Salce v. Wolczek ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
ANTHONY H. SALCE, SR. v. WALTER WOLCZEK
(SC 19144)
Palmer, Zarella, Eveleigh, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued May 20—officially released December 9, 2014
Robert M. Shields, Jr., with whom was Wesley W.
Horton, for the appellant (defendant).
Jeffrey J. White, with whom was Benjamin C. Jen-
sen, for the appellee (plaintiff).
Opinion
ESPINOSA, J. The principal issue in this certified
appeal is whether a contract between the parties is
ambiguous, requiring a trial to determine the parties’
intent. The trial court found that the contract at issue
unambiguously entitled the plaintiff, Anthony H. Salce,
Sr., to judgment as a matter of law, rendered summary
judgment in his favor, and awarded, among other relief,
postjudgment interest. The Appellate Court affirmed
the trial court’s judgment. Salce v. Wolczek, 141 Conn.
App. 528, 530, 61 A.3d 1177 (2013). On appeal to this
court, the defendant claims that the Appellate Court’s
decision was improper because (1) the contract at issue
was ambiguous, precluding summary judgment, and (2)
the trial court could not award postjudgment interest
after declining to award prejudgment interest. Because
we conclude that the contract language is unambiguous
and that the trial court properly awarded postjudgment
interest, we affirm the Appellate Court’s judgment.
The parties stipulated to the facts relevant to this
appeal. The plaintiff and the defendant each owned
50 percent of Anwalt, LLC (Anwalt). Anwalt owned
commercial real estate, an office park, in Trumbull
(premises). In April, 2007, the plaintiff agreed to sell
his 50 percent interest in Anwalt to the defendant. On
April 13, 2007, the parties executed a buyout agreement
that provided for a purchase price, due at closing, of
$1.75 million. The agreement also contained a provision
that required the defendant to pay the plaintiff an addi-
tion to the purchase price if specified conditions were
met (contingency clause).
The contingency clause, in essence, required the
defendant to pay to the plaintiff a contingent addition
to the purchase price if, at any point within one year
from the closing of the buyout agreement, the defendant
transferred any ownership interest in the premises to
a third party, for more than a certain amount of money.
The clause provides as follows: ‘‘Contingent Addition
to Purchase Price. If within one year of the closing
hereunder any ownership interest in the [p]remises
. . . is transferred to a ‘Non-Wolczek Person’ based on
a whole property value of more than [$3.5 million],
[the defendant] shall pay [the plaintiff] an additional
purchase price equal to one half the excess at the same
time as the transfer. The ‘excess’ is the amount by which
the whole property value for the transfer exceeds [$3.5
million]. The ‘whole value’ for any sale is the 100 [per-
cent] value on which any percentage interest being
transferred is based. For example, a one quarter interest
transferred for [$1 million] would equate to a whole
property value of [$4 million]. A ‘Non-Wolczek Person’
is someone other than [the defendant] or his immediate
family member or lineal descendant.’’
The parties closed on the sale under the buyout
agreement on May 31, 2007, starting the clock on the
one year period in the contingency clause.1 Less than
one year later, on March 29, 2008, the defendant entered
into a contract to sell the entire premises to a third
party, Brian Vaughn, who is a ‘‘ ‘[n]on-Wolczek [p]er-
son’ ’’ as defined in the contingency clause. The sales
price under the defendant’s contract with Vaughn
(Vaughn contract) was $5.5 million—$2 million more
than the minimum amount required to trigger the con-
tingency clause. The defendant and Vaughn closed on
the sale of the premises on July 1, 2008—approximately
one month after the one year period specified in the
contingency clause expired.2
Following the closing between the defendant and
Vaughn, the plaintiff filed an action against the defen-
dant alleging, among other claims, that the defendant
breached the buyout agreement by not paying the plain-
tiff a contingent addition to the purchase price as
required by the contingency clause.
The plaintiff later moved for summary judgment on
his breach of contract claim. He argued that the contin-
gency clause unambiguously required the defendant to
pay an addition to the purchase price because the
Vaughn contract constituted a transfer of an ownership
interest within the meaning of the contingency clause.
The plaintiff argued that (1) the contingency clause
required the defendant to pay an addition to the pur-
chase price ‘‘[i]f within one year of [May 31, 2007] any
ownership interest in the [p]remises . . . is transferred
to a ‘[n]on-Wolczek [p]erson’ ’’ for more than a specified
amount; (2) the defendant executed a contract with
Vaughn for the sale of the premises during the one year
period prescribed in the contingency clause; (3) the
value of the sale exceeded the amount specified in the
contingency clause; (4) the defendant’s execution of
the contract with Vaughn transferred equitable owner-
ship of the premises to Vaughn; and (5) the transfer
of equitable ownership qualifies as a transfer of ‘‘any
ownership interest’’ under the contingency clause.
The defendant objected, arguing that the contingency
clause was ambiguous, making its interpretation a ques-
tion of fact and requiring a trial. The defendant argued
that the contingency clause was unclear as to whether
it applied to a transfer of equitable ownership upon
signing a contract for sale, or to only a transfer of
legal title at closing. The defendant claimed that if the
contingency clause applied only to the transfer of legal
title at closing, then he did not owe an addition to the
purchase price because he did not close on his contract
with Vaughn until after the one year period in the contin-
gency clause had expired.
The trial court granted the plaintiff’s motion. The
trial court determined that the expansive phrase ‘‘ ‘any
ownership interest’ ’’ used in the contingency clause
included a transfer of equitable ownership through the
doctrine of equitable conversion. Under that doctrine,
equitable ownership passes to the purchaser of real
estate at the time a contract for sale is executed; legal
title is held in trust by the seller for the benefit of the
buyer and legal title passes at the closing on the sale.
See, e.g., Francis T. Zappone Co. v. Mark, 197 Conn.
264, 267, 497 A.2d 32 (1985). Relying on this doctrine,
the trial court determined that the execution of the
Vaughn contract, which occurred within the one year
period of the contingency clause, conveyed equitable
ownership to Vaughn, and thus qualified as a transfer
of an ownership interest, triggering the contingency
clause. The court rejected the defendant’s argument
that the contingency clause was ambiguous and could
refer, instead, to only the closing of a sale. The trial
court determined that the defendant’s interpretation
was ‘‘more restrictive’’ than the language used by the
parties and thus was not a reasonable alternative inter-
pretation.
The plaintiff withdrew the remaining counts of his
complaint and moved for final judgment on the breach
of contract count. The trial court granted the motion,
rendered judgment for the plaintiff, and awarded the
plaintiff his requested damages, attorney’s fees, offer of
compromise interest, costs, and postjudgment interest.
The trial court declined to award prejudgment interest.
A divided Appellate Court panel affirmed the trial
court’s judgment. Salce v. Wolczek, supra, 141 Conn.
App. 530. The defendant principally claimed on appeal
that the trial court improperly found the contingency
clause unambiguous, and that it improperly awarded
postjudgment interest after declining to award prejudg-
ment interest.3 Id. The Appellate Court majority agreed
with the trial court, however, and concluded that the
contingency clause unambiguously required the defen-
dant to pay to the plaintiff an addition to the purchase
price under the buyout agreement. Id., 533–35. The
Appellate Court majority also rejected the defendant’s
challenge to the postjudgment interest award. Id., 536–
38. The dissenting judge disagreed, concluding, instead,
that the contingency clause was ambiguous because it
was not clear that the parties intended the contingency
clause to apply to the transfer of an equitable ownership
interest. Id., 544–46 (Borden, J., dissenting).
The defendant then petitioned this court for certifica-
tion. We granted the petition for certification, limited
to the following questions: ‘‘(1) Did the Appellate Court
properly determine that the contract language unambig-
uously established that the mere execution of a contract
for sale, and not the actual closing on the sale, was
intended to trigger the defendant’s payment obligation?
(2) If the answer to the first question is in the [affirma-
tive], did the Appellate Court properly affirm the trial
court’s postjudgment interest award?’’4 Salce v. Wolczek,
308 Conn. 944, 66 A.3d 885 (2013).
I
The defendant chiefly claims that the language of the
contract is ambiguous. Consequently, he contends that
the trial court improperly concluded that the contin-
gency clause unambiguously required the defendant to
pay the plaintiff an addition to the purchase price.
We disagree.
At the outset, we note that the scope of our review
under the first certified question in this case is narrow
and requires us to determine only whether the language
of the contingency clause is ambiguous. We do not
decide which party has the better interpretation, only
whether there is more than one reasonable interpreta-
tion of the contract language at issue. If we conclude
that the language allows for more than one reasonable
interpretation, the contract is ambiguous and the trial
court’s decision to render summary judgment, based
on the conclusion that the contract is unambiguous,
must be reversed and the matter remanded for a trial.
Conversely, if the contract is unambiguous, its interpre-
tation and application is a question of law for the court,
permitting the court to resolve a breach of contract
claim on summary judgment if there is no genuine dis-
pute of material fact. Ramirez v. Health Net of the
Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).
If the contract is unambiguous, therefore, our inquiry
into its meaning ends, and we will affirm the judgment.
The principles that guide our consideration of whether
contract language is ambiguous are set forth in detail
in Yellow Book Sales & Distribution Co. v. Valle, 311
Conn. 112, 118–19, 84 A.3d 1196 (2014), Cruz v. Visual
Perceptions, LLC, 311 Conn. 93, 102–103, 84 A.3d 828
(2014), and Ramirez v. Health Net of the Northeast,
Inc., supra, 13.
Turning to the contract language at issue, the text of
the contingency clause sets out four prerequisites for
triggering an additional payment under that provision:
(1) if ‘‘within one year of the closing’’ of the buyout
agreement; (2) ‘‘any ownership interest in the [p]rem-
ises . . . is transferred’’ by the defendant; (3) ‘‘ ‘to a
[n]on-Wolczek [p]erson’ ’’; (4) ‘‘based on a whole prop-
erty value of more than [$3.5 million]’’; then the defen-
dant must pay the plaintiff an addition to the purchase
price. The parties agree that the execution of the
Vaughn contract satisfies the first, third, and fourth
requirements—the parties executed the contract less
than one year after the closing of the buyout agreement,
Vaughn is a ‘‘ ‘[n]on-Wolczek [p]erson,’ ’’ and the value
of the Vaughn contract was $5.5 million.
The parties’ dispute is limited to the second require-
ment. The trial court and the Appellate Court each
determined that the broad phrase ‘‘any ownership inter-
est . . . is transferred’’ unambiguously includes the
conveyance of equitable ownership through the execu-
tion of a contract for sale. The defendant agrees that
this interpretation is reasonable, but contends that the
text also supports another reasonable interpretation,
rendering the contingency clause ambiguous.
According to the defendant, the common understand-
ing of the phrase ‘‘any ownership interest . . . is trans-
ferred’’ could refer instead to only a transfer of legal
title and exclude a transfer of equitable ownership. The
defendant suggests that the average person would
understand that phrase to refer to the sale of the prop-
erty at a formal closing, not to the transfer of equitable
ownership through the mere execution of a contract
for sale. The defendant argues that the reason the par-
ties chose the otherwise broad phrase ‘‘any ownership
interest’’ was not that it would apply to a transfer of
equitable ownership, but instead to address the possibil-
ity that the defendant might transfer only a portion of
his ownership interest. Hence, the defendant interprets
the phrase ‘‘any ownership interest . . . is transferred’’
to mean any fraction of legal ownership interest is
transferred. To support his interpretation, the defen-
dant relies on the contingency clause’s definition of
‘‘whole property value . . . .’’ The contingency clause
defines ‘‘whole value’’ (though it omits the term ‘‘prop-
erty’’ in the definition) as ‘‘the 100 [percent] value on
which any percentage interest being transferred is
based. For example, a one quarter interest transferred
for [$1 million] would equate to a whole property value
of [$4 million].’’ (Emphasis added.) On the basis of this
language, the defendant contends that the reference to
a ‘‘percentage interest’’ transfer demonstrates that one
might reasonably interpret the broad phrase ‘‘any own-
ership interest’’ to address, not a transfer of equitable
ownership, but the possibility that the defendant might
transfer only a fraction of his legal ownership interest.
The defendant argues that ‘‘the most logical inference
is that the purpose of the [phrase] ‘any ownership inter-
est’ in the first sentence was to include a fractional
interest transferred as well as a whole interest.’’
In response, the plaintiff argues that the expansive
phrase ‘‘any ownership interest . . . is transferred’’ is
broad enough to be triggered by either a conveyance
of equitable ownership or a transfer of legal title. The
plaintiff contends that the defendant’s argument
restricts the meaning of the text and that, if the parties
intended to give the contingency clause the more lim-
ited meaning offered by the defendant, they needed to
do so expressly, but did not. Because the Vaughn con-
tract conveyed equitable ownership to a third party,
the plaintiff claims that the prerequisites for a purchase
price addition are met. We agree with the plaintiff.
The plain meaning of the phrase ‘‘any ownership
interest . . . is transferred’’ is broad and refers, as the
text states, to the transfer of any ownership interest,
regardless of the type or quantity of ownership interest
transferred. The defendant treats this phrase as if it can
refer only to either a transfer of equitable ownership
or a transfer of legal title, but not both. But the broad
language used by the parties does not support this
restrictive interpretation. The parties’ use of the word
‘‘any’’ to modify the phrase ‘‘ownership interest’’ in the
first sentence of the contingency clause gives the
resulting phrase an expansive meaning—one that we
will not restrict in the absence of a clear limitation in
the text. See, e.g., Ramirez v. Health Net of the North-
east, Inc., supra, 285 Conn. 14 (use of ‘‘ ‘any’ ’’ in phrase
‘‘ ‘any reason’ ’’ gives phrase broad and inclusive mean-
ing [emphasis omitted]); see also AvalonBay Commu-
nities, Inc. v. Zoning Commission, 280 Conn. 405, 413,
908 A.2d 1033 (2006) (legislature’s use of ‘‘ ‘any’ ’’ in
statute is ‘‘broad and all-inclusive’’ [emphasis omitted]);
Manifold v. Ragaglia, 272 Conn. 410, 422, 862 A.2d 292
(2004) (court will not provide ‘‘exception or limitation’’
to language made broad by use of word ‘‘ ‘[a]ny’ ’’
[emphasis omitted]); Gipson v. Commissioner of Cor-
rection, 257 Conn. 632, 640, 778 A.2d 121 (2001) (‘‘‘[t]he
word any in statutes is generally used in the sense of
all or every and its meaning is comprehensive in scope
and inclusive in range’ ’’); Fink v. Golenbock, 238 Conn.
183, 196, 680 A.2d 1243 (1996) (phrase ‘‘ ‘[a]ny dis-
putes’ ’’ is ‘‘all-embracing, all-encompassing and broad’’
[emphasis omitted]); New York, New Haven & Hartford
Railroad Co. v. Stevens, 81 Conn. 16, 21, 69 A. 1052
(1908) (‘‘[t]he word ‘any’ is too comprehensive to
receive so narrow a construction’’); New Haven Young
Men’s Institute v. New Haven, 60 Conn. 32, 39, 22 A.
447 (1891) (‘‘[t]he word ‘any,’ used as an adjective,
means ‘one out of several or many’ ’’).5 The text does
not distinguish between equitable or legal ownership,
or between a transfer of a fractional or whole interest.
Nothing in the contingency clause expressly limits its
application to transfers of legal ownership. Nor does
the contingency clause require the transfer to take place
at a formal closing. The parties used the term ‘‘closing’’
throughout the buyout agreement when they intended
to refer specifically to that event, but did not do so
in the text at issue. We presume that they did this
intentionally. See Tallmadge Bros., Inc. v. Iroquois Gas
Transmission System, L.P., 252 Conn. 479, 496–97,
505–506, 746 A.2d 1277 (2000); see also Bank of Boston
Connecticut v. Schlesinger, 220 Conn. 152, 159, 595 A.2d
872 (1991) (‘‘[t]he parties could have written such an
agreement, but they did not do so’’). In the absence of
any express limitation in its text, the contingency clause
is broad enough to include both a conveyance of equita-
ble ownership on the signing of a contract and the
passing of legal title at a closing. The defendant’s con-
veyance of equitable ownership through his execution
of the Vaughn contract consequently falls squarely
within the reach of the contingency clause.
The Vaughn contract conveyed equitable ownership
to Vaughn under the doctrine of equitable conversion.
Although labeled ‘‘somewhat esoteric’’ by the trial
court, equitable conversion is a ‘‘settled principle’’
under which ‘‘a contract for the sale of land vests equita-
ble title in the [buyer].’’ (Internal quotation marks omit-
ted.) FCM Group, Inc. v. Miller, 300 Conn. 774, 799, 17
A.3d 40 (2011); Lanna v. Greene, 175 Conn. 453, 461,
399 A.2d 837 (1978); see also Bayer v. Showmotion,
Inc., 292 Conn. 381, 415, 973 A.2d 1229 (2009); Francis
T. Zappone Co. v. Mark, supra, 197 Conn. 267; see gener-
ally Connecticut College for Women v. Groton, 123
Conn. 196, 201, 193 A. 873 (1937). ‘‘Under the doctrine
of equitable conversion . . . the purchaser of land
under an executory contract is regarded as the owner,
subject to the vendor’s lien for the unpaid purchase
price, and the vendor holds the legal title in trust for
the purchaser. . . . The vendor’s interest thereafter in
equity is in the unpaid purchase price, and is treated
as personalty . . . while the purchaser’s interest is in
the land and is treated as realty.’’ (Citations omitted;
internal quotation marks omitted.) Francis T. Zappone
Co. v. Mark, supra, 267. The doctrine is a legal fiction,
rooted in the principle that equity views a transaction
as being completed at the time the parties enter into
the transaction, irrespective of whether a formal
exchange of legal title has taken place. Id.; see also
Emery v. Cooley, 83 Conn. 235, 238–39, 76 A. 529 (1910);
1 D. Dobbs, Law of Remedies: Damages–Equity–
Restitution (2d Ed. 1993) § 4.3 (8), pp. 620–21. In the
context of real estate transactions, equitable ownership
in property transfers to the buyer when the parties sign
a contract for sale, even though the formal exchange
of legal title may not occur until a later date. See Francis
T. Zappone Co. v. Mark, supra, 267. The seller of the
land becomes a trustee, holding land in trust for the
buyer; the buyer holds the purchase money in trust for
the seller. See id.
As its name suggests, equitable ownership is a type
of ownership interest. Although the conveyance of equi-
table ownership does not grant an immediate right to
possession, it grants the purchaser other significant
rights in the property. See id., 267–68; 27A Am. Jur. 2d
520–21, Equitable Conversion § 13 (2008). For instance,
the purchaser obtains the right to specific performance
to force a seller to convey legal title according to the
contract for sale and to prevent the seller from con-
veying it to a third party. See Francis T. Zappone Co.
v. Mark, supra, 267–68 (equitable conversion gives pur-
chaser equitable title to property); see also 1 D. Dobbs,
supra, § 4.3 (8), p. 620. The purchaser also may mort-
gage his interest in the property, even in advance of a
formal closing. 27A Am. Jur. 2d, supra, § 13, p. 520. And
if the buyer dies before closing, the buyer’s interest in
the land, treated as a realty interest, becomes part of
the buyer’s estate. 1 D. Dobbs, supra, pp. 623–24.
Accordingly, by executing the Vaughn contract, the
defendant conveyed an ownership interest in the prem-
ises to Vaughn.
Furthermore, the defendant’s conveyance of equita-
ble ownership meets the contingency clause’s require-
ment that an ownership interest be ‘‘transferred.’’
Transfer is defined as ‘‘to convey from one person,
place, or situation to another’’ or ‘‘to cause to pass from
one to another . . . .’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 1993). In Francis T. Zappone Co.
v. Mark, supra, 197 Conn. 268, this court concluded that
a contract for the sale of land amounted to a transfer of
equitable ownership and triggered a party’s duty to pay
a brokerage commission on the sale. In reaching this
conclusion, this court rejected the argument that no
transfer took place even though the parties to the sale
had yet to pass ‘‘ ‘paper’ title . . . .’’ Id. This reasoning
applies equally to the present case. The defendant’s
execution of the Vaughn contract transferred equitable
ownership to Vaughn. No closing was necessary to
accomplish this transfer.6 Having conveyed equitable
ownership to Vaughn, the defendant transferred an
ownership interest to a ‘‘ ‘[n]on-Wolczek [p]erson’ ’’ and
did so within the one year period in the contingency
clause, unambiguously triggering the defendant’s obli-
gation to pay an addition to the purchase price.
The defendant’s alternative interpretation unreason-
ably restricts the language of the contingency clause.
The text does not limit the meaning of the phrase ‘‘any
ownership interest’’ to only transfers of legal ownership
interests, whether whole or fractional, to the exclusion
of all other types of ownership interests. If the parties
intended to limit the scope of the language they chose
for their agreement, they needed to state that limitation
expressly. See, e.g., Tallmadge Bros., Inc. v. Iroquois
Gas Transmission System, L.P., supra, 252 Conn. 496;
Herbert S. Newman & Partners, P.C. v. CFC Construc-
tion Ltd. Partnership, 236 Conn. 750, 759, 674 A.2d
1313 (1996); Hatcho Corp. v. Della Pietra, 195 Conn.
18, 22, 485 A.2d 1285 (1985). Furthermore, the use of
an example to explain how a provision applies in a
particular instance does not, itself, restrict the meaning
of that provision, especially one intentionally made
broad by the use of the word ‘‘any.’’ See, e.g., United
States v. National City Lines, Inc., 337 U.S. 78, 81, 69
S. Ct. 955, 93 L. Ed. 1226 (1949) (‘‘Obviously, an example
is not a complete catalogue. The use of an example
implies no purpose to restrict the meaning of the statu-
tory phrase ‘any civil action’ precisely to the illustration
selected.’’).7 We will not insert limitations into a con-
tract when the parties did not do so themselves. Tall-
madge Bros., Inc. v. Iroquois Gas Transmission
System, L.P., supra, 501–502. This is especially so when,
as here, the agreement is between sophisticated com-
mercial parties represented by counsel. Id., 496–97, 506.
In these circumstances, we presume the parties used
definitive language to describe their agreement. Id.,
497.8
As further evidence that the parties intended to refer
only to the passing of legal title at closing, the defendant
cites to the portion of the contingency clause requiring
the addition to the purchase price to be paid to the
plaintiff at the same time as the transfer to a third party.
The defendant posits that this provision ensures that
he would have cash from the proceeds of the sale of
his interest to pay the plaintiff any additional amount
owed. The defendant claims it would be unreasonable
to require him to pay the plaintiff when he has not yet
received payment from the third party or if the sale to
the third party falls apart before closing. According to
the defendant, ‘‘[t]o require [him] to pay the plaintiff
his proportionate share of a nonexistent profit seems
highly unlikely.’’ We disagree.
The defendant’s receipt of funds from a third party
is irrelevant to his obligations under the contingency
clause. Nothing in the contingency clause makes the
defendant’s obligation to pay the plaintiff contingent
on his receipt of payment from a third party at closing.
Rather, the defendant must pay the plaintiff at the time
he transfers any ownership interest to a third party,
irrespective of whether he has been paid for that trans-
fer. And the contingency clause allows for the possibil-
ity that the defendant might not have received sufficient
cash from his transfer to a third party to cover the
addition to the purchase price owed to the plaintiff.
The contingency clause requires that the addition to
the purchase price be calculated based on the ‘‘whole
property value’’ of a transfer, as if the defendant had
transferred his entire interest, even if the defendant
transfers only a small fraction of his interest in the
premises. This means that the defendant could receive
only a small amount of money for his transfer, but still
owe the plaintiff a much larger sum. The plaintiff’s brief
provides an example. The defendant could trigger the
contingency clause by transferring only 1 percent of
his interest. The contingency clause would, however,
require the parties to determine the amount owed to the
plaintiff by assuming that the defendant had transferred
100 percent of his interest. In that scenario, the amount
the defendant receives for the 1 percent transfer would
be only a small portion of what he owes to the plaintiff
based on the ‘‘whole property value,’’ requiring the
defendant to use his own funds to pay the plaintiff
the entire amount due under the contingency clause.
Despite this possibility, the contingency clause does
not make the defendant’s additional payment obligation
contingent on how much he receives for his transfer
to a third party or when he receives that payment,
contradicting the defendant’s interpretation.
In addition, the defendant’s interpretation that the
contingency clause is a profit sharing provision is prem-
ised on a misunderstanding of its apparent purpose.
The payment due under the contingency clause is not,
as the defendant suggests, a share of any profit from the
defendant’s transfer, but an adjustment of the original
buyout price based on the defendant’s acknowledgment
of a market price greater than $3.5 million within one
year of the buyout. The text of the contingency clause
and its relationship to the other provisions in the con-
tract make that clear. For instance, the parties placed
the contingency clause in the section of the contract
entitled ‘‘Purchase Price,’’ and labeled it ‘‘Contingent
Addition to Purchase Price.’’ Also, the text of the contin-
gency clause expressly refers to the payment due under
that clause as ‘‘an additional purchase price . . . .’’
By contrast, the contingency clause lacks features that
even the defendant acknowledges would ordinarily be
included if it were a profit sharing provision. If the
parties intended it to serve as a profit sharing provision,
one would expect that provision to allow the plaintiff
to share only in a portion of the profit only from the
quantity of the defendant’s interest that he actually sold.
As explained previously, the contingency clause, how-
ever, requires the defendant to pay the plaintiff an addi-
tion to the purchase price based on the ‘‘whole property
value,’’ irrespective of whether the defendant actually
sells his entire interest or only a small fraction. The
contingency clause does not allow the defendant, when
calculating the amount owed to the plaintiff, to make
any adjustment or deduction for his costs associated
with the sale of his ownership interest. Because the
contingency clause is an adjustment to the purchase
price, the additional amount due under that clause is
part of the consideration owed to the plaintiff for the
defendant’s original purchase of the plaintiff’s share
of Anwalt. It is not a share of profits on a later sale.
Accordingly, the prerequisites of the clause are satisfied
once the defendant acknowledges a greater market
value by transferring an interest to a third person for
an amount greater than that specified in the contingency
clause. The additional payment then becomes due to
the plaintiff at the time of the transfer. Whether and
when the defendant receives payment from a third party
for any transfer is irrelevant to the purpose of the
clause.9
Going beyond the contract language, the defendant
cites testimony by each party that reveals they did not
have a transfer of equitable ownership in their minds
when they chose the language for the buyout
agreement. This evidence is irrelevant and inadmissible
to vary the meaning of unambiguous contract language.
We do not look to the parties’ subjective intentions
when interpreting a contract. C & H Electric, Inc. v.
Bethel, 312 Conn. 843, 860, 96 A.3d 477 (2014). Nor may
we look to evidence outside of the contract to vary the
meaning of unambiguous language. Yellow Book Sales &
Distribution Co. v. Valle, supra, 311 Conn. 119. Instead,
we must discern the parties’ intent, in the first instance,
from the language they used and not the language we
think they might have chosen if confronted with this
particular issue. See Tallmadge Bros., Inc. v. Iroquois
Gas Transmission System, L.P., supra, 252 Conn. 500,
506; see also Williams v. Lilley, 67 Conn. 50, 59, 34 A.
765 (1895) (‘‘[w]e assume no right to add a new term
to a contract, though it were clear that had the attention
of the parties been called to it in all probability it would
have been inserted’’).
The parties chose broad language that unambigu-
ously includes a conveyance of equitable ownership.
We presume that they were aware of existing legal
doctrine and the legal consequences of the language
they chose for their contract. See, e.g., Hatcho Corp.
v. Della Pietra, supra, 195 Conn. 21; LMK Enterprises,
Inc. v. Sun Oil Co., 86 Conn. App. 302, 307, 860 A.2d
1229 (2004). The defendant’s attempts to restrict the
meaning of that language simply are not supported by
the text. We will not trammel the sweeping language
chosen by the parties to arrive at a more limited mean-
ing. See generally Yellow Book Sales & Distribution
Co. v. Valle, supra, 311 Conn. 119; Cruz v. Visual Percep-
tions, LLC, supra, 311 Conn. 102–103; Tallmadge Bros.,
Inc. v. Iroquois Gas Transmission System, L.P., supra,
252 Conn. 506.
Accordingly, the Appellate Court properly deter-
mined that the unambiguous contract language entitled
the plaintiff to summary judgment on his breach of
contract claim.
II
The defendant also claims that the trial court improp-
erly awarded the plaintiff postjudgment interest even
though the trial court had already decided that prejudg-
ment interest was unwarranted. In support of this claim,
the defendant asserts that because ‘‘there was no sub-
stantive difference’’ between the ‘‘factors and evidence’’
considered by the court with respect to its prejudgment
and postjudgment interest decisions, the court could
not properly award one type of interest after refusing
to award the other. We disagree.
The defendant’s argument is flatly contradicted by
the trial court’s decision. The trial court declined to
award prejudgment interest after concluding that the
defendant pursued his defense of the plaintiff’s claims
in good faith. The court expressly determined, however,
that the balance of equities changed once the trial court
resolved the parties’ dispute in the plaintiff’s favor.
Accordingly, the reason for the different decisions
regarding prejudgment and postjudgment interest was
the intervening conclusion by the trial court that the
plaintiff was entitled to payment. Although the defen-
dant expressed that he would continue to press his
good faith defense on appeal, the trial court was well
within its right to conclude that the balance of equities
had changed in the plaintiff’s favor. Whether to award
prejudgment and postjudgment interest for the deten-
tion of money under General Statutes § 37-3a is a deci-
sion left to the discretion of the trial court, and requires
the trial court to consider whether an award of interest
is fair and equitable under the circumstances. See, e.g.,
Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 99–100,
952 A.2d 1 (2008). The trial court’s discretion in award-
ing interest is quite broad, and the court may consider
‘‘whatever factors may be relevant to its determination.’’
DiLieto v. County Obstetrics & Gynecology Group,
P.C., 310 Conn. 38, 54, 74 A.3d 1212 (2013). The assertion
of a good faith defense is one factor that the court may
consider, but it does not bar an award of interest. See,
e.g., Sosin v. Sosin, 300 Conn. 205, 229–35, 14 A.3d
307 (2011). The defendant’s continued assertion of his
defense on appeal, therefore, does not prevent the trial
court from exercising its discretion to award interest,
especially in light of its decision that the plaintiff is
entitled to payment on the debt owed. DiLieto v. County
Obstetrics & Gynecology Group, P.C., supra, 60 n.18
(‘‘the purpose of postjudgment interest is not to punish
defendants but, rather, to compensate plaintiffs for the
loss of the use of their money, after the fact finder has
determined that the money is due and owing, during
the pendency of any appeals’’). The trial court thus
acted well within its discretion when it awarded the
plaintiff postjudgment interest.10
The judgment of the Appellate Court is affirmed.
In this opinion ZARELLA, EVELEIGH and McDON-
ALD, Js., concurred.
1
After the closing of the buyout agreement, the defendant caused Anwalt
to transfer ownership of the premises to a family owned limited liability
company. This transfer did not trigger the contingency clause and does not
otherwise impact this appeal.
2
The defendant and Vaughn each used limited liability companies to
transfer and hold their respective ownership interests in the premises, but
the parties agree that their use and the identity of those entities are irrelevant
to the issues in this appeal. For simplicity, we refer to the defendant and
Vaughn, rather than the respective entity each of them used, when discussing
their roles in the transactions at issue.
3
The defendant also challenged the trial court’s calculation of damages,
but the Appellate Court upheld the trial court’s decision; Salce v. Wolczek,
supra, 141 Conn. App. 530; and the defendant has not appealed to this court
on that basis.
4
The second certified question originally stated, in part: ‘‘If the answer
to the first question is in the negative . . . .’’ (Emphasis added.) Salce v.
Wolczek, 308 Conn. 944, 66 A.3d 885 (2013). The question should have used
‘‘affirmative’’ in place of ‘‘negative,’’ and we have edited the certified question
accordingly. See State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010).
5
We agree with the dissenting justices that the meaning of the term ‘‘any’’
can vary depending on its context. See Ames v. Commissioner of Motor
Vehicles, 267 Conn. 524, 531, 839 A.2d 1250 (2004) (‘‘any’’ can mean, among
other things, ‘‘all, every, some or one’’ [internal quotation marks omitted]).
In the present case, however, the parties used ‘‘any’’ as an indeterminate
adjective that modifies the phrase ‘‘ownership interests.’’ In this context,
the word ‘‘any’’ tells the reader which ownership interest transfers will
trigger the contingency clause. The answer is that the transfer of ‘‘any
ownership interest’’ will trigger it, without any limitation provided for the
type or quantity of ownership interest transferred. See Webster’s Third New
International Dictionary (2002) (defining ‘‘any’’ as ‘‘one or some indiscrimi-
nately of whatever kind’’).
6
We note that preconditions in a sales contract can delay the transfer of
equitable interest until those conditions are met. See 14 Powell on Real
Property (M. Woolf ed., 2007) § 81.03 [1], p. 81-86. In the present case,
however, the defendant has not claimed that there were preconditions in
the Vaughn contract that prevented the transfer of equitable ownership
during the one year period in the contingency clause.
7
At oral argument before this court, the defendant, for the first time, also
suggested that the word ‘‘sale’’ that appears in the contract’s definition of
‘‘whole value’’ supports his interpretation. The defendant argued that one
might interpret the term ‘‘sale’’ to refer to the exchange of money and legal
title at a formal closing. But the common meaning of that term, according
to its dictionary definition, contradicts the defendant’s interpretation. Web-
ster’s Third New International Dictionary (2002) most relevantly defines
‘‘sale’’ as ‘‘a contract transferring the absolute or general ownership of
property from one person or corporate body to another for a price . . . .’’
(Emphasis added.) As such, and contrary to the defendant’s claim, the use
of the word ‘‘sale’’ in the contingency clause does not demonstrate an intent
to limit the meaning of the broad phrase ‘‘any ownership interest . . . is
transferred’’ to only the transfer of legal title at closing.
8
The dissenting justices agree with the defendant that the phrase ‘‘any
ownership interest’’ is ambiguous because the parties might have intended
it to mean a transfer of any fraction of legal ownership interest.
We disagree that this interpretation is tenable in light of the parties’ failure
to include this limitation in their contract. The dissent observes that ‘‘the
contingency clause is replete with language expressly addressing fractional
interests.’’ (Emphasis in original.) This fact demonstrates that the parties
were well aware of the notion of fractional interest transfers when drafting
their contract, but nevertheless chose not to limit the scope of the phrase
‘‘any ownership interest’’ to only a transfer of any fraction of legal ownership
interest. We presume that the omission of limiting language (and the parties’
use of the broader phrase ‘‘any ownership interest’’) was intentional. See
Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252
Conn. 497; Bank of Boston Connecticut v. Schlesinger, supra, 220 Conn. 159.
9
The dissenting justices express concern that requiring payment from the
defendant under the contingency clause even if his sale to a third party
never comes to fruition would lead to an ‘‘onerous and unusual result’’ that
would be inequitable to the defendant. The dissent is concerned that ‘‘an
event subsequent to the execution of the sales agreement could reveal that
the fair market value is substantially less than the stated purchase price
(i.e., environmental contamination revealed upon inspection), causing the
purchaser to renounce the sales agreement’’ but that ‘‘the defendant still
would be liable under the contingency clause to pay a percentage of the
purchase price.’’
We do not share these concerns. The contingency clause leaves the defen-
dant free to choose whether and under what conditions he will transfer an
ownership interest in the premises to a third party. Nothing in the contin-
gency clause requires the defendant to make such a transfer nor does it
dictate the terms of a transfer. Thus, if the defendant, mindful of his contin-
gency clause obligations, were concerned about a potential latent condition
interfering with a transfer, he could protect himself by evaluating the prem-
ises before entering into a sales contract. The defendant could also negotiate
for protections from the buyer in the event a latent condition is discovered.
The defendant could avoid any such risk altogether by simply choosing not
to transfer any ownership interest in the premises within the one year period
of the contingency clause. Either way, the contingency clause does not
prevent the defendant, a sophisticated business person represented by coun-
sel, from protecting himself from an inequitable result.
In any event, this issue is largely academic in light of the facts of this
case. The defendant’s contract with Vaughn closed as anticipated. The defen-
dant has not claimed that he did not receive full consideration under the
Vaughn contract.
We note, however, that inequities to the plaintiff would arise under the
defendant’s alternative interpretation. Interpreting the contingency clause
to apply only to the transfer of legal title at closing would allow the defendant
to enter into a contract to sell the premises for a value sufficient to trigger
the contingency clause, but to avoid having to pay the plaintiff anything
simply by choosing a closing date after the expiration of the one year period
in the contingency clause.
10
The defendant also claims that the trial court’s award of postjudgment
interest at a rate of 8 percent is ‘‘punitive and excessive . . . .’’ This claim,
however, was inadequately briefed and we decline to consider it. The defen-
dant’s briefing on this argument is limited to a paragraph that points to
lower prevailing federal interest rates over the relevant time period and
notes that the Appellate Court recently upheld an interest award of 2 percent
in Sikorsky Financial Credit Union, Inc. v. Butts, 144 Conn. App. 755,
762–63, 75 A.3d 700, cert. granted, 310 Conn. 931, 78 A.3d 857 (2013). The
defendant’s brief does not, however, provide any authority or substantive
analysis to support a claim that the trial court was bound to apply federal
interest rates when awarding interest. Consequently, we have not considered
this claim. See Connecticut Coalition Against Millstone v. Connecticut
Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).