Dunn v. Etzel

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ELMA DUNN v. DAVID P. ETZEL ET AL.
(AC 37492)
Beach, Alvord and Norcott, Js.
Argued January 12—officially released June 21, 2016

(Appeal from Superior Court, judicial district of New
Haven, Vitale, J.)
Thomas E. Minogue, for the appellant (plaintiff).
Sandra D. Grannum, pro hac vice, with whom was
Scott M. Harrington, for the appellee (named
defendant).
Opinion

BEACH, J. The plaintiff, Elma Dunn, appeals from
the judgment of the trial court rendered following the
granting of a motion for summary judgment as to the
first count of her complaint in favor of the defendant
David Etzel.1 On appeal, the plaintiff claims that sum-
mary judgment was improperly granted because the
court incorrectly concluded that a release agreement
between the plaintiff and her former employer barred
the claim against the defendant.2 We affirm the judg-
ment of the trial court.
In its memorandum of decision, the court recounted
the underlying facts. ‘‘On February 25, 2014, the plaintiff
. . . commenced this action against the defendant
. . . . In the two count complaint, the plaintiff [alleged]
the following facts. The plaintiff and the defendant are
licensed stock brokers and financial advisors [who]
engaged in a sexual relationship with each other while
working as partners, sharing revenues equally. Shortly
before the plaintiff and the defendant were hired in
June of 2002, as a broker team for Janney Montgomery
Scott, LLC (Janney), the plaintiff terminated their rela-
tionship. Janney provided the plaintiff and the defen-
dant with joint financial advisor numbers so that they
could maintain their previous relationship as partners
and share revenue on a fifty-fifty basis. The defendant
solicited client accounts and the plaintiff formulated
client investment plans, prepared and reviewed plans,
and provided bond offerings to the clients.
‘‘While at Janney, the defendant (1) refused to pay
the plaintiff 50 percent of all the revenue generated
each year by their partnership, (2) unilaterally reduced
the plaintiff’s share of the joint partnership revenues
by transferring clients from their partnership account
to a separate individual account in his name, and (3)
continued to make unwanted sexual advances towards
the plaintiff. As a result, in count one, the plaintiff
alleges the defendant breached his fiduciary duty as
a partner.’’3
The defendant filed a motion for summary judgment.
He argued that he was entitled to judgment as a matter
of law because the claim against him was barred by a
‘‘Settlement Agreement and General Release’’ (release)
signed by the plaintiff and a representative of Janney.
The motion was heard, and the court issued a written
memorandum of decision granting the defendant’s
motion for summary judgment. The court found that
there was no genuine issue of material fact as to
whether the release barred the plaintiff’s claim against
the defendant and found that it did bar the claim. The
plaintiff filed a motion for reargument and reconsidera-
tion, which the court denied.4 This appeal followed.
Additional facts will be set forth as necessary.
The plaintiff claims that the court erred in granting
the defendant’s motion for summary judgment. She
advances three principal arguments in support of her
claim. She argues that the release did not bar her claim
asserting breach of fiduciary duty because (1) Janney
had no control over the parties’ partnership, (2) the
defendant was not a party to the release, and (3) the
plaintiff did not intend to release any claims against
the defendant when she agreed to the terms of the
release. We disagree.
Our review of a court’s decision to grant a motion
for summary judgment is plenary. ‘‘Practice Book § 17-
49 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. In deciding a motion for
summary judgment, the trial court must view the evi-
dence in the light most favorable to the nonmoving
party. . . . The party moving for summary judgment
has the burden of showing the absence of any genuine
issue of material fact and that the party is, therefore,
entitled to judgment as a matter of law.’’ (Internal quota-
tion marks omitted.) Savvidis v. Norwalk, 129 Conn.
App. 406, 409–10, 21 A.3d 842, cert. denied, 302 Conn.
913, 27 A.3d 372 (2011). ‘‘Once the moving party has
met its burden . . . the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
. . . .’’ (Internal quotation marks omitted.) Bonington
v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).
‘‘On appeal, we must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision of the trial
court.’’ (Internal quotation marks omitted.) Savvidis v.
Norwalk, supra, 129 Conn. App. 410. Our review of the
trial court’s decision to grant the defendant’s motion
for summary judgment is plenary. See id.
The following principles guide our review of whether
the release effectively barred the plaintiff’s claim
against the defendant.5 ‘‘A release agreement is a con-
tract. It is well settled that a release, being a contract
whereby a party abandons a claim to a person against
whom that claim exists, is subject to rules governing
the construction of contracts.’’ Giano v. Salvatore, 136
Conn. App. 834, 841, 46 A.3d 996, cert. denied, 307 Conn.
926, 55 A.3d 567 (2012). ‘‘A trial court has the 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 Associates
Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn.
804, 811, 626 A.2d 729 (1993).
‘‘Although ordinarily the question of contract inter-
pretation, being a question of the parties’ intent is a
question of fact . . . [w]here there is definitive con-
tract language, the determination of what the parties
intended by their contractual commitments is a ques-
tion of law. . . . The court’s determination as to
whether a contract is ambiguous is a question of law;
our standard of review, therefore, is de novo. . . .
‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . . In contrast, a contract is ambiguous if the
intent of the parties is not clear and certain from the
language of the contract itself. . . . [A]ny ambiguity in
a contract must emanate from the language used by
the parties. . . . The contract must be viewed in its
entirety, with each provision read in light of the other
provisions . . . and every provision must be given
effect if it is possible to do so. . . . If the language of
the contract is susceptible to more than one reasonable
interpretation, the contract is ambiguous.’’ (Citation
omitted; internal quotation marks omitted.) Electric
Cable Compounds, Inc. v. Seymour, 95 Conn. App. 523,
529, 897 A.2d 146 (2006).
First, the plaintiff argues that Janney had no control
over the parties’ partnership, and, thus, a dispute within
that partnership was separate and distinct from her
employment with Janney. The release contained a pro-
vision that read in relevant part: ‘‘The parties hereby
mutually release each other, their past, present, and
future agents . . . [and] employees . . . from any and
all legal, equitable or other claims, counterclaims, [and]
demands . . . which arise out of . . . the employ-
ment and/or termination of employment of [the plain-
tiff] with Janney, including, but not limited to, any and
all claims or counterclaims for . . . breach of fiduciary
duty . . . .’’ (Emphasis added.)
In determining that the plaintiff’s claim against the
defendant was barred by the release, the court relied
on this language as well as the affidavits of the defen-
dant and James English III, the vice president and
branch manager at Janney’s New Haven office. The
plaintiff does not dispute the facts as presented in the
affidavits. According to these affidavits, the defendant
was an employee of Janney at the time the plaintiff
initiated this action.
The court then examined whether the claim as to the
defendant ‘‘[arose] out of’’ the plaintiff’s ‘‘employment
and/or termination.’’ In doing so, the court quoted from
English’s affidavit in which he averred that the plaintiff
and the defendant ‘‘were [financial advisors] and col-
leagues who worked as a team during their entire tenure
at Janney. The [team] always had [the defendant] and
[the plaintiff] as [financial advisors] who shared team
revenues or commissions through joint [financial advi-
sor] numbers. As [the plaintiff] and [the defendant] were
registered brokers whose licenses were maintained by
Janney, their compensation was paid through Janney.
Janney fully disclosed to [the plaintiff] and [the defen-
dant] the commissions payment received by the [p]art-
ners. . . . In May 2011, [the plaintiff] raised the issue
that her portion of the [team’s] split commissions, then
approximately 40%, should be increased. As a result,
Janney undertook to facilitate an agreement between
the teammates on this issue. However, before any
change was made, [the plaintiff] resigned . . . .’’ The
court found that the affidavits established that the reve-
nues at issue in the plaintiff’s complaint were so con-
nected to her employment with Janney that the claim
directly arose out of the plaintiff’s employment with
Janney. The court concluded, then, that the release
shielded the defendant from liability. The plaintiff now
asserts that Janney ‘‘had no control over [the defendant]
or [the plaintiff] as partners in their partnership entity
that existed separate and apart from Janney,’’ and,
therefore, her claim against the defendant did not ‘‘arise
out of’’ her employment with Janney. The defendant,
however, contends that the release is unambiguous,
‘‘[t]he contract expressly and unambiguously dis-
charges from liability Janney and its employees,’’ and
the plaintiff’s ‘‘[redefinition] of ‘arise out of’ ’’ is a ‘‘fal-
lacy of an argument.’’
The language of the release is clear and unambiguous.
The parties do not dispute that the defendant was an
employee of Janney at the time the plaintiff brought
the action against the defendant. The record does not
support the plaintiff’s argument that her claim against
the defendant does not ‘‘arise out of her’’ employment
with Janney because her partnership with the defendant
is separate from and unrelated to her employment with
Janney. Although the partnership preexisted the parties’
employment with Janney, the parties’ licenses were
held by Janney, the parties performed services for Jan-
ney in exchange for the compensation that is now at
issue, and, as shown by Janney’s efforts to facilitate a
resolution between the parties, Janney was intrinsically
connected to the partnership. The commissions at issue
as well as the alleged breach of fiduciary duty directly
originated from the plaintiff’s employment with Janney,
even if Janney itself did not create the cause of action.
The plaintiff further argues that ‘‘[i]f this issue was
one involving [the plaintiff’s] employment with Janney,
then Janney, as the employer of [the defendant and the
plaintiff] could have simply dictated a resolution of
their partnership dispute. Janney was unable to dictate
any resolution because it had no control over [the defen-
dant and the plaintiff] as partners in their partnership
entity that existed separate and apart from Janney.’’
This argument fails for two reasons. First, the plaintiff
agreed to relinquish her right to pursue claims arising
out of her employment with Janney, not only those
claims pertaining to issues over which Janney had direct
control, as the plaintiff suggests in her brief. Second,
there is nothing in the record to suggest that Janney
was powerless to resolve the dispute between the plain-
tiff and the defendant; English avers in his affidavit only
that the plaintiff quit before Janney could facilitate a
resolution of the dispute. Janney’s efforts to address
the problem—whether or not evidence of ‘‘control’’—
are consistent with the defendant’s argument that the
dispute arose out of the plaintiff’s employment: if two
persons are employees, employment related disputes
ordinarily arise out of said employment. See B & D
Associates, Inc. v. Russell 73 Conn. App. 66, 71, 807
A.2d 1001 (2002) (‘‘[i]n determining whether a contract
is ambiguous, the words of the contract must be given
their natural and ordinary meaning’’ [emphasis added;
internal quotation marks omitted]).6
The plaintiff, moreover, refers to Connecticut and
federal case law to define the phrase ‘‘arising out of.’’
As we stated in footnote 5 of this opinion, we apply
Pennsylvania law in our interpretation of this contract.
There are no Pennsylvania cases cited by the parties,
and we have found none, that support the proposition
that ‘‘arising out of’’ necessarily requires Janney to have
had an element of control over the claim in any event.
Based upon the plain language of the release, the plain-
tiff’s claim of breach of fiduciary duty falls squarely
into the class of claims that the plaintiff agreed to
release—‘‘any and all’’ legal and equitable claims against
Janney’s employees or agents, including breaches of
fiduciary duty, arising out of employment. Janney’s pay-
ments to the plaintiff and the defendant necessarily
are within their employment with Janney. Accordingly,
there is no ambiguity, but rather a clear agreement
between the plaintiff and Janney to release the plain-
tiff’s claims against Janney and its employees, including
the defendant.
Second, the plaintiff contends that the defendant was
not a party to the release and, thus, could not later use
the agreement to bar liability for his alleged breach
of fiduciary duty. In her brief, she stated that ‘‘[the
defendant] did not expressly affirm or assent to any of
the [a]greement’s provisions, and he did not provide
any consideration to obtain the [r]elease by which he
seeks to bar [the plaintiff’s] claims.’’ She noted that (1)
the defendant’s name was not mentioned in the release,
(2) the plaintiff and the defendant did not have a meet-
ing of the minds as to the provisions in the release,
and (3) the partnership between the plaintiff, and the
defendant is not mentioned in the release. Therefore,
she argues, the defendant lacked the ability to invoke
the release.
Pennsylvania courts recognize the ability of contracts
to benefit third parties. See Hasselrode v. Gnagey, 404
Pa. 549, 550–52, 172 A.2d 764 (1961) (interpreting
release extended to ‘‘any and all persons’’ to exempt
individual not named in release and who paid no consid-
eration for release); In re Bodnar’s Estate, 472 Pa. 383,
388, 372 A.2d 746 (1977) (‘‘[t]here is no requirement
that a release specifically name all of the parties to be
released if the terms of the release clearly extend to
them’’); Buttermore v. Aliquippa Hospital, 522 Pa. 325,
329–30, 561 A.2d 733 (1989) (holding that plaintiff could
not bring action against defendants because they were
included in settlement for which plaintiff received con-
sideration even though defendants themselves had pro-
vided no consideration to receive such benefit). In
Taylor v. Solberg, 566 Pa. 150, 159–60, 778 A.2d 664
(2001), a medical malpractice case cited by the trial
court, the Supreme Court of Pennsylvania concluded
that a release signed by a plaintiff and defendant dis-
charged other putative tortfeasors from any liability,
even though those tortfeasors had not been parties to
the release. The court stated: ‘‘In Pennsylvania it is well
settled that the effect of a release is to be determined
by the ordinary meaning of its language. . . . Parties
with possible claims may settle their differences upon
such terms as are suitable to them. . . . They may
agree for reasons of theirs that they will not sue each
other, or anyone else, for the event in question. . . .
When the parties to a release agree not to sue each
other or anyone else for a given event, this can effect
a discharge of others who have not contributed consid-
eration for the release. . . . This is true even if the
language of the release is general, releasing, for exam-
ple, any and all other persons rather than specifically
naming the persons released. . . . However improvi-
dent the release may be or subsequently prove to be
for either party, their agreement, absent fraud, accident
or mutual mistake, is the law of their case. . . . If such
a release can be nullified or circumvented, then every
written release and every written agreement of any
kind, no matter how clear and pertinent, can be set
aside whenever one of the parties changes its mind or
the injured party receives an inadequate settlement.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Id., 155–56.
The plaintiff has not established fraud, accident, or
mutual mistake; thus, the language of the release,
although broad, controls. The release provides specifi-
cally that the plaintiff releases claims against Janney’s
‘‘past, present, and future agents . . . [and] employees
. . . .’’ The defendant was undisputedly a member of
an identified class of released persons. The release in
no way excluded the defendant or the partnership from
the benefit of exemption. The defendant, as an
employee of Janney, was thus entitled to invoke the
protection of the release.
Third, the plaintiff argues that when she agreed to
the terms of the release she did not intend to release the
defendant from any claims. ‘‘As a general rule, releases
encompass only such matters as may fairly be said to
have been within the contemplation of the parties when
the release was given.’’ Farrell v. Lechmanik, Inc., 417
Pa. Super. 172, 175, 611 A.2d 1322 (1992). Nevertheless,
the clear, unambiguous language of the release ren-
dered immaterial the plaintiff’s unexpressed subjective
intent. See A.G. Cullen Construction, Inc. v. State Sys-
tem of Higher Education, 898 A.2d 1145, 1168 (Pa.
Commw. 2006). The plaintiff was, of course, aware that
the defendant was an employee of Janney and that
breach of fiduciary duty claims against Janney employ-
ees were released upon her agreement to the settle-
ment. The release contained no exceptions or
provisions intended to preserve the plaintiff’s claims
against the defendant or those claims relating to her
partnership with the defendant. Consequently, we agree
with the trial court that the release barred the plaintiff’s
claims against the defendant and that summary judg-
ment was therefore appropriate.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Janney Montgomery Scott, LLC, also was named as a defendant, but the
action against it was withdrawn. We therefore refer in this opinion to Etzel
as the defendant.
2
The plaintiff also claimed that the court erred in denying her motion for
reargument and reconsideration. We do not consider this claim on appeal
because the plaintiff did not brief the issue. She raised it only in her brief’s
preliminary statement of the issues. See Richardson v. Commissioner of
Correction, 123 Conn. App. 301, 306, 1 A.3d 1142 (‘‘[w]here a claim is asserted
in the statement of issues but thereafter receives only cursory attention in
the brief without discussion or citation of authorities, it is deemed to be
abandoned’’ [internal quotation marks omitted]), cert. denied, 299 Conn.
910, 10 A.3d 528 (2010). The plaintiff further claims that the court erred
in concluding that (1) the provisions of the release agreement precluded
consideration of the plaintiff’s breach of fiduciary duty claims that arose
out of her partnership with the defendant, and (2) ‘‘the [r]elease did not
limit the released claims to only those claims that arose out of [the plaintiff’s]
employment . . . .’’ These arguments are subsumed in the plaintiff’s pri-
mary claim regarding the granting of the motion for summary judgment.
We shall address those arguments, then, in our discussion of the plaintiff’s
claim that summary judgment was improper.
3
The plaintiff also alleged in count two that Janney aided and abetted
the defendant’s breach of fiduciary duty. This count is no longer at issue
because the plaintiff withdrew her action against Janney.
4
In his brief, the defendant argues that the portion of the plaintiff’s appeal
challenging the summary judgment is untimely. The defendant filed a motion
to dismiss this appeal for the same reason, and this court denied the motion.
Our denial of the motion constitutes a rejection of this argument, and, as
such, we decline to address the contention that the appeal from the summary
judgment is not timely.
5
As to procedural issues, our standard of review is governed by the law
of Connecticut. See Zenon v. R. E. Yeagher Management Corp., 57 Conn.
App. 316, 322, 748 A.2d 900 (2000). The release contains a choice of law
provision that states that the release ‘‘shall be governed by, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to conflicts of laws rules.’’ We apply Pennsylvania law to
the substantive claims concerning the release, as did the trial court and
the parties.
6
The parties and the trial court referred to Connecticut law when dis-
cussing ambiguity, and there has been no indication that Pennsylvania law
is different.