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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKETNO. RE-21-69
RUSSELL JOHANSEN, Plaintiff V.
DONNA REILLY, et al., Defendants ORDER



### REC'D CUMS CLERKS OF( 

### MAR 27 '23 AMl0:23
Beforethe courtis amotionbyplaintiffRussellJohansento enforce a settlementagreement and a cross motionby defendants MiaAlibigi, Katie Johansen, Ryan Johansen, TelaTedesco, and Betsy Wenk to enforce a partial settlement agreement. This is an action for equitable partition ofcertain real property in Standish. The property
was owned by Nadine and Harold Johansen asjointtenants pursuant to a 1971 deed. Six oftheir surviving children and five heirs to two oftheir children who are now deceased are the parties to this action. PlaintiffRussell Johansen contends that his parents' joint tenancy was severed when his father filed for bankruptcy and thathe obtained a one-halfinterest in the property based on a deed received from the Trustee inBankruptcy. The defendants who have filed answers to his complaint contest the validity ofRussell Johansen's deed from the Trustee in Bankruptcy and contend that each ofthe surviving children have a one-eighth interest in the property and that the heirs ofthe deceased children share their parent's one-eighth interest on a per stirpes basis. Five of the defendants filed a counterclaim for equitable partition on that basis.

-Plaintiff-Thomas Miscio, Esq. -Defendant Wenk-Putnam, Def Tedesco, -Def Alibigi, Def Ryan Johansen and Def Katie Johansen-David Sherman, Esq. -Def Reilly, Def Giarranto, Def Harrington, Def Douglass Johansen and Def Ourfalian-Pro Se

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Ms. Giarratano responded, opposing plaintiffs motion to enforce and vehemently denying that she had agreedto any settlement atthe mediation. Kathryn Harrington and Douglass Johansen did not respond to plaintiffs motion, and whether they agreed to the proposed settlement is also in question based ontheir failure to sign the settlement agreement. Subsequently, Attorney Sherman, on behalfofdefendants Alibigi, Tedesco, Wenk, Katie Johansen, and RyanJohansen, filed a motionto enforce the settlement agreement against plaintiff, contending that they agreed to the settlement and therefore were entitled to the payments called for to be paid under the settlement regardless ofwhether defendants Giarratano, Harrington, and Douglass Johansen signed on. That is the second motionthat is now before the court.

Discussion The Law Court has endorsed motions to enforce as an appropriate vehicle to determine whether parties must adhere to an alleged settlement. Doe v. Lozano, 2022 ME 33 

## 1 12, 276 A.3d 44. 4 A settlement agreement is analyzed as a contract and the existence of a binding settlement agreement is a question offact. Id. 

## 113. Inthis case defendant Giarratano's objectionto plaintiffs motionto enforce demonstrates the existence ofa factual dispute as to whether she ever agreed to the settlement agreement outlinedbythe mediator inthe Points ofAgreement documentprepared after the mediation. Giarratano did not file her pro se objection in the form ofan affidavit, but it would be hypertechnical to ignore her objection on that ground. The court has no doubt that if

4 The Law Court in Doe v. Lozano fmther suggested that ifacourt found a settlement agreementto be valid, itwould ordinarily enterjudgmentin accordance with the settlement. Ifapatty also seeks remedies for breach ofa settlement agreement, those can be obtained by filing a supplemental complaint pursuant to M.R.Civ.P. 15(d) to add a breach ofcontract claim for violation ofthe alleged settlement agreement and proceeding on that claim. See 2022 ME 33 

### 1124, 26. 

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Attorney ThomasDanylikconducted a mediation on Zoom with all partiespresent onApril 25, 2022. Russell contends that an agreement was reached at mediation, and the record suggests that Attorney Danylik believed that agreement had been reached because he prepared a short documententitled "Points ofAgreement." 1Accordingto the Points ofAgreement,plaintiffRussell Johansen and one ofthe named defendants, Donna Reilly, were to pay all ofthe other parties a total of$300,000 in exchange for releases ofall the otherparties' interests inthe property. The Points ofAgreement document was sentto counsel for plaintiff, Thomas Miscio, and to Attorney David Sherman, who had appeared for defendants Mia Alibigi, Katie Johansen, Ryan Johansen, Tela Tedesco, and Betsy Wenk.2 Attorney Sherman then prepared a draft settlement agreement and sent that, signed by his clients and by defendant Jennifer Ourfalian, to Attorney Miscio. 3 Notably, Attorney Sherman's draft only called for payments to defendants Alibigi,, Tedesco, Wenk, Ourfalian, Katie Johansen, and Ryan Johansen. Attorney Sherman's draft also included signature lines for only eight ofthe pmties to this action. Omitted in both cases were the three remaining defendants, Coralee Giarratano, KathrynHarrington, andDouglass Johansen, who
are all appearing pro se. Attorney Miscio then sent a draft settlement agreement with almost identical wording to defendants Coralee Giarratano, Kathryn Hanington, and Douglass Johansen, adding signature lines for them and provisions for payment to them. Receiving no response, Attorney Miscio filed
a motion ofplaintiffs behalfto enforce the settlement as to the three defendants who had not signed. Thatis the first ofthe two motions before the court.
1Exhibit 1to Plaintiffs Motion to Enforce SettlementAgreement.
2 The record suggests thatAttorney She1man also represents defendant Jennifer Ourfalian although neither the answer nor the cross-motion filed by Attorney Sherman specifically references her. 3 Exhibit 3to Plaintiff's Motion to Enforce Settlement Agreement. 

### 2instructedto do so, she would submit an affidavit repeating her denial that she had assented to the proposed settlement. Accordingly, plaintiffsmotionto enforcethe alleged settlementis denieduponthe existing record. At a minimum, an evidentiary hearing would be necessary before any finding could be made as to whether the mediator's Points of Agreement constitutes a binding settlement agreement. Doe v. Lozano, 2022 ME 33 

## ,r,r 15, 21-22. 

### If plaintiff contends that he can prove that a binding settlement was reached

­ notwithstanding Giarratano's denial and the failure ofHarrington and Douglass Johansen to sign the settlement agreement
- plaintiffmay file a supplemental complaint adding a claim for breach ofcontract and seek an evidentiary hearing onthat claim. The court would then consider whether to proceed onthat claim orto combine that claim withthe existing claims for trial. That leaves the separate motionto enforce filed on behalfofdefendants Alibigi, Tedesco, Wenk, Katie Johansen, Ryan Johansen and Ourfalian (hereafter, "the Alibigi parties'). In effect, that motion seeks to enforce a partial settlement ofthis action on the theory that those defendants have agreed to the settlement and are entitled to the payments called for under the settlement even ifplaintiffslitigation continues against Giarratano, Harrington, and Douglass Johansen. On this record there is a factual dispute as to the choice between two different understandings ofthe settlement. The mediator's Points of Agreement contemplates an overall settlementresolving the entire action in exchange for $300,000 to be split among nine defendants, expressly including Giarratano, Harrington, and Douglass Johansen, and with quitclaim deeds to executedby all defendants exceptDonnaReilly. Onthisrecord, thatunderstanding appears to have been shared by Attorney Miscio when he sent a settlement agreement to Giarratano, Harrington,



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and Douglass Johansen specifying payments to all defendants except Reilly and including signature lines for all parties including Giarratano, Harrington, and Douglass Johansen. Attorney Sherman and his clients, however, appear to have a different understanding because the settlement agreement he sent to Miscio, executed by his clients, only provided for payments to the Alibigi parties. Italso did nothave signature lines for Giarratano, Harrington, and Douglass Johansen. Onthis record, therefore, the courtcannot find that there was a meeting ofthe minds between plaintiffRussell Johansen on the one hand and the Alibigi parties on the other as to whether the alleged settlement called for an overall resolution ofthe action or whether plaintiff
was separately agreeing to settle the case with Attorney Sherman's clients (and to pay them) even ifthe litigation would continue as to Giarratano, Harrington, and Douglass Johansen. TheAlibigipatiies contendthatAttorney Miscio's affidavit in support ofplaintiffsmotion to enforce demonstrates that there was a separate agreement to pay them because it describes Attorney Sherman's draft as "memorializing the agreement reached at mediation." This does not constitute a statement thatthe agreement Attorney Miscio believedhad been reached at mediation would apply onapartialbasis even ifsome defendants dissented and the settlementdid notresolve the entire case. Moreover, as far as the court can tell, Attorney Miscio only represents plaintiffRussell Johansen and there is another party (Donna Reilly) who would be obligated to pay Attorney Sherman's clients under Sherman's draft settlement agreement. Although a nominal defendant, DonnaReilly may nnowbe aligned with plaintiffRussell Johansen under the proposed settlement in that it contemplates they would both retain aninterest in the property. However, nothing stated by Attorney Miscio couldbind Ms. Reilly.



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The omission ofGiarratano, Harrington, and Douglass Johansen as payees and signatories in Attorney Sherman's draft settlement agreement does suggest that he and his clients understood that Giarratano, Harrington, and Douglass Johansen had not in fact agreed to the settlement set forth in the mediator's Points ofAgreement. It is possible that the Alibigi parties can prove that they have a binding settlement agreement with Russell Johansen and Donna Reilly regardless of whether an overall settlement has been reached. At a minimum, that would also require an evidentiary hearing. Ifthey choose to do so, the Alibigiparties may file a supplemental counterclaim and crossclaim alleging breach ofcontract for violation ofa partial settlement agreement. The court would then consider whether to proceed to an evidentiary hearing on that claim or to combine that claim withthe existing claims for trial.

The entry shall be: Themotionto enforce settlementagainstthethree non-signing defendants filed by plaintiff Russell Johansen and the cross-motion to enforce the settlement against plaintiff filed by defendants Mia Alibigi, Katie Johansen, Ryan Johansen, Tela Tedesco, and Betsy Wenk are both denied on the existing record. Ifthe parties choose to pursue their contentions that a binding settlement agreement or partial settlement agreement were reached, they may file supplemental pleadings as set forth above. The clerk shall incorporate this order inthe docketby reference pursuant to Rule 79(a). Dated: March 

### 27, 2023
Thomas D. Warren Active Retired Justice, Superior Court 

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