] (‘[a]t
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to be undisputed that the parties made attempts to reach
an agreement after the August 18, 2022 pretrial conference.
Beyond the plaintiffs’ reliance on exhibit A, there was
nothing on the record to demonstrate to the court that
an agreement had been reached.
Moreover, even assuming that exhibit A memorialized
an agreement between the parties, the court, faced with
numerous issues concerning the adequacy of the agree-
ment, thereafter did not hold a hearing pursuant to Audu-
bon to determine whether the parties had a clear and
unambiguous agreement. Rather, after hearing argument
from the parties, and after acknowledging that a material
term of the settlement was ‘‘not agreed upon,’’ the court
issued an order granting the plaintiffs’ motion to enforce
a settlement agreement subject to the terms and condi-
tions as modified by the court. The record is clear that the
parties did not reach a clear and unambiguous agreement.
Therefore, the court abused its discretion in granting the
motion to enforce.
The judgment is reversed and the case is remanded
with direction to deny the plaintiffs’ motion to enforce a
settlement agreement.
In this opinion the other judges concurred.

the time the [pretrial] mediation was concluded, a settlement had not been
reached . . . although [the mediating judge] did remain active in further negoti-
ations between the parties,’ which ultimately resulted in a settlement agreement
reached through out-of-court letters and phone calls, one week before trial
. . . ); see id., 517; Maharishi School of Vedic Sciences, Inc. (Connecticut) v.
Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 600–601,
799 A.2d 1027 (2002) (after ‘[t]rial on the matter commenced . . . the parties
informed the court that they had reached an agreement in principle’ but finalized
details later, during out-of-court negotiations); Tirreno v. The Hartford, 161
Conn. App. 678, 681, 129 A.3d 735 (2015) (‘[f]ollowing a pretrial conference
. . . [settlement] terms were agreed to orally, memorialized in a series of e-mails
exchanged between counsel, and later testified to by [the reneging party’s]
counsel [before the court at an Audubon hearing]’).’’ (Footnote omitted.) Matos
v. Ortiz, 166 Conn. App. 775, 806–808, 144 A.3d 425 (2016).