Krasko v. Konkos

314 A.3d 34

224 Conn.App. 589

Robert J. KRASKO et al.

v.Robert KONKOS et al.

(AC 45875)

Appellate Court of Connecticut.

Argued October 3, 2023

Officially Released April 9, 2024

Prerna Rao, for the appellants (named defendant et al.).

Alan R. Spirer, Westport, for the appellees (plaintiffs).

Elgo, Moll and Suarez, Js.

SUAREZ, J.

₅₉₁The defendants Robert Konkos and Chelsea Konkos (collectively, Konkos defendants); 105 Honeysuckle 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 conference. 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.

₅₉₂The 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 abutting property (defendants’ property). See footnote 1 of this opinion.

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 burdening 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’ driveway, however, was never removed and currently is being used to provide electrical services to the defendants’ 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 them amended complaint, dated July 18, 2022, the plaintiffs alleged that they "have a perpetual 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 ₅₉₃forth in [the easement] …. [Frontier] owns an overlapping 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, 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 electrical 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 de- fendants have failed and refused to upgrade their electrical connection 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 electrical 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 litigants 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.

₅₉₄A 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 September 15, 2022, just seven days before the date on which the trial was scheduled to commence, the plaintiffs filed, pursuant to Audubon Parking Associates 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. Specifically, the plaintiffs asserted that the defendants initially "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 property." 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 ₅₉₅motion 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 settlement 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, characterizing 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 conference be held before Judge Radcliffe.

On September 20, 2022, the defendants filed an objection to the plaintiffs’ motion to enforce the settlement ₅₉₆agreement. In their objection, the defendants asserted that, at the pretrial conference held on August 18, 2022, "the court made recommendations and provided instructions to the parties that if they could reach an agreement 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 September 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 discussions on a prior occasion where there was … an agreement …. I have before me a motion to enforce a settlement 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.

₅₉₇"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 recommendations based on the discussions that were had. 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 agreement that included additional terms..

"The Court: What terms were not discussed? ..

"[The D...