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STATE OF MAINE SUPERIOR COURT 

CUMBERLAND, ss CIVIL ACTION 

DOCKET NO. RE-21-69 

RUSSELL JOHANSEN, 

Plaintiff 

V. 

DONNA REILLY, et al., 

Defendants 

ORDER 

REC'D CUMS CLERKS OF(

MAR 27 '23 AMl0:23 

Before the court is a motion by plaintiff Russell Johansen to enforce a settlement agreement 

and a cross motion by defendants Mia Alibigi, Katie Johansen, Ryan Johansen, Tela Tedesco, and 

Betsy Wenk to enforce a partial settlement agreement. 

This is an action for equitable partition of certain real property in Standish. The property 

was owned by Nadine and Harold Johansen as joint tenants pursuant to a 1971 deed. Six of their 

surviving children and five heirs to two of their children who are now deceased are the parties to 

this action. 

Plaintiff Russell Johansen contends that his parents' joint tenancy was severed when his 

father filed for bankruptcy and that he obtained a one-half interest in the property based on a deed 

received from the Trustee in Bankruptcy. The defendants who have filed answers to his complaint 

contest the validity of Russell Johansen's deed from the Trustee in Bankruptcy and contend that 

each of the surviving children have a one-eighth interest in the property and that the heirs of the 

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 agreed to any settlement at the 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 on their failure to sign the settlement agreement. 

Subsequently, Attorney Sherman, on behalf of defendants Alibigi, Tedesco, Wenk, Katie 

Johansen, and Ryan Johansen, filed a motion to 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 of whether defendants Giarratano, Harrington, and 

Douglass Johansen signed on. That is the second motion that 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. In this case defendant Giarratano's objection to plaintiffs 

motion to enforce demonstrates the existence of a factual dispute as to whether she ever agreed to 

the settlement agreement outlined by the mediator in the Points of Agreement document prepared 

after the mediation. Giarratano did not file her pro se objection in the form of an 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 if a court found a settlement agreement to be 

valid, it would ordinarily enter judgment in accordance with the settlement. If a patty also seeks remedies 

for breach of a settlement agreement, those can be obtained by filing a supplemental complaint pursuant 

to M.R.Civ.P. 15(d) to add a breach of contract claim for violation of the alleged settlement agreement 

and proceeding on that claim. See 2022 ME 33 1124, 26. 

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Attorney Thomas Danylik conducted a mediation on Zoom with all parties present on April 

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 

document entitled "Points ofAgreement."1According to the Points ofAgreement, plaintiff Russell 

Johansen and one of the named defendants, Donna Reilly, were to pay all of the other parties a 

total of $300,000 in exchange for releases of all the other parties' interests in the property. 

The Points of Agreement document was sent to 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 of the pmties to this action. Omitted in both cases were the 

three remaining defendants, Coralee Giarratano, Kathryn Harrington, and Douglass 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 of plaintiffs behalf to enforce the settlement as to the three defendants who had not 

signed. That is the first of the two motions before the court. 

1Exhibit 1 to Plaintiffs Motion to Enforce Settlement Agreement. 

2 The record suggests that Attorney She1man also represents defendant Jennifer Ourfalian although 

neither the answer nor the cross-motion filed by Attorney Sherman specifically references her. 

3 Exhibit 3 to Plaintiff's Motion to Enforce Settlement Agreement. 

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instructed to do so, she would submit an affidavit repeating her denial that she had assented to the 

proposed settlement. 

Accordingly, plaintiffs motion to enforce the alleged settlement is denied upon the 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 of Harrington and Douglass Johansen to sign 

the settlement agreement - plaintiff may file a supplemental complaint adding a claim for breach 

of contract and seek an evidentiary hearing on that claim. The court would then consider whether 

to proceed on that claim or to combine that claim with the existing claims for trial. 

That leaves the separate motion to enforce filed on behalf of defendants Alibigi, Tedesco, 

Wenk, Katie Johansen, Ryan Johansen and Ourfalian (hereafter, "the Alibigi parties'). In effect, 

that motion seeks to enforce a partial settlement of this action on the theory that those defendants 

have agreed to the settlement and are entitled to the payments called for under the settlement even 

if plaintiffs litigation continues against Giarratano, Harrington, and Douglass Johansen. 

On this record there is a factual dispute as to the choice between two different 

understandings of the settlement. The mediator's Points of Agreement contemplates an overall 

settlement resolving 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 

executed by all defendants except Donna Reilly. On this record, that understanding 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. It also did not have signature lines for Giarratano, Harrington, and 

Douglass Johansen. On this record, therefore, the court cannot find that there was a meeting of the 

minds between plaintiff Russell Johansen on the one hand and the Alibigi parties on the other as 

to whether the alleged settlement called for an overall resolution of the action or whether plaintiff 

was separately agreeing to settle the case with Attorney Sherman's clients (and to pay them) even 

if the litigation would continue as to Giarratano, Harrington, and Douglass Johansen. 

The Alibigi patiies contend that Attorney Miscio' s affidavit in support of plaintiffs motion 

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 that the agreement Attorney Miscio believed had been reached at mediation 

would apply on a partial basis even if some defendants dissented and the settlement did not resolve 

the entire case. 

Moreover, as far as the court can tell, Attorney Miscio only represents plaintiff Russell 

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, 

Donna Reilly may nnow be aligned with plaintiff Russell Johansen under the proposed settlement 

in that it contemplates they would both retain an interest in the property. However, nothing stated 

by Attorney Miscio could bind Ms. Reilly. 

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The omission of Giarratano, 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 of Agreement. 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 Alibigi parties may file a supplemental counterclaim and crossclaim alleging breach of contract for violation of a partial settlement agreement. The court would 

then consider whether to proceed to an evidentiary hearing on that claim or to combine that claim 

with the existing claims for trial. 

The entry shall be: 

The motion to enforce settlement against the three 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. If the 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 in the docket by reference pursuant to Rule 79(a). 

Dated: March 27, 2023 

Thomas D. Warren 

Active Retired Justice, Superior Court 

Entered on the Docket: ~(f3p~fz'3 

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