text:
    ELAINE SCHRATWIESER ET AL. v. HARTFORD CASUALTY INSURANCE COMPANY
    (15887)
    Dupont, C. J., and Foti and Lavery, Js.
    Submitted on briefs March 6
    officially released April 15, 1997

      Seth J. Amowitz and Alysia J. Endick filed a brief for the appellants (plaintiffs).

      Philip F. von Kuhn filed a brief for the appellee (defendant).
   FOTI, J.

The plaintiffs appeal from the summary judgment rendered in favor of the defendant. They claim that the trial court improperly determined that (1) there was no genuine issue of material fact relating to whether the plaintiff Elaine Schratwieser was an insured under her father’s policy of insurance and (2) the plaintiff Paul Schratwieser did not allege a claim on his own behalf. We reverse the judgment of the trial court.

The following facts are necessary for the disposition of the appeal. The plaintiffs commenced this action against the defendant to recover uninsured and underinsured benefits pursuant to a policy of insurance, purchased by the plaintiff Paul Schratwieser, covering him as the named insured together with his relatives who are residents of his household. In their three count complaint, the plaintiffs allege that the plaintiff, Elaine Schratwieser, Paul’s daughter, was a passenger in a car that collided with another vehicle in Stamford. In the first count, the plaintiffs seek uninsured motorist coverage, alleging that the vehicle in which Elaine was riding was uninsured. In the second count, the plaintiffs allege that the driver of the car in which Elaine was riding was underinsured and seek underinsured motorist coverage. In the third count, the plaintiffs allege a breach of the implied covenant of good faith because the defendant’s denial of the plaintiffs’ claim was untimely and the reasons for denial were not fully and fairly set forth.

The defendant moved for summary judgment on the ground that Elaine was not a resident of her father’s household at the time of the accident and, therefore, not an insured under the policy. The defendant also moved for summary judgment against Paul on the ground that he had not asserted a claim on his own behalf. Both sides filed depositions of Elaine’s testimony, the defendant in support of its motion and the plaintiffs in opposition. After graduating from college in September, 1990, Elaine obtained a full-time job in Washington, D.C., moved into an apartment in Virginia, and was living there at the time of the accident on November 26, 1991. She had a Virginia telephone number and her automobile was registered and insured in Virginia. At the time of the accident, she was visiting her parent’s home in Harrison, New York, for the Thanksgiving holiday. She has her own room and her own keys to her parent’s home, stores personal belongings there and intends to return to Harrison someday. She also spends some weekends and holidays at her parents’ home. The trial court, in rendering summary judgment, determined that the “defendant presented sufficient evidence to show that [Elaine’s] residence is in Virginia and not in New York with her parents.”

The standard of review of a trial court’s decision granting a motion for summary judgment is well settled and is not challenged in this case. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A “material fact” is a fact that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). A trial court “must view the evidence in the light most favorable to the nonmoving party.” Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991); Remington v. Aetna Casualty & Surety Co., 35 Conn. App. 581, 583, 646 A.2d 266 (1994). “The test is whether a party would be entitled to a directed verdict on the same facts.” Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). “[Construction of a contract of insurance presents a question of law for the [trial] court which [an appellate] court reviews de novo.” Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991).

Viewing the evidence in the light most favorable to the plaintiffs, we disagree with the trial court’s determination that there existed no genuine issue of material fact. In this case, the defendant, in order to be entitled to summary judgment, had to show the absence of a genuine issue regarding whether Elaine was a covered person at the time of the accident. In Remington v. Aetna Casualty & Surety Co., supra, 35 Conn. App. 581, we reversed a summary judgment that the trial court rendered, after finding that a defendant had sustained its burden by demonstrating that a plaintiff was not a member of an insured’s household at the time of an accident.

This case is similar to Remington. Elaine’s deposition testimony and her affidavit set forth that she frequently visited her parent’s home, kept belongings there, and kept one of the bedrooms as her own, which no one else occupied and which was separate and distinct from the guest room. She also received mail there and used her parent’s home as her permanent home, intending to return there someday. We indicated in Remington, in quoting from Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994), that “[i]ntent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case.”

Whether a person is a resident within a household must be determined on the factual circumstances in each case. Griffiths. Security Ins. Co., 167 Conn. 450, 458, 356 A.2d 94 (1975). We must determine whether there was sufficient evidence to show a close familial relationship and joint occupation to constitute a household. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 686, 590 A.2d 957 (1991);Remington v. Aetna Casualty & Surety Co., supra, 35 Conn. App. 581; Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 492, 616 A.2d 806 (1992).

We conclude that the evidence presented, together with the inferences that could reasonably be drawn from that evidence, including evidence of Elaine’s intent, was sufficient to raise a genuine issue of material fact as to whether she was a resident in her father’s household and capable of supporting such a finding by a reasonable fact finder.

Because summary judgment was improperly rendered as against Elaine, it necessarily must be considered to have been also improperly rendered as against Paul. As the named insured, he is a proper party to the action as the named insured in the contract of insurance between him and the defendant.

The judgment is reversed and the case is remanded to the trial court for further proceedings.

In this opinion the other judges concurred.

       In interpreting our decision in Esposito v. Wethered, 4 Conn. App. 641, 496 A.2d 222 (1985), the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment pursuant to Practice Book § 384. Since our decision in Esposito, we have not determined it to be improper for a trial court to consider deposition testimony in ruling on a motion for summary judgment. See Union Trust Co. v. Jackson, 42 Conn. App. 413, 420, 679 A.2d 421 (1996); Battistoni v. Weatherking Products, Inc., 41 Conn. App. 555, 560-61, 676 A.2d 890 (1996). Here, both parties submitted depositions as part of their documents in support or in opposition to the motion for summary judgment without objection. Moreover, the evidence presented by the plaintiff in affidavits provides a sufficient evidentiary basis for our disposition of this appeal. We, therefore, accept the record as it has been submitted to us without ruling on the propriety of deposition testimony when submitted with a motion for summary judgment.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    HOPE’S ARCHITECTURAL PRODUCTS, INC. v. FOX STEEL COMPANY
    (15504)
    Dupont, C. J., and Foti and Lavery, Js.
    Submitted on briefs March 6
    officially released April 15, 1997

      Richard F. Wareing filed a brief for the appellant (defendant).

      Robert A. Ginsburg filed a brief for the appellee (plaintiff).
   FOTI, J.

The defendant appeals from the judgment rendered in favor of the plaintiff. The defendant claims that the trial court improperly heard the defendant’s claim for a set-off at the same time as a hearing in damages and deprived the defendant of reasonable notice and a meaningful opportunity to be heard on its set-off. We affirm the judgment of the trial court.

The sole issue in this appeal is whether the defendant is entitled, as a matter of law, to a separate hearing on its claimed set-off distinct from a scheduled hearing in damages at which the defendant participated.

The following facts are necessary for the resolution of this appeal. The plaintiff commenced this action by a three count complaint to collect money claimed owed for goods sold and delivered to the defendant. By its answer, the defendant admitted that it had received the goods and had not made payment to the plaintiff. The defendant pleaded a set-off against the plaintiffs demands for judgment should the plaintiff be entitled to judgment for money damages. The plaintiff, by reply, denied the set-off allegations and moved for summary judgment on the issue of liability. On February 27,1995, the trial court, Gray, J., granted the motion and the matter was claimed for a hearing in damages. The matter was heard by Hon. Harold M. Mulvey, judge trial referee. At the hearing in damages, the parties stipulated that the plaintiff, on counts one and two, had incurred $10,699.50 in damages. The defendant, while acknowledging that interest, if awarded, would total $1782, opposed the awarding of any interest, but conceded that such an award was discretionary. The third count of the complaint was withdrawn. The trial court then requested the defendant to proceed on its set-off allegations. The sole evidence presented was the testimony of the defendant’s owner. The trial court concluded that, on the credible evidence presented, the defendant had failed to sustain its burden of proving the allegations set forth in its set-off.

In a subsequent articulation, the trial court found that “[t]he only objection made to this court was that [the set-off] should not be tried on a hearing in damages proceeding. There was no objection based on a witness difficulty or a schedule difficulty or the like; nor was there a motion for a continuance so [the defendant] could test the legal merit of the objection.” The only claim made by the defendant was that it was entitled to a separate hearing on its claim of set-off distinct from the hearing in damages. The defendant argues that its set-off was not properly before the court, and that the judge trial referee acted sua sponte and was without authority or discretion to hear it.

The sole issue before the trial court at the hearing in damages was the amount of damages that the plaintiff was entitled to recover. To make that determination, the court may accept evidence offered to reduce the amount of damages claimed. Practice Book § 374; see also Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1982). A defendant is in the position of a plaintiff with respect to a set-off or a counterclaim. See Practice Book § 168; Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 499 n.2, 602 A.2d 1040 (1992). The law of set-off is governed by General Statutes § 52-139 (a), the relevant portion of which provides that “[i]n any action brought for the recovery of a debt, if there are mutual debts between the plaintiff . . . and the defendant . . . one debt may be set-off against the other.” “A condition precedent to the application of § 52-139 is that the defendant’s claim arise from a debt due by the plaintiff.” Elis v. Rogers, 15 Conn. App. 362, 365, 544 A.2d 633 (1988). While a counterclaim arises out of the same transaction described in the complaint, a set-off is independent thereof. Savings Bank of New London v. Santaniello, 130 Conn. 206, 210, 33 A.2d 126 (1943).

“The policy of the law is always to prevent unnecessary litigation, and where . . . entire justice can be done to both of the parties before the court, by the ascertainment and set-off of their mutual claims against each other, without a violation of any of the settled rules or forms of law, such set-off ought always to be made.” Avery v. Brown, 31 Conn. 398, 401 (1863). “A set-off is made where the defendant has a debt against the plaintiff . . . and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiffs recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance.” Id. We conclude that clearly a set-off may be heard as part of a hearing in damages in order to reduce or defeat the plaintiffs damages. It is irrelevant that a defendant asserting a set-off may have judgment rendered on his behalf for a balance due.

The defendant had proper notice of the hearing in damages and is assumed to know the law as to its rights during that hearing. The defendant’s due process rights were not violated. It did not seek a continuance nor did it request additional time to present more evidence on its set-off. The defendant chose to rely solely on its objection that a hearing in damages is not a proper forum for purposes of putting forth its set-off claims.

The defendant also argues that the judge trial referee was without discretion or authority to hear the claim for a set-off sua sponte. We do not agree. A judge trial referee has authority to conduct a hearing to determine the amount of damages pursuant to Practice Book § 385. By the very nature of such a hearing, the judge trial referee has authority to hear any and all evidence material and relevant to the issue of those damages, including a set-off.

The defendant also argues that it was greatly prejudiced by having to put forth evidence on its set-off because it was “unable to fully assemble its witnesses and documents for trial, adequately prepare the witness it was able to produce, or adequately prepare to test [the plaintiffs] evidence with organized, thorough, cross-examination.” There is no issue presented that the trial court abused its discretion in any fashion. The defendant never sought a continuance, nor did it suggest any witness or scheduling difficulty, nor did it seek additional time to present other evidence in support of its set-off.

We conclude that the set-off was properly before the trial court and that the trial court had the authority to hear evidence as to the set-off as part of the hearing in damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three count set-off alleged breach of contract, quantum meruit, and a violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act.

         After this appeal was filed, the defendant unsuccessfully sought articulation on the trial court’s legal basis for its decision on the set-off. The defendant then filed a motion for review of that denial with this court. We granted the relief sought.

       Practice Book § 374 provides: “The defendant may, without notice, offer evidence to reduce the amount of damages claimed.”

       The defendant cites Miller v. Bourgoin, 28 Conn. App. 491, 494-500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992), a case in which the trial court granted the plaintiffs motion for summary judgment on his complaint, and sua sponte granted summary judgment on the defendant’s counterclaim, without an appropriate motion for summary judgment on the defendant’s counterclaim having been filed. We acknowledged that a court may not grant summary judgment sua sponte, and that pursuant to Practice Book § 379, a person seeking summary judgment on a counterclaim must, file an appropriate motion addressed to it. A set-off is not part of § 379, and the court herein did not render summary judgment on the defendant’s set-off.

      Practice Book § 385 provides in relevant part: “A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such case the court shall order an immediate hearing before a referee ... to determine the amount of damages. . . . Upon the conclusion of these proceedings, the court, shall forthwith render the appropriate summary judgment.”


author: SCHALLER, J.

text:
    CITY OF NEW HAVEN v. LOCAL 884, COUNCIL 4, AFSCME, AFL-CIO
    (13525)
    O’Connell, Schaller and Freedman, Js.
    Submitted December 18, 1996
    officially released April 22, 1997

      Steven G. Mednick, corporation counsel, with whom was Steven L. Samalot, assistant corporation counsel, for the appellant (plaintiff).

      J. William Gagne, Jr., for the appellee (defendant).
   SCHALLER, J.

This case, in which the plaintiff appeals from the judgment of the trial court denying its application to vacate an arbitration award by the state board of mediation and arbitration, comes to us on remand from our Supreme Court. New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 677 A.2d 1350 (1996).

The record disclosed the following undisputed facts. “Following the plaintiffs termination of the grievanfs employment on April 18,1986, the defendant, Local 884, Council 4, AFSCME, AFL-CIO, filed a grievance on his behalf with the board, which issued an award in favor of the grievant. The plaintiff appealed to the trial court and, following a complicated procedural history not relevant to this appeal, the matter was returned to the board, before which each party sought and received at least one continuance. The matter was assigned for what was to be a final hearing on August 14, 1991.

“Clifton E. Graves, Jr., then [deputy corporation] counsel for the plaintiff, became ill the night before the scheduled hearing. Graves telephoned the board offices the next morning and spoke first with counsel for the defendant, who advised him that the granting of a continuance was the board’s decision. Graves spoke next with the board chairperson, who gave him three options: (1) attend the hearing in person; (2) send an alternate from the office of the corporation counsel; or (3) forfeit his right to be present at the hearing.

“Graves testified that, because of the nature of his illness and the lack of time to prepare someone to take his place, no satisfactory alternate was available. The board and the defendant then proceeded with the hearing. The board drafted a proposed resolution, which the chairperson read to Graves over the telephone. Graves agreed to listen to the proposed resolution because, as he testified, ‘if in fact the board was determined to move forward, which I got clear indications that was the case, then the only alternative we had was perhaps in the best interest of the [plaintiff] to look at, or at least to listen to, the proposed resolution to this matter.’ Graves agreed to the proposed resolution, which was subsequently issued by the board as a written arbitration award.” New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 237 Conn. 380-81.

Subsequently, the plaintiff filed an application to vacate the arbitration award in the Superior Court, which the trial court denied. The plaintiff appealed to this court from that judgment. We held that the trial court improperly denied the application to vacate the arbitration award upon determining that the arbitrators had committed misconduct in violation of General Statutes § 52-418 (a) (3). New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 38 Conn. App. 709, 714, 662 A.2d 818 (1995). The defendant subsequently petitioned the Supreme Court for certification. The Supreme Court granted certification, reversed the judgment of this court and remanded the case to us for further proceedings. We therefore address the plaintiffs remaining claims.

The plaintiff claims that the trial court improperly refused to vacate the arbitration award on the ground that the plaintiffs attorney lacked authority to bind it to the proposed resolution. The court did not make any findings or conclusions on this claim. Instead, it disposed of this issue by stating that “[t]his claim, raised for the first time at the hearing, that [Graves] lacked the authority to bind the plaintiff city . . . appears to the court to be an afterthought. ... It was not placed in the stipulation and if he did require some approval from his client, he had a duty to ensure that it was placed in the stipulation.” We interpret the trial court’s statements to constitute a determination that, even if Graves lacked authority to bind the plaintiff to the arbitration award, the claim was waived because he did not note the lack of authority in the proposed resolution.

We conclude first that the trial court improperly determined that the plaintiffs agent had a duty to include in the proposed resolution the extent or limitations of his authority and power. “[A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract .... Norwalk v. Board of Labor Relations, 206 Conn. 449, 452, 538 A.2d 694 (1988). Thus, every person who deals with [a municipal corporation] is bound to know the extent of its authority and the limitations of its powers. John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 704, 448 A.2d 180 (1982); see Keeney v. Old Saybrook, [237 Conn. 135, 149, 676 A.2d 795 (1996)].” (Internal quotation marks omitted.) Fennell v. Hartford, 238 Conn. 809, 814, 681 A.2d 934 (1996). “ ‘The city attorney cannot go beyond the powers conferred upon him. . . . Generally he has no authority to compromise claims, so that an unauthorized compromise is not binding on the municipality.’ ” Norwalk v. Board of Labor Relations, supra, 452. “ ‘It has been well established that a city’s charter is the fountainhead of municipal powers .... The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. . . . Agents of a city . . . have no source of authority beyond the charter.’ ” Fennell v. Hartford, supra, 813. “ ‘Generally, no officer or board . . . has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate powers ....’” Id., quoting 10 E. McQuillan, Municipal Corporations (3d Ed. Rev. 1990) § 29.15, p. 315; see Keeney v. Old Saybrook, supra, 145-46. “Where the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful.” Caldrello v. Planning Board, 193 Conn. 387, 391, 476 A.2d. 1063 (1984).

We also conclude that the trial court improperly determined that the plaintiff waived any claim that its agent lacked authority to bind it to the arbitration award. There was no indication from the record that the plaintiff empowered Graves with the express authority to waive any of the its claims regarding the extent of his authority. There being no express authority, therefore, it is necessary to look to the facts to determine whether there was apparent authority.

“The rules that govern the determination of apparent authority in an agent require an examination of the acts of the principal, rather than of the agent.” Norwalk v. Board of Labor Relations, supra, 206 Conn. 451. “Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.” (Emphasis added; internal quotation marks omitted.) Id. Apparent authority is to be determined not by the agent’s own acts but by those of the principal. Zazzaro v. Universal Motors, Inc., 124 Conn. 105, 111, 197 A. 884 (1938). Here, there is no evidence that the plaintiff, through its own actions, ever caused or allowed the defendant, or the trial court for that matter, to believe that Graves possessed the authority to waive its claim, or knowingly permitted him to waive its claim. Therefore, Graves did not possess the apparent authority to waive the plaintiffs claim.

The defendant argues, alternatively, that even if Graves did not possess the authority to bind the plaintiff to the arbitration award, the plaintiff ratified the proposed resolution by its subsequent inaction. This claim has no merit. “A municipality may become bound to an agreement, despite its agent’s lack of authority, by a subsequent ratification of the agreement. Ratification by the municipal body with power to do so has the equivalent effect of a prior authorization and binds the municipality just as though authority had been given initially.” Norwalk v. Board of Labor Relations, supra, 206 Conn. 453. Ratification requires acceptance of the results of an agent’s actions with full knowledge of the circumstances. Botticello v. Stefanovicz, 177 Conn. 22, 28, 411 A.2d 16 (1979). In this case, the plaintiff took no steps to accept the results of the proposed resolution. On the contrary, the plaintiffs affirmative acts in pursuing litigation regarding the application to vacate the award and in refusing to comply with its terms demonstrate that it rejected the proposed settlement.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Our Supreme Court granted certification limited to the following issue: “Did the Appellate Court properly conclude that, once the arbitration board had committed misconduct under General Statutes § 52-418 (a) (3), the issue of waiver by the plaintiff was not before the court and that § 52-418 (a) (3) required the vacating of the award?” New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 237 Conn. 383-84 n.5.

       In New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra, 237 Conn. 378, our Supreme Court held that misconduct under § 52-418 (a) (3) may be waived expressly or impliedly by either party and that the trial court’s factual finding and conclusion that the city’s attorney waived the misconduct by continuing to negotiate was not clearly erroneous.

       The plaintiffs second claim on appeal is that the trial court improperly failed to consider whether 1 he award should be vacat ed on collateral estoppel and res judicata grounds. As the plaint iff points out, the trial court did not decide the issues of collateral estoppel or res judicata or even refer to them in its memorandum of decision. The plaintiff acknowledges that it made no request for articulation to the trial court. See Practice Book § 4051. The defendant argues that the plaintiff has not provided an adequate record for review. We agree and decline to address these issues. “It is the responsibility of the appellant to provide an adequate record for review.” Practice Book §§ 4007, 4061. The plaintiffs third claim is that the trial court improperly refused to consider evidence of the proceedings concerning the plaintiffs collateral estoppel and res judicata claims. In view of our determination on the second claim we need not address this claim.

       The plaintiff correctly argues that the court’s memorandum of decision does not comply with Practice Book § 4059 in that it does not state the court’s legal decision or state the factual basis of its conclusion on the issue of whether the award should be vacated because it was based on a proposal agreed to by the plaintiffs attorney without authority. We note, however, that the appellant has the duty to provide an adequate record for review under Practice Book §§ 4007 and 4061 and must, under proper circumstances, move for articulation under Practice Book § 4051. In this case, the appellant has failed to provide an adequate record and failed to move for an articulation on the authority issue. Those failures are not fatal to the plaintiffs claim, however, because of our determination that the trial court improperly decided the issue on the basis of waiver.

       Although the plaintiff did not introduce the city charter into evidence, there was testimony from Graves and the defendant’s counsel as to the authorization procedure for the settlement to be effective. Graves testified that he had no authority to bind the plaintiff, and that any resolution had to be approved by corporation counsel, the board of finance and other city officials. He further testified that the practice of the office of the corporation counsel was such that Graves could only agree “in principle” to the proposed resolution, and that the final resolution had to be presented to the board of finance. He also stated that he believed that he had made clear to the defendant’s attorney, as well as to the board, that the proposal required confirmation by the plaintiff. The defendant’s counsel testified that she was aware of settlements with the city attorney where approval is necessary by the board of finance or some other administrative body.


author: DUPONT, C. J.

text:
    GEORGE W. SICARAS v. CITY OF HARTFORD ET AL.
    (15439)
    Dupont, G. J., and Landau and Spear, Js.
    Argued January 14
    officially released April 22, 1997

      William A. Snider, for the appellant (plaintiff).

      Karen K Clark, with whom, on the brief, were Bourke G. Spellacy and M. Catherine Healy, for the appellees (defendants).
   DUPONT, C. J.

The plaintiff former chief of police of the defendant city of Hartford (city) appeals from the judgment of the trial court, Berger, J., enforcing a settlement agreement signed by the plaintiff and corporation counsel for the city. The plaintiff claims that the settlement agreement is unenforceable because (1) it required the subsequent approval of the city’s pension committee, (2) the corporation counsel lacked authority to settle on behalf of the city and (3) the plaintiff signed the agreement under duress. We affirm the judgment of the trial court.

Prior to the judgment that is the subject of this appeal, the parties appeared before the trial court, Corradino, J., for trial on March 15, 1994. After some discussions and before beginning trial, the parties signed a settlement agreement that was read onto the record in open court on the same day. Judgment did not enter in accordance with the agreement, but both parties signed and then filed a withdrawal of action with the court. On January 27, 1995, after several communications between the parties in which they expressed disagreement as to the meaning of the terms of the agreement, the plaintiff informed the city that he would not agree to the settlement. Subsequently, on February 3, 1995, the defendants filed motions to restore the case to the docket, to enforce the settlement agreement, and for judgment in accordance with the settlement agreement, to which the plaintiff objected. The trial court, Berger, J., granted the motions, restored the case to the docket and rendered judgment enforcing the agreement.

The trial court found certain relevant facts. In 1987, the plaintiff brought suit pro se against the defendants in order to obtain certain pension, medical, severance, and other benefits that he claimed he did not receive upon termination of his employment.

Although the plaintiff had been represented by counsel after he brought suit, on the day that his case was scheduled for trial and he signed the settlement agreement, he appeared pro se, accompanied by his wife. At the end of the negotiations that day, the parties agreed that the plaintiff would sign certain releases of workers’ compensation claims and make submittals to the pension commission, and that the city would make certain payments and place a “name clearing letter” in the plaintiffs personnel file. Approximately one week later, the releases of the workers’ compensation claims were sent to the plaintiff for his signature. On March 29, 1994, the plaintiff sent the city documents that he wanted included in his personnel letter. On March 30, 1994, a copy of the letter was sent to the plaintiff, and on April 1 the plaintiff expressed dissatisfaction with it and also indicated that he did not have the documents ready that were required for his pension application. On April 1, the city submitted a revised personnel letter, and on May 11 the city wrote to the plaintiff to express interest in finalizing the settlement agreement. The plaintiff responded on May 14, 1994, requesting certain pension changes and indicating that he was still dissatisfied with the letter. On June 22, 1994, the city wrote to the plaintiff asking him to complete the releases. Finally, on January 27, 1995, the plaintiff informed the city that he would not agree to the settlement. The trial court held two hearings on the defendants’ motions, including the motion to enforce the settlement agreement, before rendering its judgment that the settlement should be enforced.

I

Before we can reach the merits of the plaintiff’s claims, we must consider the threshold issue of whether the trial court had jurisdiction to restore the plaintiff’s case to the docket eleven months after both parties had signed and filed a withdrawal of the action with the court.

It is clear from the record before us that, although the parties read, in open court, the settlement agreement that they signed on March 15,1994, the court did not render judgment incorporating the agreement. This is clear because (1) the transcript of March 15, 1994, indicates that Judge Corradino made comments to the parties about their comprehension of the agreement, but not about its content, and directed the parties to withdraw their case with the clerk, (2) the docket sheet in the trial court file refers to the March 15, 1994 interaction as “agreement” not as “judgment” or “order,” and (3) the defendants titled their motion of February 3, 1995, a “motion to enforce settlement agreement and for entiy of judgment in accordance with settlement agreement.” The question we must resolve is whether a court retains jurisdiction over an action after both parties have signed withdrawals of it and judgment was never rendered.

Withdrawals are analogous to final judgments. “The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80, is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket. Housing Authority of East Hartford v. Hird, 13 Conn. App. 150, 157, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988), quoting Lusas v. St. Patrick’s Roman Catholic Church Corporation, 123 Conn. 166, 170, 193 A.2d 204 (1937).” (Internal quotation marks omitted.) H. G. Bass Associates, Inc. v. Ethan Allen, Inc., 26 Conn. App. 426, 431, 601 A.2d 1040 (1992); see also Baker v. Cordisco, 37 Conn. App. 515, 520, 657 A.2d 230 (1995).

Because withdrawals are analogous to final judgments, we next consider whether there is a finite time period during which a withdrawal can be “opened,” just as there is a finite time period during which final judgments can be opened. See General Statutes § 52-212a; Practice Book § 326. We reason that the motion to restore a case to the docket is the vehicle to “open” a withdrawal, while the motion to open is the vehicle to open judgments. The issue of timeliness is of concern in this case, the defendants having filed the motion to restore the case to the docket eleven months after the withdrawal. A motion to restore a case to the docket must have a jurisdictional time limitation in the same way as a motion to open.

“We take judicial notice of the practice among presiding trial judges to require counsel to submit withdrawals when the in-court settlement is reached, prior to the execution of the settlement agreement. This practice provides an efficient method of clearing the court’s docket. The trial court often instructs the parties that if difficulties arise upon effectuating the settlement, either party may request that the case be restored to the docket provided it is requested during the time period, in which the court maintains jurisdiction. See, e.g., General Statutes § 52-212a. Either party may then proceed under the original jurisdiction of the court without the necessity of instituting another cause of action.” (Emphasis added.) Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 806 n.3, 626 A.2d 729 (1993).

The facts in Audubon are nearly identical to those presented here, with three differences. Two differences are inconsequential, whereas the other difference could be crucial. Unlike in this case, the parties did not sign the agreement in Audubon. That distinction is not significant, however, because in both cases the parties assented in open court to each provision of the agreements. Parties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated. Schwarzschild v. Martin, 191 Conn. 316, 321, 464 A.2d 774 (1983). The plaintiff in Audubon moved to restore the case to the docket by filing a motion to open. The defendants here filed a motion to restore the case to the docket, which is a difference without significance. The third difference is that the Audubon plaintiffs motion was within the time period prescribed by § 52-212a, whereas, the defendants’ motion in this case was not. If the defendants in this case had filed their motion to restore the case to the docket within four months of March 15, 1994, the court would, on the basis of the Audubon precedent, have retained its original jurisdiction. Our question, however, is whether the court also retains jurisdiction when a motion is filed more than four months after the withdrawal of the action.

General Statutes § 52-212a applies to the restoration of a case to the docket as well as to the opening of judgments. Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, supra, 225 Conn. 806 n.3. The statute provides that “[t]he parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .” Section 52-212a, therefore, relates not to jurisdiction over the subject matter, but to jurisdiction over the person or parties. In re Baby Girl B., 224 Conn. 263, 288, 618 A.2d 1 (1992). “The express inclusion in § 52-212a of a provision that the parties may waive the four month limitation underscores the fact that the statute deals with personal and not with subject matter jurisdiction.” Id. Here, we conclude that the parties waived the four month limitation and submitted to the jurisdiction of the court. The defendants moved to restore the case to the docket as a precursor to their motion to enforce the settlement agreement. The plaintiff also waived the four month limitation by requesting, in his opposition to the defendants’ motion, that the case be restored to the docket. We conclude that the trial court had jurisdiction to restore the case to the docket.

The question of whether a case should be restored to the docket is one of judicial discretion. See CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 391, 685 A.2d 1108 (1996). We cannot say that the court abused its discretion in restoring the case to the docket.

II

The plaintiff raises three issues in his appeal of the trial court’s judgment enforcing the settlement agreement. He argues that the settlement agreement is unenforceable because it required approval from the pension committee. He claims that without prior approval of the pension committee, the city had the power to negate the contract, rendering it illusory. Second, he claims, under the plain error doctrine, that corporation counsel for the city did not have the authority to settle the case, and that, therefore, the contract is voidable. Third, he claims that the conditions under which he consented to the settlement constituted duress. We are unpersuaded.

We first address the plaintiffs claim that the settlement agreement is unenforceable because it required that the pension committee approve the calculations agreed to by the parties. The plaintiff argues that the city and the pension committee are one and the same, and that the provision requiring approval allows, in effect, the city of Hartford to negate the agreement at any time. This, argues the plaintiff, renders the contract illusory. We will assume for the purposes of the plaintiffs argument that the city and the pension committee are in effect one unit. Even if such is the case, we do not agree that as a result the contract is illusory.

Both parties agree that the pension committee’s approval of the agreement is a condition precedent to the enforcement of the contract. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . .A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence.” (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); Bauman & Garrity of Lakeville, Inc. v. George E. Emerson, Inc., 14 Conn. App. 261, 265, 540 A.2d 710 (1988).

The plaintiff argues that the condition precedent of approval makes the contract illusory because the condition is within the control of the promisor. The occurrence or failure of the condition, however, is not within the promisor’s complete control. There are restrictions on the promisor’s alleged ability to prevent the condition from occurring. “If there is a restriction, express or implied, on the promisor’s ability to terminate or to refuse to perform, the promise is not illusory. The tendency of the law is to avoid the finding that no contract arose due to an illusory promise when it appears the parties intended a contract.” 2 A. Corbin, Contracts (Rev. Ed. 1995) § 5.28, p. 149.

The committee could not reject the plaintiffs pension application on a whim. The agreement that the parties signed states: “The City will recommend that the Pension Committee for the City of Hartford approve a pension for George Sicaras in accordance with the following figures. . . .’’The pension committee administers the retirement system for city employees, including the municipal employees’ retirement fund (MERF). See Hartford Municipal Code, ch. XVII, § 2. The plaintiff was a participant in MERF prior to his retirement. The pension committee must review pension applications in accordance with the provisions of the municipal code. See appendix to City Charter, § 21 (f). Clearly, there are guidelines that the pension committee must follow when approving or rejecting pensions, and the fact that a pension application from the plaintiff is submitted pursuant to an agreement does not remove those guidelines.

We also read into the agreement an implied obligation of good faith by the city to provide a pension for the plaintiff. “An implied obligation to use good faith is enough to avoid the finding of an illusory promise.” A. Corbin, supra, § 5.28, pp. 149-50. Good faith in the context of this agreement as it relates to the performance by the city to recommend a pension for the plaintiff is consistent with the common purpose of both the city and the plaintiff and is consistent with their justified expectations. See Warner v. Konover, 210 Conn. 150, 155, 553 A.2d 1138 (1989).

The plaintiff and the defendants, by agreeing to the settlement of the plaintiffs action, have, in effect, agreed that the best interests of the plaintiff and the city would be served by granting the plaintiff a pension. There is no evidence that the city did not make an effort to comply with its obligation under the agreement to recommend a specific pension for the plaintiff to the committee. In fact, it is the plaintiff who thwarted the execution of this provision of the agreement because he failed even to apply to the committee.

The plaintiff makes the related claim that the settlement agreement is not an enforceable contract because the approval of the workers’ compensation commission is required for those portions of the agreement regarding his waiver of certain workers’ compensation claims. The plaintiffs argument, which is the same as his argument concerning approval by the pension committee, is that the agreement is an illusory contract because it gives the workers’ compensation commission the power to reject it. The two issues, however, are not identical. The requirement of approval of the pension committee was expressly stated in the agreement as a condition precedent. The requirement of the approval of the workers’ compensation commission was not. General Statutes § 31-296 requires the workers’ compensation commissioner to approve all agreements between employers and injured employees if the commissioner finds that the agreement conforms to the provisions of the Workers’ Compensation Act. The parties, therefore, had no choice but to incorporate an existing statute as a condition precedent to their agreement.

“ ‘Unless the agreement indicates otherwise, [an applicable] statute existing at the time an agreement is executed becomes a part of it and must be read into it just as if an express provision to that effect were inserted therein.’ Hatcho Corporation v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985).” Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 192, 602 A.2d 1007 (1992). The agreement need not expressly state the need for the commissioner’s approval in order to be valid. In addition, even if the commissioner were to reject the provisions regarding the plaintiffs claims, there would be no effect on the remainder of the agreement, which would still be enforceable. We conclude that the approval of the workers’ compensation commissioner as a condition precedent to the portion of the agreement dealing with the plaintiffs waiver of his workers’ compensation claims does not affect the enforceability of the settlement agreement.

The plaintiffs second argument to substantiate his unenforceability claim is that the corporation counsel did not have authority to bind the city. Specifically, the plaintiff claims that the Hartford municipal code requires that the city council approve all settlements entered by corporation counsel, and, therefore, corporation counsel did not have authority to bind the city to the agreement. The plaintiffs argument is similar to the one he makes regarding the pension committee, namely, that the city had the power to negate the contract if the council did not approve it, and, therefore, the contract is illusory.

Before we discuss the merits of the plaintiffs claim, we must consider whether it has been properly preserved for review because we need not review claims that were not distinctly raised at trial. Practice Book § 4061. We note that this claim was not raised in the plaintiffs complaint, nor was it considered by the trial court in its memorandum of decision. The transcripts indicate that the plaintiff also did not raise the issue orally at either of the hearings on the defendants’ motions to enforce the settlement agreement, to restore the case to the docket or to render judgment in accordance with the settlement agreement.

The plaintiff argues that the claim was raised in the trial court, but in different language. He maintains that his arguments that there was no meeting of the minds and that the agreement was ambiguous include his claim of lack of authority on the part of corporation counsel. We do not agree.

“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.” Black’s Law Dictionary (6th Ed. 1990). 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. The plaintiff argues that the lack of a meeting of the minds is the same claim as a lack of authority by the corporation counsel to bind the city, and that the latter claim that he now makes was, therefore, distinctly raised even though not well articulated. After a thorough review of the record, we conclude that the plaintiffs use at trial of the phrase “meeting of the minds” referred to the plaintiffs alleged misunderstanding of the settlement negotiations and the resulting agreement, not to an alleged lack of authority of corporation counsel. There is not a sufficient nexus between the claim made at trial and the plaintiffs claim on appeal to support the plaintiffs argument that the same claim was previously distinctly raised but not well articulated. We, therefore, agree with the defendants that this claim was not previously raised, and we decline to review the claim.

The plaintiff argues, in the alternative, that his claim should be reviewed under the plain error doctrine. Although we are not bound to review an unpreserved claim, we “may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4061. Plain error review is reserved for very specific situations. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995) .” (Internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 216, 682 A.2d 106 (1996) . “The doctrine of plain error should be invoked sparingly. To hold otherwise would undermine the requirement that claims of law be raised in the trial court in the first instance. . . . Small v. South Norwalk Savings Bank, 205 Conn. 751, 760, 535 A.2d 1292 (1988).” (Internal quotation marks omitted.) Total Property Services of New England, Inc. v. Q.S.C.V., Inc., 30 Conn. App. 580, 593, 621 A.2d 316 (1993).

Our precedents illustrate that plain error review is not appropriate in this case. “An important factor in determining whether to invoke the plain error doctrine is whether the claimed error resulted] in an unreliable verdict or a miscarriage of justice. . . . Plain error review may be appropriate where consideration of the question is in the interest of public welfare or of justice between the parties.” (Citations omitted; internal quotation marks omitted.) DiNapoli v. Cooke, 43 Conn. App. 419, 426, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996). In addition, we have found plain error to be available where a new and unforeseen constitutional right has arisen between the trial and the appeal. See Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 588, 680 A.2d 327 (1996). None of these situations for plain error review is present in this case.

Plain error review may be appropriate when a party seeks review of a strictly legal question that requires no finding of facts. One example of such review involves the failure of a trial court to apply an applicable statute. See Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993). “Plain error review may be appropriate where the record is complete and the question is essentially one of law, so that neither party is prejudiced.” Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 38.

The issue before us, however, is not solely a question of law because it is one that would require further fact-finding. The plaintiff argues that plain error review is warranted here because this court need look only at the provision in the Hartford municipal code that requires the city council to approve the actions of corporation counsel. We disagree, and agree with the defendants that, had this issue been presented to the trial court, the defendants would have had the opportunity to produce evidence of the interpretation of the code by the corporation counsel and the city council, the working relationship between the two, and the power of counsel to enter this particular binding agreement on behalf of the city. We cannot afford plain error review to this unpreserved claim because the issue of the applicability of the code is not strictly legal, but rests on a finding of subsidiary facts.

Finally, the plaintiff claims that he was under duress at the time he agreed to the settlement, and that, therefore, it is unenforceable. The trial court heard extensive testimony on this issue from the plaintiff, his wife, and the attorneys for the city, all of whom were present during the settlement negotiations.

The plaintiff has alleged that he was unable to comprehend the details of the settlement because he did not have an attorney present, because his medication prevented him from focusing, and because there were no breaks in the lengthy negotiations.

The plaintiff claims that when he appeared for trial, he was prepared to pick a jury, but not to proceed with a settlement. The plaintiff testified that during the course of the negotiations, he broke away several times to call a particular attorney. When he could not reach him, he tried to reach other attorneys. The plaintiff testified that although he was never prevented from making these telephone calls, he got the impression that the attorneys representing the city were annoyed that he was doing so. The plaintiff also testified that he never informed the trial court that he could not continue with the negotiations, or that he felt unable to negotiate without the aid of counsel. The plaintiff testified that he told the court only that he did not have his files with him that related to the pension, and he did not request a continuance.

The plaintiffs main complaint seems to be that he was not given an adequate explanation of how the final figure for his pension was calculated, even though he understood that the actual amount of money he would receive was going to be $19,620.66 in an annual pension and $201,111.71 in back pension payments with 6 percent interest. The plaintiff claims that he could not possibly understand these calculations without an attorney present. The plaintiff claims that when he asked for an accounting he was not given one. The attorneys for the city testified that he was given their handwritten notes and the opportunity to use a calculator. The plaintiff testified that he read the agreement and signed it. He also testified that he never informed the court that the discussions were beyond his comprehension, or that he could not understand the calculations.

On the basis of the record, we conclude that the plaintiff was not prejudiced by the lack of counsel at the negotiations. The plaintiff had been pro se in his case for several years before the case was scheduled for trial and the negotiations took place. “Where a party appears pro se, as he has every right to do, his rights and claim should receive the same consideration as if he had been represented by an attorney. Martin v. Martin, 188 Neb. 393, 397, 197 N.W. 2d 388 (1972).”(Internal quotation marks omitted.) Lo Sacco v. Young, 20 Conn. App. 6, 12, 564 A.2d 610 (1989). “Although we are lenient to parties who represent themselves, such leniency should not be invoked as to affect adversely the other parties’ rights.” Id.

The plaintiff also testified that he was threatened that he would not get his pension if he did not agree to the settlement. Coiporation counsel testified that she never made such a threat, but did say that the plaintiff could not be eligible for a pension if he did not file the necessary application papers. The record shows that as of January 27, 1995, when the plaintiff informed the city that he would not comply with the agreement, he had not filed those necessary papers. The plaintiff was aware of his option to go ahead with the trial and not to pursue the settlement if he felt uncomfortable with its terms or his ability to negotiate them. He testified that he was aware that a pension was a remedy that a jury could award him. Indeed, the plaintiff argues that he was prepared to go to trial, but not to negotiate his pension.

The plaintiff adds the related claims that his need for medication combined with his lack of food on the day of the negotiations made him unable to focus on the discussions and to understand the agreement. The plaintiffs wife testified that on the day of negotiations he was taking medication for his heart, blood pressure, anxiety and sleeplessness. He did not, however, inform the court at any time that he was taking such medication or that it prevented him from participating in any way. The witnesses’ testimony is controverted relating to whether there was a lunch break.

“To conclude that a stipulated judgment resulted from duress, the finder of fact must determine that the misconduct of one party induced the party seeking to avoid the stipulated judgment to manifest assent thereto, not as an exercise of that party’s free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be.” Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995). Clearly, the plaintiff in this case always had the reasonable alternative of proceeding with the trial or seeking a continuance. The evidence does not show that the city’s attorneys induced the plaintiffs assent to the settlement against his will. In fact, at the end of the day when the parties reported a settlement to the court, the plaintiff had an opportunity to tell the judge then either that he was not satisfied with the agreement, or did not understand it. He did not, and, in fact, seemed pleased with the outcome.* We conclude that the plaintiff was not under duress.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the city of Hartford, Woodrow Wilson Gaitor, former city manager, Richard Goldstein, corporation counsel, Richard Cosgrove, deputy corporation counsel, Francisco Borges, an elected city councilman, Thirman Milner, mayor, Henry Langley, special assistant to the city manager, and Alfred Gatta, city manager.

       The settlement agreement provides as follows: “The undersigned parties have agreed, in full settlement of the claims in the case Sicaras v. City of Hartford et al., CV-87-0337342S, which is pending in the Superior Court for the Judicial District of Hartford-New Britain at Hartford, as follows:
      “One: The City will recommend that the Pension Commission for the City of Hartford approve a pension for George Sicaras in accordance with the following figures: $19,620.66 annually, $1,635.06 monthly, based upon documents calculated and supplied by the City Treasurer’s Office.
      “Two: The City of Hartford shall pay to George Sicaras the following sums upon approval by the Pension Commission:
      “(A) $201,111.77 in pension benefits due from November 1983 through January 1994. An additional amount of pension benefits will be payable upon approval of the Pension Commission for the period February 1994 through the date of approval of the Pension Commission.

        “(B) $73,376.72, representing 6 percent interest on the sum reflected in item (A) above
      “(C) $3,638.09 in interest on pension contributions taken in error from the plaintiff.
      “Three: From the above sums the City will deduct $3,041.68, representing interest on contributions owed to the MERF.
      “Four: In addition, the City of Hartford will pay to George Sicaras $20,000 in full settlement of the plaintiffs claims for administrative time.
      “Five: In exchange for the foregoing sums, the plaintiff, George Sicaras, agrees that the City may file the attached withdrawal of action upon the Pension Commission's approval of above pension sums. The plaintiff also agrees to execute a release of any and all claims he has, has had or that Hartford's past or present representatives, officials, employees, Pension Commission, or agents specifically in connection with the offer in the pending action, any pending worker’s compensation claim, except for claim number BP33767P (April 22nd, 1971) regarding a back injury, his employment with the City of Hartford, and his pension. This release shall be entered into before any sums are paid to the plaintiff under this agreement.
      “Six: The City and all other named defendants expressly deny any wrongdoing in connection with plaint iff s claim and are entering into this agreement solely to avoid the costs of protracted litigation.
      “Seven: The parties have further agreed that the City of Hartford will prepare a statement to be placed in Mr. Sicaras’s personnel file which will reflect the contents of his favorable performance evaluations received in the past as police chief from Woodrow Wilson Gaitor, then city manager. The statement will be used to respond to inquiries about the plaintiffs performance.”

       The plaintiff also brought suit in federal court, alleging wrongful termination pursuant to 42 U.S.C. § 1983 and violations of his rights pursuant to the first and fourteenth amendments of the United States constitution. The magistrate for the United States District Court for Connecticut rendered summary judgment for the defendants. The plaintiff filed an objection, and United States District Court Judge Peter C. Dorsey accepted, adopted and affirmed the judgment, rendering summary judgment for the defendants.

         His counsel had withdrawn her appearance prior to trial. On the day of trial, the plaintiff attempted to reach another attorney who had represented him in his pension negotiations with the city but found that he was unavailable. Attorney Anna Crawford represented the defendants in the negotiations and was accompanied by Attorney Maria Cone, deputy corporation counsel for the city of Hartford.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .”
      Practice Book § 326 provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months of the entry of judgment. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. . . .”

       The plaintiff in' Audubon sought to recover for the defendants’ breach of a commercial lease. During jury selection on May 15, 1990, the parties announced to the trial judge that they were ready to settle the case, and read the settlement agreement in open court. The trial judge requested that the parties file withdrawals before they left the courtroom for the sake of administrative convenience. Thereafter, the plaintiffs filed a motion to restore the case to the docket in the form of a motion to open. On August 15, 1990, the trial judge restored the matter to the docket and ordered jury selection to commence on August 21, 1990. On August 20, 1990, the plaintiff filed a motion entitled “Motion for Judgment In Accordance with and Enforcement of Contract of Settlement.” On October 1, 1990, the trial court granted the motion and rendered judgment for the plaintiff in accordance with the settlement agreement. See Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 26 Conn. App. 181, 182-83, 599 A.2d 395 (1991), rev’d in part, 225 Conn. 804, 626 A.2d 729 (1993).

       We note that we never reach the question of whether the condition in this case was fulfilled. The pension committee has never reviewed the plaintiffs eligibility or the terms of his pension because the plaintiff did not submit an application to the committee.

       General Statutes § 31-296 provides in relevant part: “If an employer and an injured employee . . . reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding on both parties as an award by the commissioner. . .

       Ambiguity is defined as: “Duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument. . . . Language in contract is ‘ambiguous’ when it is reasonably capable of being understood in more than one sense.” Black’s Law Dictionary (6th Ed. 1990). The plaintiff points to no language in the agreement that he claims is ambiguous as far as concerns the authority of the corporation counsel to bind the city. We, therefore, do not discuss this claim.

       The plaintiff testifies that only live to ten minutes were taken, during which time he was able to share a soda and chips with his wife. Corporation counsel testified that they had at least an hour for lunch.

       “The Court: Okay. Let me make an observation. [The plaintiff] is pro se, but I’ve been impressed by the fact that he’s very familiar with this case. And I can say that both parties have spent at least the last two hours trying to hammer this out. There’s been movement by both sides, and I think—I have a feeling [the plaintiff] knows what he’s doing and, after long consideration of this with his wife, feels this is in his best interest. And I’m glad this was able to be resolved, and I hope you’re able to get on with your life and put it behind you. And the city, I know, will always have different cases and matters to deal with. Okay?
      “[The Plaintiff]: Appreciate the court’s help with this matter, Your Honor.”