Mancina

At issue in this appeal is the proper means of enforcing an alleged settlement agreement. Defendant and appellant Margaretha M. Hoar contends the “speaking motion” procedure employed by plaintiffs is improper and the motion should have been treated as a motion for summary judgment. We agree. We reverse the judgment entered in favor of plaintiffs after the trial court granted their motion to enforce the purported settlement agreement. We hold that a motion for summary judgment cannot be granted when, as here, a factual question exists concerning the existence, validity and terms of the alleged settlement.

I

Defendant and Franklin Rockwood Hoar were married in 1966 and separated in 1976. Defendant petitioned for and was granted a dissolution of marriage from Franklin Hoar. As part of that proceeding defendant received certain property pursuant to a property settlement agreement.

In 1977 plaintiffs commenced this litigation by complaint against defendant. Plaintiffs alleged that as a copartnership they had secured a judgment against Franklin Hoar and that Peter F. Mancina had individually secured a separate judgment against Franklin Hoar. Plaintiffs brought this action in…