Doe v. Bemer

215 Conn.App. 504

283 A.3d 1074

John DOE et al.

v.Bruce BEMER et al.

AC 44555

Appellate Court of Connecticut.

Argued May 16, 2022

Officially Released October 4, 2022

Kevin C. Ferry, New Britain, with whom, on the brief, was Monique Foley, for the appellants (named plaintiff et al.).

Wesley W. Horton, Hartford, with whom were Brendon P. Levesque, and, on the brief, Ryan P. Barry, Manchester, for the appellee (named defendant).

Moll, Suarez and Vertefeuille, Js.

SUAREZ, J.

The plaintiffs John Doe and Bob Doe,¹ who had brought an action against the defendant Bruce Bemer² that had been withdrawn in accordance with settlement agreements of the parties, appeal from the judgment of the trial court denying their motion for an order restoring the action to the docket (motion to restore) and from the court's denials of their motion for reargument and reconsideration and amended motion for reargument and reconsideration. The plaintiffs also filed an amended appeal challenging the court's failure to adjudicate and marking off their motion to enforce the settlement agreements, its denial of their motion for reconsideration relating to the disposition of their motion to enforce the settlement agreements, and the denial of their motion to terminate an appellate stay. On appeal, the plaintiffs claim that (1) the denial of their motion to restore constituted harmful error, (2) the denial of their motion to reconsider the denial of their motion to restore was clearly erroneous, (3) the hearing on their motion to restore was inadequate and the court improperly failed to hold a hearing "with testimony from witnesses regarding the enforceability of the agreements" in accordance with Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc ., 225 Conn. 804, 626 A.2d 729 (1993) ( Audubon ), (4) the court did not have the authority to refuse to rule on the plaintiffs’ motion to enforce the settlement agreements, and (5) the court improperly refused to grant their motion to terminate an appellate stay and to order enforcement of the settlement agreements. We disagree with the plaintiffs and affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of the plaintiffs’ claims on appeal. On April 27, 2017, the plaintiffs commenced an action against the defendant in connection with the defendant's alleged sexual contact with and exploitation of the plaintiffs while they were minors. In an amended complaint, the plaintiffs alleged claims against the defendant for assault and battery, reckless and wanton conduct, and intentional infliction of emotional distress. Their case was one of nine cases against the defendant that had been consolidated.

The parties subsequently entered into confidential settlement agreements. Those agreements contained similar confidentiality clauses that required the parties not to "disclose or cause to be disclosed any of the terms of [the] [s]ettlement [a]greement, directly or indirectly ...." Each agreement also contained a clause titled "Consent to Reinstate Action to the Docket" (waiver provisions). The waiver provisions provided in relevant part: "In the event of a default by [the defendant] the parties hereto consent to the reinstatement of the civil action to the [c]ourt's [d]ocket solely for purposes of enforcing this [s]ettlement [a]greement against the defaulting party and the entry of the [j]udgment under the terms indicated above. The parties hereby waive any and all objection to the [c]ourt's continuing jurisdiction pursuant to [Practice Book] § 17-4 and [General Statutes (Rev. to 2019)] § 52-212a³ and otherwise waive any objection based upon the four month limitation otherwise prescribed by the [r]ules of [p]ractice and the ... [s]tatutes, solely for the purposes of entry of the stipulated judgment." (Footnote added.)

In light of the settlement agreements, on November 15, 2019, the plaintiffs filed a withdrawal of the action, which indicated that they were withdrawing the action "as to all defendants without costs to any party." Thereafter, on November 20, 2019, the defendant filed a motion to file documents under seal, which was granted by the court in an order dated December 9, 2019. That same day, the court issued the following order: "As this case has been reported settled, case flow is directed to place this case on the settled but not withdrawn list for May 1, 2020."

On April 27, 2020, after the defendant failed to make a second payment pursuant to the settlement agreements, the plaintiffs filed the motion to restore that is the subject of this appeal, asking the court to restore the matter to the docket. According to the plaintiffs, the December 9, 2019 order of the court placing the "case on the settled but not withdrawn list" rescinded their prior withdrawal of the action and "ordered this matter as still pending, with the matter currently scheduled to be withdrawn on or about May 1, 2020." (Emphasis omitted.) The plaintiffs, thus, argued, on the one hand, that the matter was still pending and, on the other hand, that it should be restored to the docket.

The defendant filed an objection to the motion to restore in which he explained that the second payment was not made as a result of breaches of the settlement agreements. Specifically, the defendant claimed that the plaintiffs’ counsel breached the settlement agreement pertaining to John Doe by publicizing certain information about the agreement on counsel's website and that Bob Doe breached his settlement agreement with the defendant by disclosing the settlement to his real estate attorney. For that reason, the defendant claimed, his performance under the settlement agreements was excused and, thus, he was not in default. The defendant also argued that, pursuant to § 52-212a, the court lacked jurisdiction to restore the case to the docket because the motion to restore was filed more than four months after the case was withdrawn, and that the court could not have placed the case on the settled but not withdrawn docket in December, 2019, when the case already had been withdrawn in November, 2019. In response to the defendant's jurisdictional argument, the plaintiffs argued that, pursuant to the waiver provisions in the agreements, the parties expressly had waived the four month requirement of § 52-212a in the case of a default by the defendant.

A remote hearing on the motion to restore and the objection thereto was held on October 5, 2020. The court commenced the hearing by asking counsel for the parties whether, based on the exhibits⁴ that were filed, they agreed that there were settlement agreements filed and signed by all parties, to which each counsel responded in the affirmative. At the hearing and in their subsequent posttrial motions, the parties accused each other of having breached the settlement agreements. The plaintiffs allegedly breached due to the online publication of information concerning the settlement of John Doe's case by his attorney in January, 2020, and because of a disclosure made by Bob Doe to his real estate attorney. The defendant allegedly breached as a result of certain documents filed by his attorney with the court after the settlements had become effective, including a case flow request filed on November 9, 2019, which indicated that the matter had settled.

In an order dated December 30, 2020, the court rendered judgment denying the plaintiffs’ motion to restore. After citing case law concerning the finality of withdrawals, the four month time limitation for filing motions to restore a case to the docket under § 52-212a, and the power of a court to vacate or open a judgment beyond the four month period when the judgment is obtained by fraud, duress, or mutual mistake, the court stated: "The court has carefully reviewed the pleadings, memoranda, exhibits, and the transcript of the remote hearing. The court finds that the parties entered into private mediation and, as a result of the mediation, agreed to resolve all issues [that] were the subject of this litigation. The parties executed thorough and extensive agreements outlining the parties’ rights and obligations. As a result of the private mediation and the execution of the agreements, the plaintiffs filed a withdrawal of the action. The court finds that the defendant's motion to seal [the] file shortly after the withdrawal or the court's order dated December 9, 2019, did not restore the case to the court's docket. " ‘[T]he motion to restore a case to the docket is the vehicle to open a withdrawal ....’ " Law Offices of Frank N. Peluso , P.C . v. Cotrone , 178 Conn. App. 415, 421, 175 A.3d 613 (2017). As to the plaintiffs’ motion to restore, the parties have argued extensively that the parties entered into certain agreements. The plaintiffs and the defendant each claim that the other has materially breached the agreement[s] in various ways. Each party claims a breach of contract." The court concluded that it had not been provided with a legal basis on which it could restore the case to the docket.

On January 19, 2021, the plaintiffs filed a motion for reargument and reconsideration of the denial of their motion to restore, claiming that the court misapprehended the pertinent facts and overlooked principles of law in denying the motion to restore. On that same day, the plaintiffs also filed a motion to enforce the settlement agreements and for the court to render judgment in accordance with the terms of those agreements.

The plaintiffs’ January 19, 2021 motion for reargument and reconsideration of the denial of the motion to restore was denied by the court without explanation by an order dated February 16, 2021. Prior to that ruling, the plaintiffs had filed an amended motion for reargument and reconsideration to correct a scrivener's error in their first motion for reargument and reconsideration. In an order dated February 22, 2021, the court addressed the second motion, stating: "The motion for...