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MICHAEL BANZIRUK v. HARRY A.
BANZIRUK ET AL.
(AC 35883)
Beach, Alvord and Keller, Js.
Argued October 9, 2014—officially released January 6, 2015
(Appeal from Superior Court, judicial district of
Litchfield, Danaher, J.)
William A. Conti, for the appellant (plaintiff).
John P. Santucci, for the appellee (named
defendant).
Opinion
ALVORD, J. The plaintiff, Michael Banziruk, appeals
from the judgment of the trial court denying his motion
to restore a case to the docket that he had withdrawn
pursuant to a settlement agreement with the defen-
dants, his brothers, Harry A. Banziruk and Nicholas H.
Banziruk.1 On appeal, the plaintiff claims that the court
improperly (1) denied the motion to restore because
the agreement between the parties was unclear and
ambiguous and could not be enforced, and (2) opened
a judgment of default that had been rendered against
Nicholas Banziruk prior to the making of the disputed
agreement.2 We affirm the judgment of the trial court.
The court’s memorandum of decision and the record
reflect the following facts and procedural history. The
plaintiff and the defendants, all brothers, are beneficiar-
ies of the estate of their mother, Mary K. Banziruk, who
died on September 12, 2003. Initially, the plaintiff and
Harry Banziruk were the coexecutors of their mother’s
estate. In August, 2009, the plaintiff filed a claim against
the estate with the Torrington Probate Court for
$245,880, which he alleged represented moneys that he
loaned his mother and moneys that he expended for,
inter alia, maintenance of the family home. Harry Banz-
iruk resigned his fiduciary position as coexecutor the
next month in September, 2009.
On May 20, 2010, the Probate Court denied the plain-
tiff’s claim as untimely. The plaintiff then filed an action
in Superior Court, appealing from the decision of the
Probate Court. At the parties’ request, the trial court
held at least six pretrial conferences in an attempt to
resolve the dispute. Those many efforts were unsuc-
cessful. A trial date was scheduled for February 20,
2013, at which time the plaintiff’s counsel and Harry
Banziruk’s counsel told the court that the parties had
reached an agreement. The settlement agreement was
placed on the record, and the court canvassed all of
the parties to ensure that the terms were acceptable to
everyone involved. Basically, the parties agreed that
they would sign a mutual distribution agreement3 in
the Probate Court and that they would execute mutual
releases relative to any claims against the estate. Pursu-
ant to the settlement agreement, the plaintiff withdrew
his action that same day.
On April 1, 2013, the plaintiff filed a motion to restore
the case to the docket. He claimed that the ‘‘[p]arties
have been unable to agree on the exact language of the
final agreement.’’ On April 2, 2013, Harry Banziruk filed
an objection to the plaintiff’s motion on the ground
that ‘‘an enforceable settlement agreement has been
adjudicated on the record.’’ By order dated April 5,
2013, the court ordered the parties to file memoranda
identifying ‘‘the specific points of disagreement that
exist between them relative to [the] draft agreements.’’
The plaintiff’s memorandum stated that the plaintiff,
after discussions with the Probate Court, ‘‘preferred a
compromise of claim4 rather than a mutual distribu-
tion.’’ (Footnote added.) Further, the plaintiff indicated
that he believed that his claim should be allowed as to
any assets that might later be discovered in his mother’s
2003 estate, whereas Harry Banziruk maintained that
only the assets listed in the current estate inventory
could be reached to satisfy the claim. The plaintiff
argued that the settlement agreement could not be
enforced because the dispute demonstrated that there
had been no ‘‘meeting of the minds.’’
Harry Banziruk filed a memorandum in support of
his objection to the motion to restore, in which he stated
that the plaintiff failed to abide by the terms of the
settlement agreement in the following respects: (1) he
failed to prepare a mutual distribution agreement; (2)
he filed a compromise of claim for $245,880, which
exceeded the fair market value of the estate’s assets in
the inventory filed on August 18, 2009;5 (3) he failed to
prepare individual releases for the wife and children of
Harry Banziruk; and (4) the indemnification agreement
that he prepared was ambiguous. Nicholas Banziruk, as
a self-represented party, likewise filed a memorandum
claiming that the parties had negotiated an agreement
that limited the plaintiff’s claim to the value of the estate
as of August 18, 2009.
The court held a hearing on the plaintiff’s motion to
restore the case to the docket on June 18, 2013. At that
hearing, the court informed the parties that it reviewed
the pleadings in the case and that it ‘‘very carefully’’
reviewed the February 20, 2013 transcript of the hearing
at which the settlement agreement was placed on the
record. The court then asked counsel and Nicholas
Banziruk whether all parties previously agreed that they
would sign a mutual distribution agreement. Everyone
responded in the affirmative. The court next asked
whether the parties previously agreed that the plaintiff’s
claim was to be limited to the fair market value of the
estate’s assets as listed in the August, 2009 inventory.
Nicholas Banziruk and counsel for Harry Banziruk
responded in the affirmative, but plaintiff’s counsel dis-
agreed that his client’s claim was limited to those assets.
After additional argument by counsel for the plaintiff
and Harry Banziruk, the court stated that it was denying
the plaintiff’s motion to restore the case to the docket
and that a written decision would follow.
On June 25, 2013, the court issued its memorandum
of decision on the plaintiff’s motion to restore the case
to the docket. After reciting the factual and procedural
history, and the relative positions of the parties, the
court detailed the terms of the settlement agreement
as stated at the February 20, 2013 hearing. The court
found that those terms were clear and unambiguous.
According to the court: ‘‘The parties agreed to enter into
a mutual distribution agreement, and the settlement
agreement called for the distribution of the assets listed
on the estate’s inventory. There is no justification for
the plaintiff’s failure to abide by the terms of the
agreement into which he entered. There is no basis for
restoring this case to the docket. The motion is denied.’’
This appeal followed.
On appeal, the plaintiff claims that the court improp-
erly denied his motion to restore because ‘‘[t]he specific
terms of the agreement still had yet to be worked out
among the parties.’’ The plaintiff argues that the parties
had ‘‘come to a general understanding,’’ but that the
agreement was unenforceable because ‘‘the intent of
the parties is not clear and certain from the language
of the [agreement] itself, making the [agreement]
ambiguous.’’
In setting forth the applicable standard of review, we
must first state the procedural posture of the case
before us. This is an appeal from the denial of a motion
to restore the plaintiff’s case to the docket; it is not
an appeal from a judgment enforcing the terms of a
settlement agreement. See, e.g., Audubon Parking
Associates Ltd. Partnership v. Barclay & Stubbs, Inc.,
225 Conn. 804, 626 A.2d 729 (1993). Accordingly, we
must determine whether the trial court abused its dis-
cretion when it denied the plaintiff’s motion. ‘‘The ques-
tion of whether a case should be restored to the docket
is one of judicial discretion.’’ (Internal quotation marks
omitted.) Travelers Property Casualty Co. of America
v. Twine, 120 Conn. App. 823, 826, 993 A.2d 470 (2010).
‘‘[General Statutes] § 52-212a6 is applicable not only
to the opening of a case that has proceeded to judgment
but also to the restoration of a withdrawn case.’’ (Foot-
note added.) Rosado v. Bridgeport Roman Catholic
Diocesan Corp., 276 Conn. 168, 196, 884 A.2d 981 (2005).
‘‘The principles that govern motions to open or set
aside a civil judgment are well established. Within four
months of the date of the original judgment, Practice
Book [§ 17-4]7 vests discretion in the trial court to deter-
mine whether there is a good and compelling reason
for its modification or vacation. . . . The exercise of
equitable authority is vested in the discretion of the
trial court and is subject only to limited review on
appeal. . . . We do not undertake a plenary review of
the merits of a decision of the trial court to grant or to
deny a motion to open a judgment. The only issue on
appeal is whether the trial court has acted unreasonably
and in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action.’’ (Emphasis omitted; footnote added; internal
quotation marks omitted.) Yale University v. Out of
the Box, LLC, 118 Conn. App. 800, 805–806, 990 A.2d
869 (2010).
In the present case, the court denied the plaintiff’s
motion to restore because the parties entered into a
settlement agreement to resolve their dispute, the terms
of which the court found to be clear and unambiguous.
Upon our review of the February 20, 2013 transcript,
we conclude that there is support in the record for the
court’s determination.8 The parties agreed to enter into
a mutual distribution agreement, and plaintiff’s counsel
referenced the inventory for the estate and described
the assets in that inventory. There is no mention whatso-
ever of the possibility of discovering estate assets in
the future.9 Under these circumstances, we cannot con-
clude that the court abused its discretion in denying
the plaintiff’s motion to restore his case to the docket.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Withdrawals are analogous to final judgments. . . . 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.’’ (Internal quotation marks
omitted.) Sicaras v. Hartford, 44 Conn. App. 771, 775–76, 692 A.2d 1290,
cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). ‘‘[T]he 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.’’ (Internal quotation marks omitted.)
Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 196,
884 A.2d 981 (2005).
2
Because, for the reasons that follow, we conclude that the trial court
did not abuse its discretion in denying the plaintiff’s motion to restore the
case to the docket on the ground that the terms of the settlement agreement
were clear and unambiguous, we find the plaintiff’s second claim to be
without merit. The court opened the judgment of default against Nicholas
Banziruk prior to its acceptance of the settlement agreement between the
parties. ‘‘Consent to a stipulated judgment necessarily forecloses reopening
of alleged misrulings earlier in the proceedings.’’ Sparaco v. Tenney, 175
Conn. 436, 437, 399 A.2d 1261 (1978).
3
See General Statutes § 45a-434 (c) (‘‘[I]f all persons interested in the
estate . . . make and file in the court an agreement as to the division of
the estate . . . such agreement shall be a valid division of the estate if
approved by the Court of Probate. . . .’’); see also Greene v. King, 104 Conn.
97, 101–102, 132 A. 411 (1926) (mutual distribution agreement valid contract).
4
See General Statutes § 45a-151 (a) (Probate Court ‘‘may . . . authorize
. . . fiduciaries to compromise and settle any doubtful or disputed claims
[against the estate] . . . .’’).
5
The August 18, 2009 inventory included the family home valued at
$105,000, and various articles of personal property valued at $9224.01, for
a total value of the estate of $114,224.01.
6
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. . . .’’
7
Practice Book § 17-4 (a) 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 succeeding the date on which notice was sent. . . .’’
8
The following statements were made by the court and counsel at the
February 20, 2013 proceeding:
‘‘The Court: My understanding is that the parties have reached an
agreement and the agreement will be put on the record.
‘‘[Plaintiff’s Counsel]: Yes.
‘‘[Counsel for Harry Banziruk]: Yes.
‘‘The Court: Who is going to recite the agreement?
‘‘[Counsel for Harry Banziruk]: I will start and—
‘‘[Plaintiff’s Counsel]: I’ll correct him. . . .
‘‘[Counsel for Harry Banziruk]: The parties intend to enter [into] a mutual
distribution in the Probate Court of the town of Torrington in which the
three parties who are seated here are going to be signatories. Therein, they
are going to execute mutual releases to one another of any and all claims
related to the estate of Mary Banziruk. In addition, [the plaintiff] will release
any and all claims related to the estate of Mary Banziruk in reference to
the wife and children of Harry Banziruk.
‘‘There will be in that mutual distribution and indemnification arrangement
whereby all parties will indemnify and hold one another harmless from any
and all claims related to the estate of Mary Banziruk except as to . . . the
United States and/or the state of Connecticut tax obligations that might
arise from gift giving practices more than fifteen years ago. . . .
‘‘[Counsel for Harry Banziruk]: The claim of [the plaintiff] is being reduced
to the fair market value of the inventory file of August of 2009 by [plain-
tiff’s counsel].
‘‘[Plaintiff’s Counsel]: Wait, we’re accepting—we’re accepting in kind
those assets on the inventory for the claim.
‘‘[Counsel for Harry Banziruk]: Yes. That’s what I tried to say. Did it come
out the wrong way?
‘‘[Plaintiff’s Counsel]: Well, it’s a little different.
‘‘The Court: All right. Go ahead.
‘‘[Counsel for Harry Banziruk]: And . . . this action is going to be with-
drawn today with a sixty-day window in order to get the parties to get a
mutual distribution prepared, executed by all parties present, approved by
the decree of the Probate Court of Torrington, and with a right to [plaintiff’s
counsel] and [Nicholas] Banziruk [for] a reinstatement of the action in the
event of noncompliance.’’
***
‘‘[Plaintiff’s Counsel]: Just a couple of things. So in other words, Your
Honor, we’re going to get the assets of the estate, [the plaintiff] will, which
are basically the house at 90-94 Woodbine Street, for which there will be a
quitclaim deed. There [are] some miscellaneous checks, unclaimed property,
in an approximate amount of $8700 and the personalty within the home.
[Harry Banziruk] hasn’t made a claim for personalty, and he’s not. [Nicholas
Banziruk] has some claims that the parties will attempt to resolve. If they’re
unable, then we’ll let the Probate Court decide.
‘‘The Court: All right.’’
The court then asked each party individually whether he agreed with the
terms of the settlement agreement, whether he believed that the terms were
fair and equitable, and whether he wanted the court to accept the agreement
and enter it as an order of the court. Each party responded in the affirmative.
9
As previously noted, Mary Banziruk died in 2003. At oral argument before
this court, plaintiff’s counsel acknowledged that no additional assets have
been discovered during the passage of the past eleven years.