Colapietro v. Motor Vehicles et al

Filing 118

ORDER granting 101 MOTION to Enforcement Settlement Agreement re 94 Settlement Conference, by Tina Colapietro, Dept of Motor Vehicles. Signed by Judge Holly B. Fitzsimmons on 8/3/11. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TINA COLAPIETRO
v.
DEPARTMENT OF MOTOR VEHICLES
STATE OF CONNECTICUT and
TIMOTHY KULISH

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CIV. NO. 3:08CV238 (WWE)

RECOMMENDED RULING ON MOTION TO ENFORCE SETTLEMENT AGREEMENT
Pending is a Motion to Enforce Settlement Agreement filed by
plaintiff Tina Colapietro and defendant State of Connecticut
Department of Motor Vehicles (“DMV”). Defendant Timothy Kulish
argues that the parties did not reach a settlement on March 23,
2011.

Rather, “[t]here was a tentative settlement of all

outstanding issues as to the parties” and “[t]he settlement was
not put into writing at that time.” [Doc. #106].

Mr. Kulish

appeared pro se at oral argument on June 30, 2011 .1 [Doc. #116].
After careful consideration, the Motion to Enforce Settlement
Agreement [Doc. #101] is GRANTED.
BACKGROUND
Plaintiff brought this action against her employer, the
Connecticut Department of Motor Vehicles, and her former
supervisor, Timothy Kulish, alleging she was subjected to a

1

The Court granted Attorney Richard Franchi’s Motion to
Withdraw as counsel to defendant Kulish on June 27, 2011. [Doc.
##112, 113, 114].
1

sexually hostile work environment, harassment and retaliation in
violation of Title VII of the Civil Rights Act of 1964 and
claiming intentional infliction of emotional distress.
Settlement Negotiations
On March 23, 2011, a settlement conference was held before
the undersigned. [Doc. #32].

At the settlement conference, the

parties reached an agreement on the material terms of a
settlement of this action, subject to final approval by the
Attorney General. The State agreed to pay the settlement amount
of $96,500 to plaintiff in return for the following
consideration:

Ms. Colapietro’s agreement to dismiss the case

and sign a Release of Liability and Discharge of all claims for
the State of Connecticut, the Department of Motor Vehicles, along
with its current and former employees, and for Timothy Kulish.
For the

State’s agreement to pay the full settlement amount,

defendant Kulish agreed to fully release from all liability Ms.
Colapietro, the State of Connecticut and the Department of Motor
Vehicles, including its current and former employees [for all
claims flowing from this case or the settlement thereof]. On
March 23, 2011, the Court reported the case settled “subject to
the approval by the Litigation Management Committee.” [Doc. #94].
On May 5, 2011, the Court entered an Order administratively
closing the case, stating that the “parties have reported that
this action has been settled in full.” [Doc. #95].

2

Counsel for the parties memorialized their agreement in a
draft settlement agreement. [Doc. #115-1]. The terms set forth in
this draft are consistent with the terms agreed upon at the March
23, 2011 settlement conference.

The draft agreement provides, in

pertinent part, that,
1.

The plaintiff, through her counsel, shall
immediately sign and return to defendants’ counsel
a Stipulation of Dismissal (an unexecuted copy of
which is attached hereto as “Exhibit A” and, in
doing so, consent to a voluntary dismissal of this
lawsuit, with prejudice, pursuant to Rule
41(a)(l)(ii), Federal Rules of Civil Procedure.
Counsel for DMV will hold the Stipulation of
Dismissal in escrow and file it with the Court at
the time that the payment referred to in paragraph
2 below is complete. The plaintiff shall also
immediately sign and return the Release of
Liability (unexecuted copy of which is attached
hereto as “Exhibit B”)

2.

The State of Connecticut agrees to pay the
plaintiff a total of Ninety Six Thousand, Five
Hundred Dollars ($96,500) by way of two checks . .
. .

3.

It is agreed and understood that the plaintiff
shall not use this Agreement against the
defendants in any pending or future legal
proceedings, except as may be necessary to enforce
this Agreement, and that the evidence underlying
the claims will not be used to establish any
liability for future claims of any type.

. . . .
9.

The Defendant Kulish shall also immediately sign
and return a Release of Liability releasing the
state and all of its agencies, officers and
employees from liability as stated in “Exhibit C”
attached hereto.

[Sett. Agreement, Doc. #115-1].

3

The Release of Liability and Discharge states
1.

(a) The defendant, Timothy Kulish on behalf of
himself, his heirs, executors, administrators,
successors and assigns, for and in consideration
of the plaintiff’s moving the Court for an order
of dismissal in Civil Case No.: 3:08CV238(WWE) and
other valuable consideration, hereby completely
releases and forever discharges the State of
Connecticut and the Department of Motor Vehicles,
including all current, former employees in their
personal and official capacities from all
liability, claims, demands, obligations, causes of
action, lawsuits, administrative proceedings,
rights, damages, costs, fees, expenses, and
compensation of any nature whatsoever, known or
unknown that defendant may have, including but not
limited to any alleged violations of federal and
state constitutional provisions, or any other
alleged violation of any local, state or federal
law, regulation, or ordinance, and/or public
policy, contract, tort and/or any other common law
cause of action, or other theory of recovery, on
any matter from the beginning of time to and
including the effective date of this agreement.
Said release includes discharge of any claim for
indemnity or attorney fees arising from the
complaint as amended and all related pleadings and
discovery in Civil Case No. 3:08cv238(WWE), United
States District Court, District of Connecticut.

2.

(b) Unknown Claims. Defendant Kulish represents
that he understands that he is releasing claims
that he may not know about, and that he intends to
release such claims. THIS MEANS THAT, BY SIGNING
THIS AGREEMENT, DEFENDANT KULISH WAIVES ANY RIGHT
HE NOW HAVE (sic) OR EVER HAD TO BRING OR MAINTAIN
A LAWSUIT OR MAKE ANY AND ALL LEGAL CLAIMS
WHATSOEVER, AGAINST THE PLAINTIFF, INVOLVING ANY
MATTER ARISING OUT OF ANY KNOWN OR UNKNOWN ACT OR
OMISSION OCCURRING BEFORE THE DATE OF THE
EXECUTION OF THIS AGREEMENT.

[Sett. Agreement Ex. C (emphasis in original)].2

2

Plaintiff’s Release of Liability states:
4

1.

(a) The plaintiff, Tina Colapietro, on
behalf of herself, her heirs, executors,
administrators, successors and assigns,
for and in consideration of the payment
of the sum of $96,500.00 . . . and other
valuable consideration, hereby
completely releases and forever
discharges defendants Department of
Motor Vehicles, Timothy Kulish in both
his official and individual capacities,
the State of Connecticut, including all
former or present employees, officers,
elected officials, representative,
assigns, attorneys, insurers and agents
(collectively “Releases”), in both their
official and individual capacities, from
all liability whatsoever. Said release
and discharge against all the defendants
and the State of Connecticut from all
liability, as described above, includes
all claims, demands, obligations, causes
of action, lawsuits administrative
proceedings, rights, damages, costs,
fees, expenses and compensation of any
nature whatsoever, known or unknown,
that plaintiff may have, including but
not limited to any alleged violations of
federal and state constitutional
provisions, Title VII of the Civil
Rights Act of 1964, Sections 1981
through 1983 and 1985 of Title 42 of the
United States Code, the Civil Rights Act
of 1991, the Employee Retirement Income
Security Act of 1974, the Rehabilitation
Act of 1973, the Americans with
Disabilities Act, the Fair Labor
Standards Act, the Connecticut Fair
Employment Practices Act, Conn. Gen.
Stat. §§46a-69, 46a-70, 46a-71 and 46a99, the State Personnel Act, the State
Workers’ Compensation Act, the State
Employees Retirement Act, State and
Federal Wage laws, or any alleged
violations of applicable collective
bargaining provisions, including but not
limited to the State Employees
5

On April 21, 2011, the Assistant Attorney General forwarded
the draft Settlement Agreement and Release of Liability to
plaintiff’s counsel and to counsel for defendant Kulish.

The

Agreement and Release were signed by plaintiff and returned to
the Assistant Attorney General by e-mail and by regular mail that
same day. [Kaplan Aff. ¶8].
From April 21 through the week of May 16, 2011, counsel for

Bargaining Agent Coalition, or any other
alleged violation of any local, state or
federal law, regulation, or ordinance,
and/or public policy, contract, tort
and/or any other common law cause of
action, or other theory of recovery, on
any matter from the beginning of time to
and including the effective date of this
Agreement, including those matters which
have been raise or could have been raise
in any way, growing out of any incidents
which are the subject of the complaint
as amended and all related pleadings and
discovery in Civil Case No.
3:08CV238(WWE), United States District
Court, District of Connecticut.
2.

(b) Unknown Claims. Plaintiff
represents that she understands that she
is releasing claims that she may not
know about, and that she intends to
release such claims. THIS MEANS THAT,
BY SIGNING THIS AGREEMENT, PLAINTIFF
WAIVES ANY RIGHT SHE NOW HAS OR EVER HAD
TO BRING OR MAINTAIN A LAWSUIT OR MAKE
ANY AND ALL LEGAL CLAIMS WHATSOEVER,
AGAINST THE RELEASES, INVOLVING ANY
MATTER ARISING OUT OF ANY KNOWN OR
UNKNOWN ACT OR OMISSION OCCURRING BEFORE
THE DATE OF THE EXECUTION OF THIS
AGREEMENT.
6

plaintiff and the Assistant Attorney General contacted Attorney
Franchi, counsel for Kulish, and were told that he and his client
“had not been able to connect” and that the settlement documents
would be executed and returned the following week. Attorney
Franchi expressed no problem or concern over any aspect of the
settlement agreement, or the documents themselves.

[Kaplan Aff.

¶¶10-12]. During a second conversation during the week of May 16,
2011, Attorney Franchi advised plaintiff’s counsel that defendant
Kulish had now “changed his mind” and did not want to execute the
settlement agreement, despite his counsel’s urging.
¶12].

[Kaplan Aff.

“At no time did Attorney Franchi indicate to

[plaintiff’s counsel] any particular issue or problem that his
client had with either the settlement agreement or the terms of
the settlement documents.”

[Kaplan Aff. ¶12].

On May 23, 2011, plaintiff’s counsel informed the Court that
“Mr. Kulish’s counsel, Attorney Franchi, advised [him] last week
that Mr. Kulish had ‘changed his mind’ and does not want to
execute the settlement agreement, despite counsel’s advice that
he do so. Please note that Mr. Kulish is not being asked to
contribute any money to the settlement, which is being funded
entirely by the State.” [Pl. Let. 5/23/11 at 1]. A conference
call was held on June 6, 2011, after which the Court directed
counsel for the plaintiff and DMV to file a motion to enforce the
settlement agreement. [Doc. #101].

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Defendant Kulish contends that the parties reached a
“tentative settlement” of the issues on March 23, 2011, and that
after review of the proposed “written document he claims that the
agreement was not as originally accepted and now claims that
there was no meeting of the minds upon which an agreement was
made.” [Doc. #106].

He refuses to sign the agreement.

Attorney Franchi filed a notice of withdrawal as counsel of
record for defendant Kulish on June 23, 2011, pursuant to D.
Conn. L. Civ. R. 83.13(a), after being notified by opposing
counsel that he would be called as a witness at the hearing on
the motion to enforce settlement agreement. The motions to
withdraw [Doc. ##107, 112] were granted on June 27, 2011. [Doc.
##113, 114].
STANDARD
“A settlement agreement is a contract that is interpreted
according to general principles of contract law.”

Powell v.

Omnicom, BBCO/PHD, 497 F.3d 124 (2d Cir. 2007)(citing Omega
Engineering, Inc. v. Omega, S.A., 432 F.3d 437, 443 (2d Cir.
2005));

Brandt v. MIT Development Corp., 552 F. Supp. 2d 304,

319 (D. Conn. 2008). “A contract is binding if the parties have
mutually assented to the terms, and where the terms of the
agreement are ‘clear and unambiguous’.”

Brandt, 432 F.3d at 443

(citing Audubon Parking Assocs. Ltd. P'ship v. Barclay & Stubbs,
Inc.,

225 Conn. 804, 811 (1993)) (internal citations omitted)).

8

“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.

As a

result, the court's authority in such a circumstance is limited
to enforcing the undisputed terms of the settlement agreement
that are clearly and unambiguously before it, and the court has
no discretion to impose terms that conflict with the agreement.”
Nanni v. Dino Corp., No. 29340, 2009 WL 2871363, at *2 (Conn.
App. Sept. 15, 2009) (internal quotation marks and citations
omitted).
Where a settlement agreement has not been signed,
Connecticut courts determine whether there has been mutual assent
using a three-part test.

Omega, 432 F.3d at 443.

“The parties’

intent is determined from the (1) language used, (2)
circumstances surrounding the transaction, including the motives
of the parties, and (3) purposes which they sought to
accomplish."
(1974))).

Id. (citing Klein v. Chatfield, 166 Conn. 76, 80

“‘The intention of the parties manifested by their

words and acts is essential to determin[ing]’ whether the parties
entered into a settlement agreement.”

Brandt, 552 F. Supp. 2d at

319 (quoting Hess v. Dumouchel Paper Co., 154 Conn. 343, 347
(1966)).

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DISCUSSION
The facts of this case satisfy all three of the Omega
factors for determining whether there was mutual assent to an
enforceable settlement. With regard to the first factor, the
terms set forth in the settlement agreement, along with this
Court’s records of the settlement conference, confirm that the
parties settled the case, with the state agreeing to pay $96,500
to plaintiff in return for (1) plaintiff’s agreement to release
the State of Connecticut, the Department of Motor Vehicles, along
with its current and former employees, and Timothy Kulish from
liability for all claims; and (2) defendant Kulish’s agreement to
fully release the State of Connecticut and the Department of
Motor Vehicles, including its current and former employees, from
liability for all claims flowing from this case or the settlement
thereof.
Defendant’s position-that the terms of the settlement were
“tentative”- is not supported by this Court’s review of the
proceedings or the agreement reached at the settlement conference
on March 23, 2011. The language in the draft settlement agreement
circulated to defendant Kulish accurately reflects the agreement
by Kulish and his counsel to provide a release to the State of
Connecticut and Department of Motor Vehicles in exchange for
which the State of Connecticut would fund the settlement and not
seek any contribution from Kulish. “A trial court has the

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inherent power to enforce summarily a settlement agreement as a
matter of law when the terms of the agreement are clear and
unambiguous.”

Audubon Parking Assoc. LP, 225 Conn. 804, 811.

These terms were clear and unambiguous were set forth at the
conference and were accurately reflected in the settlement
agreement.
The second factor is the circumstances surrounding the
parties’ settlement, including the motives of the parties.

As

set forth above, in exchange for avoiding trial and the State’s
agreement to fund the settlement and obtain a release for Kulish
from plaintiff, Kulish agreed to provide a release to the State
of Connecticut and Department of Motor Vehicles. Avoiding the
uncertainty of trial motivates almost every party who negotiates
a settlement. See Brandt v. MIT Development Corp., 552 F. Supp.
2d 304 (D. Conn. 2008) (citing EEOC v. Beauty Enter. Inc., 2007
WL 3231692, at *8 (D. Conn. 2007)). At oral argument, Kulish
stated that he objected to providing a release, but could
articulate no justification for his objection; he did not
identify any claim he wanted to bring against the State or the
DMV arising out of the facts of this case which would be
precluded by this release.

Indeed, Kulish’s employment was

terminated with the DMV in 2008 after, among other things, an
investigation of his computer hard drive which led to the
discovery of thousands of inappropriate images, including images

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of Colapietro. As part of his employment termination agreement,
Kulish executed a release to the State of Connecticut and DMV
whereby he agreed not to seek employment with the State and gave
up any claims arising out of his employment. Kulish was
represented by Attorney Franchi, his counsel here, in settling
the employment termination action.
Nevertheless, Kulish maintains that there was no settlement
here until an agreement was signed and states that he does not
recall being told by the Court or his lawyer that, in order for
the State to pay plaintiff, he would be required to sign a
release of any claims against plaintiff and the State of
Connecticut.

The Court does not find credible Kulish’s

suggestion that Attorney Franchi failed to convey the material
terms of the agreement, and, specifically, that in return for his
signed releases, Kulish would not have to admit liability, he
would not have to pay any money to plaintiff, and he would be
released from this lawsuit. “Parties may enter into a binding
contract orally, and the intention to commit an agreement to
writing, standing alone, will not prevent contract formation.”
Powell, 497 F.3d at 128.

“The settlement remains binding even if

a party has a change of heart between the time he agreed to the
settlement and the time those terms are reduced to writing.”
Kulish does not claim that Attorney Franchi acted without

12

Id.

authority to negotiate a settlement on his behalf.3 “[A]n
attorney with apparent authority may enter into a settlement
agreement that is binding on the client.”

Ackerman v. Sobol

Family Partnership, LLP, 298 Conn. 495, 510 (2010) (citing 1
Restatement (Third), Agency §3.03, cmnt (b), p. 176 (2006)).
Finally, Kulish has identified no prejudice arising from signing
the release and he has articulated no basis for a lawsuit against
the State of Connecticut based on the facts arising from this
lawsuit or the termination of his employment.4

As such, the

circumstances surrounding the settlement agreement support the
parties’ mutual assent and the fact that the settlement agreement
was not signed by Kulish is insufficient to render the settlement
non-binding.
As for the third factor, the terms agreed upon accomplished
the objectives of both plaintiff and defendants. The settlement
and judgment would give plaintiff finality and avoid the expense
and uncertainty inherent in a jury trial.

Defendant Kulish would

obtain finality and an agreement from plaintiff that she would

3

At oral argument, the Court asked Kulish if he was claiming
that neither Attorney Franchi or the Court advised Kulish that he
would have to sign a release with the State and plaintiff. Kulish
responded, “not specifically.” Kulish stated he did not recall
that this term was discussed with him.
4

At oral argument, Kulish stated that any claims he would
bring would be based on the past. The Court asked Kulish what
that might be and he responded that he didn’t know and he had
nothing planned.
13

release the DMV and Kulish from litigation. “When parties agree
to settle a case, they are effectively contracting for the right
to avoid a trial.”

Audubon Parking Assoc. LP, 225 Conn. 804, 812

(emphasis in original).

Here, Kulish did not have to admit

liability and did not have to pay for any portion of the
settlement. Both parties had good reason to settle this case in
light of its long history, defendant Kulish’s financial
situation, and the cost and uncertainty of trial.
CONCLUSION
This Court finds that plaintiff and defendants Department of
Motor Vehicles and Timothy Kulish entered into an enforceable
agreement that is not voidable by defendant Kulish. Therefore,
the Motion to Enforce Settlement Agreement [Doc. #101] is
GRANTED, based on the terms set forth in the draft Settlement
Agreement.
Any objections to this recommended ruling must be filed with
the Clerk of the Court within fourteen (14) days of the receipt
of this order. Failure to object within fourteen (14) days may
preclude appellate review. See 28 U.S.C. § 636(b)(1); Rules 72,
6(a) and 6(e) of the Federal Rules of Civil Procedure; Rule 72.2
of the Local Rules for United States Magistrates; Small v.
Secretary of H.H.S., 892 F.2d 15 (2d Cir. 1989)(per curiam);

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F.D.I.C. v. Hillcrest Assoc., 66 F.3d 566, 569 (2d Cir. 1995).
ENTERED at Bridgeport this 3rd day of August 2011.
/s/
___
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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