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STATE OF VERMONT 

ENVIRONMENTAL COURT 

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In re Smith 4-Lot Subdivision Final Plat { 

 (Appeal of Pauze) { Docket No. 244-12-09 Vtec 

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Decision on Motion to Approve and Enforce Settlement Agreement 

E. Francis Pauze, Jr. (“Appellant”) has filed a motion to approve and enforce a 

settlement agreement executed after court-ordered mediation in July 2010. The 

motion followed an appeal of municipal permits granted to Howard Smith (“Applicant”) 

for a four-lot subdivision in Poultney, Vermont. Applicant opposes the motion to 

approve and enforce, claiming that the Court lacks jurisdiction to enforce the 

settlement agreement and that the agreement is not binding. 

In this proceeding, Appellant is represented by John C. Thrasher, Esq. and 

Applicant is represented by Phyllis R. McCoy-Jacien, Esq. 

Factual Background 

For the sole purpose of putting the pending motion in context, we recite the 

following facts, which we understand to be undisputed unless otherwise noted: 

1. By his appeal to this Court, Appellant alleges that the Town of Poultney Design 

Review Board (“DRB”), in a decision issued November 18, 2009, failed to properly 

apply the Town of Poultney Subdivision Regulations (“Regulations”) to Applicant’s 

subdivision application and that this Court, in its de novo review, should deny the 

pending application. 

2. Applicant’s proposed four-lot subdivision is of a 4.63± acre parcel located at 122 

On the Green in Poultney, in the Rural Residential 1-Acre Zoning District. The parcel 

contains one existing house. 

3. On July 29, 2010, as a result of court-ordered mediation, the parties reached an 

agreement resolving “all issues raised or that could have been raised” in this appeal. 

With the assistance of a mediator, the parties reduced their agreement to writing in a 

document entitled “Settlement Agreement.” The mediator filed a copy of this 

Settlement Agreement with the Court as an exhibit to the parties’ Alternative Dispute 

Resolution Report which is dated July 30, 2010 and was filed August 2, 2010. 
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4. Both parties and their respective attorneys signed the Settlement Agreement. 

5. The Settlement Agreement states that the parties will file a stipulation so that the 

Court may enter an order affirming the DRB’s November 18, 2009 decision. See 

Settlement Agreement at 1. 

6. The Settlement Agreement contains an “Acknowledgement of Arbitration” term, 

whereby the parties relinquish their rights to further litigate this dispute and commit 

to resolve any further disputes through arbitration. See id. at 2. 

7. Paragraph 8 of the Settlement Agreement states that the parties will cooperate and 

sign all documents necessary to implement their Agreement. Id. 

8. Paragraph 9 of the Settlement Agreement represents that the parties intend their 

Agreement “to resolve all issues raised or that could have been raised in” this pending 

appeal. Id. 

9. The parties left the mediation session, after having signed the Settlement 

Agreement, with the understanding that further documents, incorporating the terms of 

the Agreement, would be completed by each party and filed with this Court, so that 

the Court could then sign an order disposing of this appeal based on those 

documents. 

10. Within a matter of days after the parties signed the Settlement Agreement, 

Appellant contacted Applicant with suggested proposals to resolve outstanding 

landscaping and septic siting issues. See id. at 1.

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11. By December 7, 2010, Appellant made efforts to file the anticipated documents 

with the Court. 

12. At a telephonic conference with the Court on March 31, 2011, Applicant first 

expressed his unwillingness to file the anticipated documents. Appellant thereafter 

filed the pending motion to have the parties’ Settlement Agreement enforced by this 

Court. 

 

 

1 While it is not explicitly stated, these provisions make clear that the parties agreed to “negotiate in good 

faith the location and type of [additional landscaping] plantings,” Settlement Agreement at 1, ¶ 2, and would 

“jointly agree” on whether the “state approved replacement leach field for Lot 1 may remain where it is.” Id. 

at 1, ¶ 5. After the parties signed the Settlement Agreement, the Court inquired as to the status of these 

outstanding items. By letter dated August 26, 2010 and filed with the Court on August 30, 2010 (with a copy 

provided to Applicant’s attorney), Appellant’s attorney represented that the parties were working to resolve 

these final items, but that they might need until October 15 to complete the engineering and other 

preparatory work. During a status conference with the Court on October 18, 2010, both attorneys 

represented that the settlement was still moving forward. 
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Discussion 

Pending before the Court is Appellant’s motion to approve and enforce the 

Settlement Agreement that Appellant and Applicant executed after court-ordered 

mediation in July 2010. Appellant argues that the Agreement is enforceable by the 

Court because it was fully executed by both parties and their attorneys while the 

matter was part of the Environmental Division’s exclusive jurisdiction and because 

Appellant is now simply requesting the Court’s approval of that Agreement. 

Applicant argues, in opposition, that this Court lacks jurisdiction to enforce the 

parties’ Settlement Agreement. Applicant also asserts that the Agreement was not 

intended to be binding on the parties and that the Court cannot consider it so because 

the settlement has not yet been approved by the Court and incorporated into a 

judgment order. Applicant’s final argument is that Appellant delayed in complying 

with the terms of the Agreement, thereby breaching the Agreement. 

For the reasons detailed below, we reject Applicant’s three arguments and agree 

with Appellant. We conclude that this Court does have the authority to recognize and 

enforce the Settlement Agreement, which was reached by the parties in the course of 

court-ordered mediation; that the Agreement reached by the parties is binding upon 

them; and that the complained-of delays were not so significant as to constitute a 

breach of the parties’ Agreement.

I. Whether the Environmental Division has jurisdiction over the Settlement 

Agreement 

A trial court has jurisdiction to enforce a settlement agreement in an action still 

pending and active on the court’s docket, even when the terms of the agreement are 

not yet incorporated into an order. See Petition of Telesystems Corp., 148 Vt. 411, 

412–13 (1987). However, the Telesystems Court established that when asked to 

enforce such an agreement, a trial court retaining jurisdiction must review the terms 

of the settlement agreement prior to enforcement, so as to “minimize the possibility 

that unconscionable terms of settlement are accorded the force and effect of a 

judgment order.” Id. at 413. 

We regard Telesystems as both confirming that this Court is an appropriate 

forum to enforce the challenged Settlement Agreement and requiring that the Court 

first review whether the Agreement’s terms are conscionable before enforcing it. The 

fact that this Agreement was a result of court-ordered mediation lends additional 
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support to our conclusion that we have jurisdiction to enforce this Agreement.2 We 

also note that this Court has jurisdiction to conduct any necessary evidentiary 

hearings to resolve disagreements related to an agreement’s formation or 

consummation. 

Turning to the Agreement itself, we note that it was entered into specifically to 

resolve the disputed issues that arose in this Environmental Division docket. The 

Settlement Agreement explicitly memorializes that the parties agreed to resolve the 

disputes in this appeal. The Settlement Agreement was included in a mediation report 

submitted on a form that is routinely used by this Court as part of mediation 

proceedings. See 12 V.S.A. § 5717(a)(1) (a signed mediation agreement is not 

privileged); 12 V.S.A. § 5718(a) (mediators may disclose a mediation report and signed 

mediation agreement). For these reasons, the Settlement Agreement at issue is part of 

the open proceedings before this Court. 

We note that the alternative of requiring the parties to litigate this enforcement 

request in the Civil Division would duplicate the parties’ expenditures and be a waste 

of judicial resources because the matter can be resolved now, in the currently pending 

proceeding. See Manosh v. Manosh, 160 Vt. 634, 634–35 (1993) (mem.) (indicating 

that it “would be unreasonable and a waste of judicial resources” to require a party to 

a settlement agreement to seek review and enforcement of the agreement in a different 

court proceeding while the dispute was still pending in the family court’s jurisdiction). 

We therefore conclude that we have jurisdiction to entertain Appellant’s request for 

review of the parties’ Settlement Agreement, and that we have the duty to do so in 

these still-open proceedings so as to minimize the expenditure of resources by the 

parties and the Court. 

II. Whether the Settlement Agreement is binding 

The next challenge Applicant raises is that the Settlement Agreement is not 

binding on the parties. In his memorandum in opposition, Applicant asserts that the 

parties had no intention of being bound by the Settlement Agreement. However, we 

find no support for this assertion in the facts presented. 

Intent to be bound is a question of fact. Catamount Slate Products, Inc. v. 

Sheldon, 2003 VT 112, ¶ 17, 176 Vt. 158 (2003) (citing Bixler v. Bullard, 172 Vt. 53, 

 

2 That is not to say that court-ordered mediation is a pre-condition of a trial court having jurisdiction to 

consider a request to enforce a settlement reached in the course of litigation. 
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58 (2001)). An agreement need not state that it is legally binding to be so. See 

Restatement (Second) of Contracts § 21 (“Neither real nor apparent intention that a 

promise be legally binding is essential to the formation of a contract. . . .”). We must 

turn to the terms of the agreement, as written, to determine whether the parties 

intended to be bound. See Camara v. Camara, 2010 VT 53, ¶ 14 (finding that the 

parties intended to be bound when both the offer and acceptance were in writing); 

Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 44–45 (1990) (“The law presumes the 

parties intended to be bound by the plain and express language of their contracts as 

they are written.”). 

We find that there is ample evidence in the terms of the Settlement Agreement 

itself that both Appellant and Applicant intended to be bound by it. The Settlement 

Agreement specifically recites that the parties, who both signed the document, 

intended “to resolve all issues raised or that could have been raised in” this pending 

appeal and to arbitrate any future disputes. The fact that the parties agreed to an 

arbitration clause reinforces the notion that the parties had a desire to be bound by 

their agreement. The Settlement Agreement also contains no term suggesting that the 

parties did not intend to be so bound. 

Appellant has referred to these terms in the Settlement Agreement to provide 

the evidentiary foundation that it is binding on the parties. In contrast, Applicant has 

failed to file an affidavit or offer any evidence to support his bald assertion that the 

parties had no intention to be bound by the Settlement Agreement. Without reference 

to such evidence, we view the material fact of whether the parties intended to be 

bound as essentially undisputed by Applicant here.3 We therefore conclude, based on 

the terms of the Settlement Agreement, that the parties intended the Agreement to be 

binding. 

III. Whether Appellant breached the Settlement Agreement

Applicant’s final argument is that Appellant delayed in complying with the 

terms of the Agreement and that his delay constitutes a breach of the parties’ 

 

3 We are reminded that unsupported assertions in a legal memorandum submitted in opposition to a motion

for summary judgment are not to be regarded as support for the conclusion that there are facts in dispute. 

See V.R.C.P. 56(e) (party opposing a summary judgment motion “may not rest upon the mere allegation or

denials of the [moving] party’s pleadings”); Webb v. Leclair, 2007 VT 65, ¶ 2, 182 Vt. 559 (2007) (mem.). 

While Appellant’s pending motion is not specifically titled as a motion for summary judgment, we believe this 

rule provides relevant guidance.
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Settlement Agreement. We note that a party may be relieved of her contractual 

obligations following a breach only when the breach by her contractual counterpart is 

“material.” See Brady v. CU York Ins. Co., No. 2005-323, slip op. at 2 (Vt. March, 

2006) (unpublished mem.) (citing Malladi v. Brown, 987 F.Supp. 893, 905 (M.D. Ala. 

1997) and Restatement (Second) of Contracts § 237). For a breach to be material, it 

must cause a substantial injury to the party seeking relief from her obligations, id. 

(citing Malladi, 987 F.Supp. at 905), although contracting parties can define what 

constitutes material breach, essentially identifying for themselves what would 

constitute a substantial injury. See McGee Const. Co v. Neshobe Dev., Inc., 156 Vt. 

550, 554 (1991). 

In the record before us, we find no evidence of a delay by Appellant that would 

constitute a material breach. The parties signed their Settlement Agreement on July 

29, 2010. The record reflects that within a matter of days, Appellant contacted 

Applicant with suggested proposals to resolve the outstanding landscaping and septic 

siting issues. Also, by December 7, 2010, Appellant made efforts to file a stipulation 

with the Court that would have brought these proceedings to a close and allowed 

Applicant to acquire his permit. 

Further, Applicant has also made no allegations that he suffered a substantial 

injury from any alleged delays by Appellant. Applicant had options available if he was 

concerned with Appellant’s pace; for instance, he could have relied on the arbitration 

clause in the Agreement to convene arbitration to resolve the remaining disputes. 

Moreover, the language of the Settlement Agreement has no set timeline for completion 

and no assertion that “time is of the essence.” Thus, the Agreement itself does not 

appear to emphasize delay as a particular concern; there is no term indicating that 

any delay constitutes a material breach of the Agreement. 

Based on the lack of evidence of any delay by Appellant, any substantial injury 

to Applicant, or any applicable terms in the Settlement Agreement concerning delay, 

we conclude that Appellant did not breach the Settlement Agreement in a material 

way. Nor is there any evidence in the record of a non-material breach by Appellant. 

We further note that to abandon the parties’ settlement now would only mean 

more litigation and delay. The record indicates that Appellant remains ready to 

consummate the parties’ Agreement, thereby concluding these disputed proceedings. 
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Enforcement of the Settlement Agreement is the most appropriate way to avoid further 

delay for Appellant and Applicant. 

IV. Approval and enforcement of the Settlement Agreement 

As discussed above, this Court may only approve and enforce a settlement 

agreement once it has determined that enforcement of its terms would not be 

unconscionable. See Telesystems, 148 Vt. at 413. Applicant has made no allegation 

that this Agreement is unconscionable. Even so, we have completed our own review, 

and we cannot find any term within the parties’ Settlement Agreement that could be 

deemed unconscionable. 

Moreover, the policy promoting compromise through the voluntary settlement of 

litigation is well-established in our case law. See, e.g., Telesystems, 148 Vt. at 413–

14. In the absence of a credible allegation that the settlement terms are 

unconscionable, we are unwilling to disturb the parties’ Settlement Agreement. We 

therefore are obliged to approve and enforce the Settlement Agreement reached by the 

parties on July 29, 2010.

Conclusion

For the reasons detailed above, we GRANT Appellant’s motion to approve and 

enforce the parties’ Settlement Agreement. That is, we find that this Court has 

jurisdiction to enforce the Agreement and hereby do so. We further conclude that the 

Settlement Agreement is binding upon the parties, and we approve the Agreement’s 

terms as conscionable. We also conclude that there was no material breach of the 

Agreement that would relieve either party from his contractual obligations. 

The Court reminds both parties that they have bound themselves to resolve 

further disputes through arbitration, pursuant to their Agreement. 

A Judgment Order accompanies this Decision. This completes the current 

proceedings before this Court. 

 Done at Berlin, Vermont this 27th day of September, 2011. 

 

 Thomas S. Durkin, 

 Environmental Judge