Weiss v. Smulders ( 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.
******************************************************
RANDALL WEISS ET AL. v. MICHAEL D.
SMULDERS ET AL.
(SC 19151)
(SC 19158)
Palmer, Zarella, Eveleigh, McDonald and Beach, Js.
Argued March 19—officially released August 26, 2014
Benjamin M. Wattenmaker, with whom, on the brief,
was John M. Wolfson, for the appellants in Docket No.
SC 19151 and the appellees in Docket No. SC 19158
(plaintiffs).
Kirk D. Tavtigian, with whom, on the brief, was
George M. Purtill, for the appellees in Docket No. SC
19151 and the appellants in Docket No. SC 19158
(defendants).
Opinion
McDONALD, J. These appeals arise out of a dispute
between two specialty food businesses regarding the
scope of their obligations under a distribution
agreement and the legal effect of oral promises regard-
ing the formation of a joint venture between the busi-
nesses. The plaintiffs, Randall Weiss and his company,
Gourmet and Specialty Food Works, LLC (Food Works),
commenced this action against the defendants, Michael
D. Smulders and his company, Garden of Light Natural
Food Markets, Inc. (Garden of Light), seeking to recover
money damages for, inter alia, breach of an oral contract
and promissory estoppel for failing to form the joint
venture. The defendants filed counterclaims asserting,
inter alia, that the plaintiffs had breached the parties’
written contract by failing to pay for goods purchased.
Following a bench trial, the court rendered judgment
for the plaintiffs on their promissory estoppel claim
against Smulders, but awarded limited damages on the
ground that the plaintiffs had not proved the value of
their share of the new venture to a reasonable certainty,
and rendered judgment for the defendants on their
breach of contract counterclaim. The plaintiffs and the
defendants filed separate appeals from the judgment.1
In their appeal, the plaintiffs claim that the trial court
improperly: (1) found that the evidence adduced at trial
was insufficient to establish their damages with reason-
able certainty; (2) reversed its decision to hold a post-
trial evidentiary hearing to allow the plaintiffs to present
further evidence regarding damages; and (3) rendered
judgment for the defendants on their breach of contract
counterclaim because the defendants had committed
prior material breaches. In their appeal, the defendants
claim that the court improperly rendered judgment for
the plaintiffs on their promissory estoppel claim
because: (1) the plaintiffs lacked standing in light of
Weiss’ bankruptcy filing; and (2) that claim contradicts
the fully integrated distribution agreement. We affirm
the judgment of the trial court in all respects.
The trial court reasonably could have found the fol-
lowing facts.2 Smulders and Weiss had their first busi-
ness interaction in 2001. At that time, Smulders was
the president and sole shareholder of Garden of Light,
a company that owned and operated two natural foods
grocery stores in Avon and Glastonbury and a bakery
that produced natural granola products sold in those
stores. Weiss was the owner and operator of Aegean
International, an olive oil and balsamic vinegar distribu-
tion and marketing company. The business relationship
between the two men began when Weiss approached
Smulders about selling his olive oil in Garden of Light’s
Glastonbury store. Smulders agreed, and due to suc-
cessful sales, Smulders continued to purchase olive oil
from Weiss.
In the late spring or early summer of 2003, while
Weiss was visiting the Garden of Light grocery store,
Smulders asked Weiss if he thought that Garden of
Light’s granola could be packaged for wholesale distri-
bution. At that time, the granola products were being
sold only in the two Garden of Light grocery stores,
and were packed in a plastic bag bearing a plain black
and white ‘‘scale’’ label. Weiss responded that, if prop-
erly packaged, the product potentially could do well.
Smulders acknowledged that he did not have any whole-
sale marketing experience. He further indicated to
Weiss that he would need Weiss’ assistance in this area
and that he had approached Weiss because of Weiss’
olive oil marketing campaign. As a result of this conver-
sation, the interest of both parties was piqued, and
they had numerous subsequent conversations in the
late spring or early summer of 2003, in which they
agreed to work to distribute the granola products.
In or around August, 2003, the parties discussed
working together as two separate companies to produce
and distribute the granola products. Smulders also indi-
cated that they would merge their companies to form
a new enterprise if that relationship proved successful.
Shortly thereafter, Weiss formed Food Works to distrib-
ute Garden of Light’s granola products. In December,
2003, Garden of Light and Food Works executed a writ-
ten ‘‘Master Distributorship Agreement’’ (distribution
agreement), the purpose of which was to designate
Food Works the exclusive distributor of granola prod-
ucts produced by Garden of Light. The distribution
agreement expressly acknowledged that the parties had
entered into discussions with respect to the formation
of a new company. Subsequent to the execution of the
distribution agreement and until approximately the time
their relationship ended in 2006, Smulders made
repeated representations to Weiss that he would spin
off his bakery business from Garden of Light, merge it
with Food Works, and that he and Weiss would be equal
partners in the new company, which they referred to
as ‘‘NEWCO.’’
In the period that followed the execution of the distri-
bution agreement, Weiss wound down his olive oil busi-
ness to focus primarily on the granola products
business, expending many hours on marketing and
research. Weiss also paid a brand manager $14,000 to
promote that business. At some point during this period,
Weiss and Smulders began labeling the granola prod-
ucts with the trade name Bakery on Main. While Food
Works purchased and distributed Garden of Light’s gra-
nola products, Weiss and Smulders continued to main-
tain their separate companies.
In September, 2006, Smulders sent an e-mail to Weiss,
informing Weiss that he would not merge companies. At
the same time, Smulders sent a letter to Weiss, asserting
that Food Works was not in compliance with the distri-
bution agreement because it had failed to compensate
Garden of Light for products that had been purchased
for distribution. As required by the distribution
agreement, Smulders, acting on behalf of Garden of
Light, gave Food Works thirty days to cure the breach.
Thereafter, Garden of Light continued to fulfill Food
Works’ orders, as it was bound to do under the distribu-
tion agreement, and Food Works’ debt continued to
accumulate. After Food Works failed to make full pay-
ment within the thirty day period, Garden of Light for-
mally terminated the distribution agreement.
The record reveals the following procedural history.
The plaintiffs commenced this action against the defen-
dants, alleging in the operative complaint: breach of
oral contract and promissory estoppel as to Smulders;
breach of written contract as to Garden of Light; and
negligent misrepresentation, intentional misrepresenta-
tion, and unjust enrichment as to both defendants. The
defendants asserted various special defenses and two
counterclaims against the plaintiffs, alleging breach of
contract and fraudulent misrepresentation.3
After the close of evidence, the defendants moved to
dismiss the plaintiffs’ breach of oral contract count
in its entirety and portions of the remaining counts,
including the promissory estoppel count, claiming that,
because Weiss had filed for bankruptcy protection sub-
sequent to the occurrence of some of the events that
constituted the claims, those claims belonged to Weiss’
bankruptcy estate, not to the plaintiffs. The trial court
denied the motion, determining with respect to the
promissory estoppel claim that this claim had not fully
accrued in December, 2003, when Weiss filed his bank-
ruptcy petition. In reliance on this finding, the court
concluded that the plaintiffs, rather than the bankruptcy
trustee, had standing to pursue the claim.
Thereafter, the court found in favor of the defendants
on all of the plaintiffs’ claims except promissory estop-
pel.4 With respect to that claim, the court found that
the plaintiffs had met their burden of establishing that
Smulders made promises regarding an eventual merger
of their two companies and that Weiss acted in reliance
on those promises to his detriment. With respect to
the defendants’ counterclaims, the court found that the
defendants had met their burden of establishing that
the plaintiffs breached the distribution agreement by
failing to compensate Garden of Light for products that
the plaintiffs had purchased for distribution, but found
in favor of the plaintiffs on the defendants’ claim of
fraudulent misrepresentation.5
With respect to damages, the court awarded the
defendants $110,463.50 in principal and interest for the
plaintiffs’ breach of the distribution agreement. As to
the plaintiffs’ damages for promissory estoppel, the
court found that they were entitled to be compensated
as if the companies had merged as promised and for
costs expended on the venture that never came to be.
With respect to the latter, the court found that Weiss
was entitled to one half of the $14,000 that he had paid
to the brand manager to promote the granola products,
as he would have benefited from one half of those
services as a partner in NEWCO. The court also found
that Weiss was entitled to the value of a 50 percent
share of NEWCO, but that neither party had offered
sufficient evidence to demonstrate the value of
NEWCO. In light of this deficiency, the court deter-
mined that further evidence of NEWCO’s value was
necessary and ordered the parties to return to court to
present additional evidence on that issue. Subsequently,
the defendants moved to reargue the court’s decision
to hold the additional hearing, and the plaintiffs moved
for reconsideration of the court’s decision that the plain-
tiffs had failed to present sufficient evidence of
NEWCO’s value. The trial court granted the defendants’
motion, reversing its decision to allow the parties to
introduce additional evidence on damages, and denied
the plaintiffs’ motion. Thereafter, the plaintiffs and the
defendants filed appeals. Additional facts and proce-
dural history will be set forth as necessary.
I
All of the parties raise claims challenging the trial
court’s judgment with respect to the plaintiffs’ promis-
sory estoppel claim—the defendants on the merits and
the plaintiffs on damages. The defendants contend that
the plaintiffs lacked standing to pursue the promissory
estoppel claim because the bankruptcy trustee
appointed to oversee Weiss’ bankruptcy estate had
exclusive standing to pursue the claim. The defendants
further contend that, even if the plaintiffs had standing,
the court improperly allowed the plaintiffs to recover
on this claim because it contradicted the fully integrated
distribution agreement. The plaintiffs dispute both of
these contentions and argue with respect to damages
that the trial court improperly found that the evidence
adduced at trial was insufficient to establish the value
of NEWCO to a reasonable certainty, and improperly
reversed its decision to hold a posttrial evidentiary hear-
ing on damages. We conclude that the plaintiffs had
standing to bring their promissory estoppel claim and
were not precluded by the terms of the distribution
agreement from advancing this claim. Nevertheless, we
conclude that the trial court properly determined that
the plaintiffs failed to meet their burden of proving
their damages with reasonable certainty and properly
declined to allow the plaintiffs to present further evi-
dence posttrial.
A
We first turn to the defendants’ challenge to the plain-
tiffs’ standing to bring their promissory estoppel claim
because that issue implicates the trial court’s subject
matter jurisdiction. Because of the jurisdictional nature
of the claim, it presents a threshold issue that must be
resolved before any determination of the merits. New
Hartford v. Connecticut Resources Recovery Authority,
291 Conn. 511, 518, 970 A.2d 583 (2009). The defendants
argue that the roots of the plaintiffs’ promissory estop-
pel claim arose from prebankruptcy activity. Accord-
ingly, the defendants contend that any cause of action
based on a claim of promissory estoppel was property
belonging to the bankruptcy estate, and thus the bank-
ruptcy trustee had exclusive standing to pursue that
claim. In response, the plaintiffs argue that the trial
court properly determined that the date on which the
claim accrues controls, and because the promissory
estoppel claim accrued after the bankruptcy petition
was filed, the claim was the property of Weiss, not the
bankruptcy estate. The plaintiffs further contend that,
even if this court were to apply the test that the defen-
dants advocate, the plaintiffs still would have had stand-
ing under the proper application of that test.6 We agree
with the plaintiffs that they had standing irrespective
of which test applies.
The following additional facts found by the trial court
and procedural history are relevant to this issue.
Between 2003 and 2006, Smulders made several prom-
ises to Weiss that they would merge Food Works with
the Bakery on Main part of Garden of Light to form the
new enterprise known as NEWCO, and that Smulders
and Weiss would be equal partners. These promises
were made in e-mails sent from Smulders to Weiss dated
August 23, 2003, October 28, 2004, and March 17, 2006,
and in a memorandum authored by Smulders in 2005,
that specifically referenced how and when the two com-
panies would merge into NEWCO.7 Consistent with
these promises, Smulders referred to Weiss as his part-
ner on numerous occasions, including in an e-mail to
a potential customer dated April 24, 2005, and in a
September, 2005 presentation in which he identified
himself and Weiss as ‘‘Managing Partners.’’ Until Smuld-
ers renounced his intention to merge the companies in
September, 2006, Weiss acted in reliance on the prom-
ises to merge the two companies by abandoning his
olive oil business, spending hundreds of hours on mar-
keting and research that was not required of him under
the distribution agreement, and working to improve
both his and Smulders’ businesses.
During the period when Weiss was working toward
the goal of merging the companies, however, he filed
a voluntary chapter 7 bankruptcy petition in the United
States Bankruptcy Court for the District of Connecticut.
Specifically, Weiss filed the petition on December 5,
2003, after Smulders had made his initial promise to
Weiss, but before the parties had executed the distribu-
tion agreement and well before Smulders had repudi-
ated the promised merger of the companies. Weiss did
not list the distribution agreement or his interest in
NEWCO in his bankruptcy petition.
In considering the standing issue raised in this case,
an issue over which we exercise plenary review; Wilcox
v. Webster Ins., Inc., 294 Conn. 206, 213–14, 982 A.2d
1053 (2009); we first are guided by certain fundamental
principles of bankruptcy law. When a debtor files for
bankruptcy protection, a bankruptcy estate is created.
Charts v. Nationwide Mutual Ins. Co., 300 B.R. 552,
556–57 (Bankr. D. Conn. 2003). Title 11 of the United
States Code, § 541, prescribes the property interests of
the debtor that comprise the bankruptcy estate. Subject
to a few exceptions, such property is defined as ‘‘all
legal or equitable interests of the debtor in property as
of the commencement of the case.’’8 (Emphasis added.)
11 U.S.C. § 541 (a) (1) (2012). It is well settled that such
property includes causes of action possessed by the
debtor at that time. See, e.g., In re Crysen/Montenay
Energy Co., 902 F.2d 1098, 1101 (2d Cir. 1990); In re
Cottrell, 876 F.2d 540, 542–43 (6th Cir. 1989); Sierra
Switchboard Co. v. Westinghouse Electric Corp., 789
F.2d 705, 707–709 (9th Cir. 1986). A bankruptcy debtor
does not have standing to pursue claims that constitute
property of a bankruptcy estate. Tilley v. Anixter, Inc.,
332 B.R. 501, 507 (Bankr. D. Conn. 2005); see Seward
v. Devine, 888 F.2d 957, 963 (2d Cir. 1989).
Thus, the ultimate question is whether a cause of
action that was instituted postpetition constitutes the
property of the debtor at the time the bankruptcy case
has commenced, namely, by the filing of the petition.
The federal courts are split on the proper approach to
resolve this question. Some courts, relying on Butner
v. United States, 440 U.S. 48, 99 S. Ct. 914, 59 L. Ed.
2d 136 (1979),9 have determined that applicable state
law determines when a cause of action accrues and
therefore consider that date in relation to the date on
which the petition was filed. See, e.g., In re Witko, 374
F.3d 1040, 1043 (11th Cir. 2004) (applying state law to
determine whether legal malpractice cause of action
had accrued at time debtor filed bankruptcy petition);
In re Segerstrom, 247 F.3d 218, 224 (5th Cir. 2001) (‘‘[a]
debtor’s pre-petition rights in property, such as a cause
of action, are determined according to state law’’); In
re de Hertogh, 412 B.R. 24, 29 (Bankr. D. Conn. 2009)
(‘‘the [c]ourt’s analysis focuses on when [prepetition or
postpetition] and to whom [the estate or the postpeti-
tion debtor] a legally cognizable interest in the cause of
action arose under the applicable state law’’ [emphasis
omitted]). These courts reason that ‘‘[a]lthough federal
bankruptcy law determines the outer boundary of what
may constitute property of the estate, state law deter-
mines the nature of a debtor’s interest in a given item.’’
(Internal quotation marks omitted.) In re Crysen/Mon-
tenay Energy Co., supra, 902 F.2d 1101; In re de Her-
togh, supra, 29. Therefore, ‘‘whereas federal law
instructs us that [a cause of action] may constitute
property of [the debtor’s] estate, state law determines
whether [the debtor’s] interest in the cause of action
is sufficient to confer on the estate a property right
in the action.’’ (Emphasis in original.) In re Crysen/
Montenay Energy Co., supra, 1101. The Second Circuit,
whose decisions ‘‘ ‘carry particularly persuasive
weight’ ’’ in our resolution of issues of federal law;
Dayner v. Archdiocese of Hartford, 301 Conn. 759, 783,
23 A.3d 1192 (2011); follows this approach. See, e.g.,
Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1093
(2d Cir. 1995) (‘‘Whether the rights belong to the debtor
. . . is a question of state law. . . . Thus, the trustee
stands in the shoes of the debtors, and can only maintain
those actions that the debtors could have brought prior
to the bankruptcy proceedings.’’ [Citations omitted;
internal quotation marks omitted.]); In re de Hertogh,
supra, 29 (same); see also In re Crysen/Montenay
Energy Co., supra, 1101 (state law determines nature
of debtor’s interest in given item).
Other courts, relying on Segal v. Rochelle, 382 U.S.
375, 86 S. Ct. 511, 15 L. Ed. 2d 428 (1966),10 deem the
purposes of federal bankruptcy law controlling, namely,
to secure for creditors everything of value the debtor
may possess in alienable or leviable form when he files
his petition, while leaving the debtor free after the peti-
tion date to accumulate new wealth in the future. See
id., 379–80. These courts consider whether, even if a
cause of action accrued postpetition under state law,
that action nonetheless was ‘‘sufficiently rooted in the
pre-bankruptcy past and so little entangled with the
bankrupt’s ability to make an unencumbered fresh start
that it should be regarded as property’’ of the bank-
ruptcy estate. (Internal quotation marks omitted.) Id.,
380; see, e.g., In re Jenkins, 410 B.R. 182, 191–92 (Bankr.
W.D. Va. 2008) (holding that bankruptcy law, not state
law, ‘‘determines whether a debtor’s interest is property
of the estate’’ and, as such, plaintiff’s tort claims are
sufficiently rooted in prepetition conduct because they
‘‘derive solely from the conduct of the [d]efendants that
took place prior to the commencement of the bank-
ruptcy case’’ [emphasis in original]); In re Riccitelli,
320 B.R. 483, 491–92 (Bankr. D. Mass. 2005) (holding
that malpractice claim that accrued postpetition was
not ‘‘sufficiently rooted in the pre-bankruptcy past’’
because harm suffered occurred postpetition and was
entangled with debtor’s ability to have unencumbered
fresh start); Field v. Transcontinental Ins. Co., 219 B.R.
115, 119 (Bankr. E.D. Va. 1998) (holding that claim for
bad faith failure to insure brought against insurance
company, which accrued postpetition, was ‘‘sufficiently
rooted in [the] pre-bankruptcy past’’ to become part of
bankruptcy estate because accident and right to cover-
age occurred prepetition), aff’d, 173 F.3d 424 (4th Cir.
1999). Under this approach, if the claim has sufficient
roots in the prebankruptcy past but does not materially
impair the bankrupt’s ability to obtain the fresh start
intended under bankruptcy law, the claim belongs
exclusively to the estate.11 See Tyler v. DH Capital
Management, Inc., 736 F.3d 455, 461–62 (6th Cir. 2013);
In re Riccitelli, supra, 491–92.
Despite this split of authority, we conclude that we
need not resolve in the present case which approach
is correct because the defendants’ claim fails under
both approaches. We first apply the approach that looks
to applicable state law to determine whether the claim
existed as of the petition date. The doctrine of promis-
sory estoppel serves as an alternative basis to enforce
a contract in the absence of competing common-law
considerations. See D’Ulisse-Cupo v. Board of Direc-
tors of Notre Dame High School, 202 Conn. 206, 213,
520 A.2d 217 (1987); Torringford Farms Assn., Inc. v.
Torrington, 75 Conn. App. 570, 576, 816 A.2d 736, cert.
denied, 263 Conn. 924, 823 A.2d 1217 (2003). ‘‘The law
concerning when a breach of contract action accrues
is well settled. This court has stated that [i]n an action
for breach of contract . . . the cause of action is com-
plete at the time the breach of contract occurs, that is,
when the injury has been inflicted.’’ (Internal quotation
marks omitted.) Tolbert v. Connecticut General Life
Ins. Co., 257 Conn. 118, 124, 778 A.2d 1 (2001); see also
Engelman v. Connecticut General Life Ins. Co., 240
Conn. 287, 294–95 n.7, 690 A.2d 882 (1997) (noting in
contract action wherein defendant is claimed to have
breached his obligation to pay sum of money, cause of
action accrues when defendant fails to pay promised
sum). Therefore, it follows that a cause of action for
promissory estoppel accrues when the defendant fails
to fulfill its promise. See Torringford Farms Assn., Inc.
v. Torrington, supra, 577–78.
As we previously indicated, Weiss filed his petition
for bankruptcy on December 5, 2003, and Smulders
renounced his promise to merge companies in Septem-
ber, 2006. Therefore, under state law, the plaintiffs’
promissory estoppel claim did not accrue until 2006,
after Weiss filed for bankruptcy. Indeed, the defendants
do not dispute that, under the accrual date approach,
the plaintiffs’ cause of action premised on a promissory
estoppel claim was not property of the bankruptcy
estate.
We reach the same conclusion by applying the alter-
native approach under which federal bankruptcy law
controls. The courts taking this approach have indi-
cated that a cause of action does not become property
of the bankruptcy estate merely because it has some
prepetition roots; rather, the facts forming the cause
of action determine whether it is sufficiently rooted
in the prepetition past. See, e.g., Tyler v. DH Capital
Management, Inc., supra, 736 F.3d 462 (‘‘pre-petition
conduct or facts alone will not ‘root’ a claim in the
past; there must be a pre-petition violation’’); In re
de Hertogh, supra, 412 B.R. 30–31 (holding prepetition
roots of malpractice action outweighed by postpetition
suffering of harm, thus rendering cause of action debt-
or’s property); In re Jenkins, supra, 410 B.R. 191 (hold-
ing tort claims sufficiently rooted in prepetition conduct
because ‘‘claims derive solely from the conduct of the
[d]efendants that took place prior to the commence-
ment of the bankruptcy case’’ [emphasis in original]); In
re Riccitelli, supra, 320 B.R. 491–92 (noting negligence
claim not sufficiently rooted in prebankruptcy past pri-
marily because harm occurred postpetition as harm
resulted from filing of petition). Some courts have
strictly construed the test to require that all or most of
the facts constituting the cause of action exist at the
commencement of the bankruptcy case; see, e.g., Tyler
v. DH Capital Management, Inc., supra, 462; In re Jen-
kins, supra, 194; In re Riccitelli, supra, 491–92; while
other courts have applied the test expansively to include
contingent and unripe claims as property of the estate.
See, e.g., Fix v. First State Bank of Roscoe, 559 F.3d
803, 809 (8th Cir. 2009) (claims based on breach of
promise ‘‘have sufficient roots in [debtor’s] pre-bank-
ruptcy activities to be considered property of the bank-
ruptcy estate, even though the [b]ank’s alleged breach
of its promise occurred post-petition’’); In re Parker,
Docket No. 06-8053, 2007 Bankr. LEXIS 1523, *26
(B.A.P. 6th Cir. May 10, 2007) (holding legal malpractice
claim became part of estate at time of negligence, not
when damages incurred).
Irrespective of whether we construe the test strictly
or expansively, however, the result is the same. The
trial court found that promissory estoppel arose from
Weiss’ detrimental reliance on a series of promises and
statements made by Smulders between 2003 and 2006.
Only one of those communications occurred before the
bankruptcy petition was filed—the August, 2003 e-mail.
The distribution agreement executed in December,
2003, however, unequivocally reflects that no firm
promise to merge the companies had yet been made.
That distribution agreement acknowledges that ‘‘[t]he
parties have entered into discussions with respect to
the formation of a new company . . . .’’ (Emphasis
added.) Therefore, any promise supporting the promis-
sory estoppel claim occurred after the petition was
filed. Similarly, all of Weiss’ actions demonstrating det-
rimental reliance and harm occurred postpetition.
Therefore, even under the sufficiently rooted test, it is
clear that the plaintiffs’ promissory estoppel claim is
a postpetition asset that was not property of Weiss’
bankruptcy estate because all of the actions supporting
the claim occurred subsequent to the date Weiss filed
his bankruptcy petition. Accordingly, we conclude that
the plaintiffs had standing to pursue their promissory
estoppel claim, irrespective of which test applies.
B
We next turn to the defendants’ claim that the plain-
tiffs cannot recover on their promissory estoppel claim
because it contradicts the fully integrated distribution
agreement. Specifically, the defendants point to a
merger clause in the distribution agreement, and to
language therein indicating that any agreement regard-
ing the formation of a new business must be evidenced
in writing. As such, the defendants argue that the trial
court violated the parol evidence rule by allowing the
plaintiffs to prevail on their promissory estoppel claim.12
In response, the plaintiffs argue that the defendants’
claim is unpreserved because they did not object to the
introduction of parol evidence at trial or assert that
the distribution agreement was fully integrated. The
plaintiffs further argue that the defendants’ claim never-
theless fails on the merits because the subject matter
of Smulders’ promise to merge companies did not come
within the scope of the distribution agreement. We con-
clude that, even though the defendants did not directly
raise this claim at trial, they are permitted to pursue it
on appeal because the trial court addressed this matter.
See Practice Book § 60-5 (‘‘[an appellate] court shall
not be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial’’
[emphasis added]); Azia v. DiLascia, 64 Conn. App.
540, 558–59 n.13, 780 A.2d 992 (addressing issue on
appeal that arose for first time in trial court’s memoran-
dum of decision), cert. denied, 258 Conn. 914, 782 A.2d
1241 (2001). We further conclude that the trial court
properly admitted evidence in support of the plaintiffs’
promissory estoppel claim because Smulders’ promise
did not vary or contradict the subject matter of the
distribution agreement.
‘‘[T]he parol evidence rule is not an exclusionary rule
of evidence . . . but a rule of substantive contract law
. . . to which we afford plenary review.’’ (Internal quo-
tation marks omitted.) Alstom Power, Inc. v. Balcke-
Durr, Inc., 269 Conn. 599, 609, 849 A.2d 804 (2004);
Ravenswood Construction, LLC v. F. L. Merritt, Inc.,
105 Conn. App. 7, 14, 936 A.2d 679 (2007). ‘‘The rule is
premised upon the idea that when the parties have
deliberately put their engagements into writing, in such
terms as import a legal obligation, without any uncer-
tainty as to the object or extent of such engagement,
it is conclusively presumed, that the whole engagement
of the parties, and the extent and manner of their under-
standing, was reduced to writing. After this, to permit
oral testimony, or prior or contemporaneous conversa-
tions, or circumstances, or usages . . . in order to
learn what was intended, or to contradict what is writ-
ten, would be dangerous and unjust in the extreme.’’
(Internal quotation marks omitted.) Schilberg Inte-
grated Metals Corp. v. Continental Casualty Co., 263
Conn. 245, 277, 819 A.2d 773 (2003). ‘‘Ordinarily, a
merger clause provision indicates that the subject
agreement is completely integrated, and parol evidence
is precluded from altering or interpreting the
agreement. Tempo Shain Corp. v. Bertek, Inc., 120 F.3d
16, 21 (2d Cir. 1997).’’ (Internal quotation marks omit-
ted.) Western Dermatology Consultants, P.C. v.
VitalWorks, Inc., 146 Conn. App. 169, 191, 78 A.3d
167 (2013).
‘‘The parol evidence rule does not of itself, therefore,
forbid the presentation of parol evidence, that is, evi-
dence outside the four corners of the contract concern-
ing matters governed by an integrated contract, but
forbids only the use of such evidence to vary or contra-
dict the terms of such a contract. Parol evidence offered
solely to vary or contradict the written terms of an
integrated contract is, therefore, legally irrelevant.
When offered for that purpose, it is inadmissible not
because it is parol evidence, but because it is irrelevant.
By implication, such evidence may still be admissible
if relevant . . . to prove [inter alia] a collateral oral
agreement which does not vary the terms of the writing
. . . .’’ (Internal quotation marks omitted.) Schilberg
Integrated Metals Corp. v. Continental Casualty Co.,
supra, 263 Conn. 277; see also Tallmadge Bros., Inc. v.
Iroquois Gas Transmission System, L.P., 252 Conn.
479, 503 n.14, 746 A.2d 1277 (2000) (proof of integrated
agreement does not bar proof of collateral oral
agreement that does not vary terms of writing); 2
Restatement (Second), Contracts § 213 (2), p. 129
(1981) (‘‘[a] binding completely integrated agreement
discharges prior agreements to the extent that they are
within its scope’’).
With these principles in mind, we turn to the language
contained in the distribution agreement. The preface
to the distribution agreement sets forth several recital
provisions, including the following: ‘‘This Master Distri-
bution Agreement . . . is made and entered into . . .
with reference to the following facts . . .
‘‘2. The parties have entered into discussions with
respect to the formation of a new company, joint ven-
ture or other similar arrangement which would replace
the business arrangement detailed in this [a]greement;
‘‘3. Unless and until the above-described arrangement
has been finalized and evidenced by written
agreement(s), [Garden of Light] wishes to appoint
[Food Works] as its exclusive distributor for the sale
of Products under the Marks to Dealers in the Territory
(as such terms are hereinafter defined) . . . .’’
Following the recitations, the distribution agreement
then provides: ‘‘THEREFORE, [Garden of Light] and
[Food Works] hereby agree as follows . . . .’’ The dis-
tribution agreement then prescribes substantive terms
of the agreement, including, among others, the grant of
a distributorship to Food Works, Food Works’ general
obligations, Garden of Light’s general obligations,
prices and terms of payment, the duration of the
agreement, and termination. One such term is a merger
clause, which provides in relevant part: ‘‘This
[a]greement contains all of the terms and conditions
agreed upon by the parties hereto with reference to the
subject matter hereof. No other agreements, oral or
otherwise, shall be deemed to exist or to bind either
of the parties hereto, and all prior agreements and
understandings are superseded hereby. . . .’’ (Empha-
sis added.)
We conclude that, even if the distribution agreement
is fully integrated, the defendants’ claim fails because
an examination of the distribution agreement clearly
indicates that the evidence admitted at trial to prove
that Smulders promised Weiss that they would merge
companies to form NEWCO is collateral to the subject
matter of the distribution agreement. The subject mat-
ter of the distribution agreement is Food Works’ pur-
chase and distribution of Garden of Light’s products,
not the formation of NEWCO. Cf. Perricone v. Perri-
cone, 292 Conn. 187, 196, 972 A.2d 666 (2009) (holding
confidentiality agreement collateral to separation
agreement because ‘‘relevant subject matter of the sepa-
ration agreement was the division of property between
the parties, while the subject matter of the confidential-
ity agreement was the disclosure of information con-
cerning the parties’ property and the parties
themselves’’ [emphasis in original]); Shelton Yacht &
Cabana Club, Inc. v. Suto, 150 Conn. 251, 257, 259–60,
188 A.2d 493 (1963) (holding that although written and
unwritten contracts related to advertising and promo-
tion of defendant’s clubs, unwritten contracts are collat-
eral to written contracts because written contracts
concern promise to advertise, promote, and sell mem-
berships to defendant’s clubs, while unwritten con-
tracts concerned expenses paid and incurred by
plaintiffs in promoting clubs, therefore exceeding scope
of written contracts). All of the substantive rights and
obligations under the distribution agreement pertain to
that distribution agreement. There is no provision in
the distribution agreement addressing the parameters
under which NEWCO would be created or the parties’
obligations upon the creation of NEWCO. Indeed, the
trial court’s finding that the distribution agreement
merely pertained to the distribution relationship is
wholly consistent with the title of the agreement—
’’Master Distributorship Agreement’’—and the obliga-
tions imposed thereunder.
The only reference to the future formation of the
new company is in the recital provisions. The related
language in the recital on which the defendants rely
that addresses the new venture being ‘‘finalized and
evidenced by written agreement(s),’’ however, appears
to conflict with substantive provisions of the distribu-
tion agreement. Specifically, the recital indicates that
Food Works will continue as distributor unless and until
a new company or joint venture has been finalized. The
substantive provision pertaining to the duration of the
contract states that the agreement is to last for three
years from the date of execution ‘‘[u]nless sooner termi-
nated in accordance with the provisions of [a]rticle 9
[Termination].’’ Article 9 enumerates specific grounds
on which either party may terminate the agreement,
none of which includes the formation of NEWCO or
any other joint venture. Any conflict between the recital
provisions and the substantive terms of the distribution
agreement is resolved by the fact that the subject matter
of the distribution agreement is the distribution rela-
tionship between the parties. As such, the substantive
provisions regarding the duration and termination of
that matter necessarily would control over what is evi-
dently a collateral matter.13 See McKinnon v. Baker,
220 Neb. 314, 317, 370 N.W.2d 492 (1985) (noting well
settled principle that ‘‘[i]f both the recitals and the oper-
ative part are clear, but they are inconsistent with each
other, the operative part must control’’ [internal quota-
tion marks omitted]); see also Jamison v. Franklin Life
Ins. Co., 60 Ariz. 308, 317, 136 P.2d 265 (1943) (same);
Williams v. Barkley, 165 N.Y. 48, 57, 58 N.E. 765 (1900)
(same). In light of these considerations, it is apparent
that the formation of NEWCO was collateral to the
subject matter of the distribution agreement. Therefore,
the trial court properly admitted evidence to prove
Smulders’ promises to Weiss because such evidence
did not vary the terms of the writing contained in the
distribution agreement.
C
Having disposed of the defendants’ appeal contesting
the merits of the plaintiffs’ promissory estoppel claim,
we turn to the plaintiffs’ claims in their appeal regarding
damages on that claim. The plaintiffs contend that the
trial court improperly concluded that they failed to
prove the value of the merged company with reasonable
certainty because their expert was entitled to rely on
reasonable assumptions in assigning a valuation to
NEWCO. In response, the defendants argue that the
trial court properly decided that the plaintiffs had failed
to prove the value of NEWCO because they valued
the wrong entity during the wrong time period. We
conclude that the plaintiffs failed to meet their burden
because they did not produce evidence valuing a com-
pany that is substantially similar to what NEWCO would
have been to form a comparative basis on which to
prove damages.
The legal principles that govern our review of damage
awards are well established. ‘‘It is axiomatic that the
burden of proving damages is on the party claiming
them. . . . Damages are recoverable only to the extent
that the evidence affords a sufficient basis for estimat-
ing their amount in money with reasonable certainty.’’
(Internal quotation marks omitted.) American Dia-
mond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28
A.3d 976 (2011); Lawson v. Whitey’s Frame Shop, 241
Conn. 678, 689, 697 A.2d 1137 (1997). ‘‘[T]he court must
have evidence by which it can calculate the damages,
which is not merely subjective or speculative . . . but
which allows for some objective ascertainment of the
amount. . . . This certainly does not mean that mathe-
matical exactitude is a precondition to an award of
damages, but we do require that the evidence, with
such certainty as the nature of the particular case may
permit, lay a foundation [that] will enable the trier to
make a fair and reasonable estimate.’’ (Internal quota-
tion marks omitted.) American Diamond Exchange,
Inc. v. Alpert, supra, 510–11; Waterbury Petroleum
Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn.
208, 226 n.22, 477 A.2d 988 (1984); accord Beverly Hills
Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin,
247 Conn. 48, 70, 717 A.2d 724 (1998); Simone Corp. v.
Connecticut Light & Power Co., 187 Conn. 487, 495, 446
A.2d 1071 (1982). ‘‘Evidence is considered speculative
when there is no documentation or detail in support of
it and when the party relies on subjective opinion.’’
(Internal quotation marks omitted.) American Dia-
mond Exchange, Inc. v. Alpert, supra, 511; Viejas Band
of Kumeyaay Indians v. Lorinsky, 116 Conn. App. 144,
163, 976 A.2d 723 (2009). The trial court’s determination
that damages have not been proved to a reasonable
certainty is reviewed under a clearly erroneous stan-
dard. See Gianetti v. Norwalk Hospital, 304 Conn. 754,
780, 43 A.3d 567 (2012).
The record reveals the following relevant facts. To
demonstrate damages in support of their claim of prom-
issory estoppel, the plaintiffs proffered expert testi-
mony from Richard A. Royston, a forensic accountant,
and a report prepared by Royston. Royston testified
that he had been asked by the plaintiffs to perform an
appraisal of the value of Garden of Light and to calculate
a valuation of a 50 percent share of the company on
as late a date as possible. Royston’s calculation was
premised on the company’s value as of December 31,
2008. To value Garden of Light, Royston used the capi-
talization of earnings methodology, which values an
entity by its sales and profits and does not take physical
assets into account. See West Haven Sound Develop-
ment Corp. v. West Haven, 201 Conn. 305, 329, 514 A.2d
734 (1986) (‘‘[w]hile there are several different methods
by which to determine the value of a closely-held corpo-
ration, these methods, and their variants, are of two
general types: [1] capitalization of earnings, or the net
present value of a future income stream; and [2] net
asset value, or the present sale price of the business
assets less its liabilities’’).
Royston derived his valuation determination by first
examining Garden of Light’s gross sales and profits, as
stated in its federal income tax returns from 2003 to
2008. Royston testified that he had observed a sharp
increase in Garden of Light’s sales from 2006 to 2008,
in which the annual sales almost doubled, and that he
focused on that increase in carrying out his valuation.
He also stated that there was a corresponding increase
in gross profits as well. Royston then made two deduc-
tions in the company’s value: to account for its market-
ability; and to address the fact that there would be a
lack of control of the company due to the nonmajority
50 percent share that Weiss expected he would obtain.
Taking all of the information into account, Royston
opined that the market value of Garden of Light in its
entirety was $720,000, and thus a 50 percent share
would be valued at $360,000.
Royston further testified that he had requested infor-
mation from Smulders and Weiss to segregate the gro-
cery store operations of Garden of Light from the
granola products of Bakery on Main, but neither Weiss
nor Smulders had such information. He testified that
he used the capitalization of earnings methodology
because he was unable to distinguish between the
income of the grocery stores and the income of Bakery
on Main, and thus was unable to come up with a compa-
rable peer group of companies to compare with NEWCO
in order to extrapolate its value, which would have
been an alternative market-based method of valuing
NEWCO.
On cross-examination, Royston testified that he did
not take Weiss’ bankruptcy into account in valuing Gar-
den of Light and that Weiss’ poor credit could have had
an impact on NEWCO’s ability to take out future loans.
Royston further admitted that, although he understood
that NEWCO would be comprised of the Bakery on
Main division of Garden of Light and Food Works, he
did not value the merged entity. Further, Royston stated
that he was not given any financial data for Food Works,
nor did he value that company. He also admitted that
to perform a valuation of NEWCO, it would have been
extremely helpful to have the value of Food Works and
the value of Bakery on Main, rather than the value of
Garden of Light in its entirety. Although Royston did
not value Bakery on Main separately, he opined that
the grocery stores were not a material part of Garden
of Light’s value. In support of this conclusion, Royston
pointed to three facts: a sharp increase in marketing
expenses that he attributed to Bakery on Main; a two-
fold increase in Garden of Light’s business between
2006 and 2007; and the arrival of a competing natural
foods store in 2008. Royston reasoned that the volume
of business at one of the grocery store locations was
downtrending due to the competition and, therefore,
the increase in Garden of Light’s business was due to
Bakery on Main’s granola business rather than the gro-
cery stores.
In its memorandum of decision, the trial court found
that there was insufficient evidence to demonstrate the
value of NEWCO. The court agreed with the defendants
that Royston’s valuation was flawed because it did not
measure the value of NEWCO, which was to consist
of Food Works and Bakery on Main. The court first
determined that the value of the merged company likely
would be different than the value of Garden of Light.
The court reasoned that Garden of Light included two
grocery stores that were not intended to be included
in NEWCO. Therefore, the court determined that any
value those stores contributed or detracted from the
$720,000 valuation should not have been considered in
the calculation of damages. The court also pointed to
the following factors that were not accounted for in
that valuation by Royston’s own admission: Weiss’ par-
ticipation as a co-owner of NEWCO would have likely
lessened the value of NEWCO based on his poor credit;
and the value of Food Works, for which no evidence
had been produced, would need to be measured and
included in the value of NEWCO.
Applying the aforementioned damages principles to
the facts in the present case, we conclude that, for
precisely the reasons identified by the trial court, the
evidence presented at trial was inadequate to establish
the value of NEWCO with as much reasonable certainty
as the case permitted. The plaintiffs contend, however,
that they may prove their damages by comparing the
value of a comparable business, which they did when
they valued Garden of Light. Although this court has
approved evidence of a similar business as probative
on the issue of lost profits of a business that never
came to fruition; see Cheryl Terry Enterprises, Ltd. v.
Hartford, 270 Conn. 619, 655, 854 A.2d 1066 (2004);
Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribi-
coff & Kotkin, supra, 247 Conn. 73; we have emphasized
that ‘‘[t]he underlying requirement for [this type] of
evidence is a substantial similarity between the facts
forming the basis of the profit projections and the busi-
ness opportunity that was destroyed.’’ Beverly Hills
Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin,
supra, 74. As such, the plaintiffs had the burden of
establishing that Garden of Light and NEWCO were
substantially similar companies.
There are two readily apparent deficiencies in the
plaintiffs’ evidence: (1) the value of Garden of Light
included the sales and profits of the two grocery stores
that would not be part of NEWCO; and (2) the value
of Garden of Light did not include the value of Food
Works, which would be part of NEWCO. Royston
acknowledged that he would need to account for both of
these facts to properly determine the value of NEWCO.
Thus, although a damages theory may be based on
assumptions, those assumptions must be reasonable in
light of the record evidence. Id., 70. A simple measure-
ment of a different, albeit related, company is not
enough for the court to make a reasonable estimation
of the value of a 50 percent share of NEWCO when
there were significant differences between Garden of
Light and NEWCO.
Although Royston testified on cross-examination that
Garden of Light’s two grocery stores were not a material
part of the company, he did not provide the court with
sufficient, credible evidence to support this conclusion.
Royston assumed that Garden of Light’s drastic increase
in profits between 2006 and 2008 was due to Bakery
on Main’s success because the company’s marketing
expenses were higher than in previous years and
because a new competing grocery store opened in 2008.
Correlation, however, is not causation. More fundamen-
tally, even if that increase could be attributable solely
to Bakery on Main that fact does not account for what
portion of Garden of Light’s value prior to this increase
was attributable to the grocery stores. Accordingly, the
plaintiffs did not ‘‘lay a foundation [that would] enable
the trier to make a fair and reasonable estimate’’ of the
damages. (Internal quotation marks omitted.) Ameri-
can Diamond Exchange, Inc. v. Alpert, supra, 302
Conn. 511.
Nonetheless, the plaintiffs argue that the evidence is
reasonable in light of the fact that Royston testified
that he had asked for information that would allow him
to separate the sales of the two grocery stores from
Bakery on Main, but was unable to obtain such informa-
tion. We reject this argument for two reasons. First,
during his testimony, Royston repeatedly stated that he
was engaged to value Garden of Light, not an entity
comprised of Food Works and Bakery on Main. Indeed,
the plaintiffs do not claim that they made any attempt
to gather such evidence from the defendants, other than
pointing to Royston’s statement at trial. Second, even
if we were to excuse the plaintiffs from offering more
definite proof by virtue of the defendants’ failure to
provide Royston with such information, the plaintiffs
nevertheless failed to take into account the value of
Food Works. Royston testified that he did not have any
knowledge of Food Works’ sales and profits for any
point during the relevant time period and that he could
not opine on the value of the company. Although Roys-
ton opined that Food Works’ value in 2006 would not
impact his valuation of Garden of Light in 2008, assum-
ing that Food Works had no assets and that all of its
customers and sales were absorbed by Garden of Light,
this assumption appears to be pure speculation as it
was not supported by any objective facts, figures, or
data, nor was there any testimony to the effect that
such data were not available. Therefore, the plaintiffs’
failure to produce evidence of the value of Food Works,
which we must assume was readily available to them,
requires us to conclude that they have not met their
burden of establishing the value of NEWCO with reason-
able certainty.
Finally, the plaintiffs cite an Appellate Court case for
the proposition that doubts as to exact amounts of
damages are generally resolved against the parties in
breach and thus any uncertainty in their damages calcu-
lation should be resolved against the defendants. See
Message Center Management, Inc. v. Shell Oil Products
Co., 85 Conn. App. 401, 413, 857 A.2d 936 (2004). This
principle may only be invoked, however, once the plain-
tiffs have demonstrated the amount of damages with
reasonable certainty, which the plaintiffs have failed
to do. See 3 Restatement (Second), Contracts § 352,
comment (a), pp. 144–45 (1981) (noting while doubts
in amount of damages are resolved against party in
breach, to prevent windfalls plaintiff must still prove
amount with reasonable certainty). In light of the afore-
mentioned considerations, we conclude that the trial
court’s finding that the plaintiffs failed to prove their
damages with reasonable certainty with respect to the
value of NEWCO was not clearly erroneous.14
D
In light of our conclusion in part I C of this opinion
as to the evidentiary deficiency, we must address the
plaintiffs’ claim that the trial court improperly granted
the defendants’ motion for reargument and reversed
its decision to hold a posttrial evidentiary hearing on
damages.15 Specifically, the plaintiffs claim that the trial
court improperly relied on the fact that the case had
been pending for five years before trial in the absence
of a finding that the alleged delay was the plaintiffs’
fault, and failed to consider that its decision would have
the effect of precluding the plaintiffs from providing
the court with a sufficient basis on which to award
damages. We disagree.
We review the trial court’s decision to not reopen
evidence for a hearing on damages under the abuse of
discretion standard. See, e.g., Wood v. Bridgeport, 216
Conn. 604, 606, 583 A.2d 124 (1990) (‘‘[w]hether . . .
a trial court will permit further evidence to be offered
after the close of testimony in a case is a matter resting
in the sound discretion of the court’’ [internal quotation
marks omitted]). Similarly, we review the adjudication
of a motion to reargue for an abuse of discretion. See
Liberti v. Liberti, 132 Conn. App. 869, 874, 37 A.3d
166 (2012). ‘‘In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling. . . . Reversal is required only [when] an abuse
of discretion is manifest or [when] injustice appears to
have been done.’’ (Internal quotation marks omitted.)
Patino v. Birken Mfg. Co., 304 Conn. 679, 698, 41 A.3d
1013 (2012).
The plaintiffs’ claim merits little discussion. We do
not construe the trial court’s decision as punishing the
plaintiffs for delaying the commencement of trial.
Rather, the court simply determined that the plaintiffs
had ample opportunity to obtain evidence, through dis-
covery or otherwise, pertaining to their alleged damages
in the years preceding the trial. The court was entitled
to presume that the plaintiffs were prepared to present
their case when trial commenced. The plaintiffs did not
request a continuance or seek sanctions due to the
defendants’ failure to comply with discovery requests
to obtain evidence relating to valuation. Indeed, the
trial court sua sponte ordered further evidentiary pro-
ceedings after the close of evidence. When a party has
been afforded ample opportunity to obtain and present
evidence, a trial court acts well within its discretion to
decline to allow that party to obtain a conclusive ruling
as to whether the evidence presented satisfied the par-
ty’s burden of proof, and then to reopen the evidentiary
portion of the trial in order to present further evidence
if the ruling is adverse. Accordingly, given the facts and
circumstances of this case, we cannot conclude that
the trial court abused its discretion in granting the
defendants’ motion to reargue and reversing its sua
sponte decision to hold a posttrial evidentiary hearing
on damages.
II
Finally, we turn to the plaintiffs’ claim that the trial
court improperly rendered judgment for the defendants
on their breach of contract counterclaim due to Food
Works’ failure to pay for certain granola products
received from Garden of Light. The plaintiffs contend
that they were discharged from their obligations
because the defendants committed prior material
breaches of the distribution agreement. Specifically,
they argue that they presented evidence that the defen-
dants had made direct sales to customers outside of
the Garden of Light stores in breach of the provisions
in the distribution agreement under which Food Works
was deemed the sole distributor of Bakery on Main
products and Garden of Light was afforded the limited
right to sell such products only in direct sales in its
two stores. The evidence indicated that Garden of Light
had made approximately $10,000 in direct sales of its
products to customers over the Internet, but refused
to share the revenue generated with Food Works.16 In
response, the defendants argue that the plaintiffs were
not discharged from their obligations under the distribu-
tion agreement because: (1) the alleged breaches were
not material; and (2) the plaintiffs failed to give written
notice to the defendants of these alleged breaches as
required by the distribution agreement.17 With respect
to the latter, the defendants point to the trial court’s
rejection of the plaintiffs’ breach of contract claim on
the basis of its finding that the plaintiffs had failed to
abide by the terms of the distribution agreement for
notification of breach. We conclude that, even if the
defendants’ alleged breaches were material, the plain-
tiffs’ failure to notify the defendants of the breaches
and to provide them with an opportunity to cure them
in accordance with the provisions of the distribution
agreement precludes them from raising this defense.
Under contract law, it is well settled that a material
breach by one party discharges the other party’s subse-
quent duty to perform on the contract. See Bernstein
v. Nemeyer, 213 Conn. 665, 672–73, 570 A.2d 164 (1990);
see also Vesce v. Lee, 185 Conn. 328, 334, 441 A.2d 556
(1981); 2 Restatement (Second), supra, § 237 (‘‘it is a
condition of each party’s remaining duties to render
performances to be exchanged under an exchange of
promises that there be no uncured material failure by
the other party to render any such performance due at
an earlier time’’). Whether a breach is material depends
on the circumstances of the case. 669 Atlantic Street
Associates v. Atlantic-Rockland Stamford Associates,
43 Conn. App. 113, 128, 682 A.2d 572 (1996). In addition
to considering the multifactor standards for materiality
of breach contained in § 241 of the Restatement (Sec-
ond) of Contracts to assess whether a party’s uncured
failure to render or to offer performance discharges the
other party’s remaining duties to render performance,
the Restatement (Second) of Contracts notes: ‘‘The rea-
sonableness of the injured party’s conduct in communi-
cating his grievances and in seeking satisfaction is a
factor to be considered in this connection.’’ 2
Restatement (Second), supra, § 242, comment (b), p.
245.
The distribution agreement unambiguously states
that if either party wishes to terminate the agreement
upon the default of the other party, it must notify the
breaching party and provide that party with thirty days
to cure such default.18 At trial, Weiss admitted in his
testimony that he had not notified Smulders of the
alleged breaches by Garden of Light because he did not
want to harm their relationship. In reliance upon this
fact, the trial court held that the plaintiffs could not
succeed on their claim for breach of the agreement
because they had failed to abide by the terms of the
distribution agreement. ‘‘Where the language of the con-
tract is clear and unambiguous, the contract is to be
given effect according to its terms.’’ (Internal quotation
marks omitted.) Office of Labor Relations v. New
England Health Care Employees Union, District 1199,
AFL-CIO, 288 Conn. 223, 231–32, 951 A.2d 1249 (2008).
Therefore, the plaintiffs waived their right to assert a
material breach of contract in defense of the defen-
dants’ counterclaim when they failed to notify the defen-
dants of the alleged breaches and failed to provide them
with an opportunity to cure such breaches. In light of
this conclusion, we need not reach the issue of whether
the defendants’ alleged breaches were in fact material.19
The judgment is affirmed.
In this opinion the other justices concurred.
1
The parties appealed to the Appellate Court, and we transferred the
appeals to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1. Although the defendants originally filed a cross appeal to the
Appellate Court, this court, subsequent to the transfer of the appeals, issued
an order that the cross appeal would be treated as a direct appeal.
2
The trial court, in its memorandum of decision, relied on certain testi-
mony in its recitation of the background of the case, without expressly
indicating which testimony it found credible, except with respect to limited
findings in connection with its resolution of various claims. Accordingly,
we read the record in the light most favorable to sustaining the trial court’s
judgment. See Smith v. Greenwich, 278 Conn. 428, 440–41, 899 A.2d 563
(2006); Reyes v. Chetta, 143 Conn. App. 758, 764–65, 71 A.3d 1255 (2013).
3
We note that, at common law, fraudulent misrepresentation and inten-
tional misrepresentation are the same tort. Kramer v. Petisi, 285 Conn. 674,
684 n.9, 940 A.2d 800 (2008).
4
The court found that the plaintiffs failed to provide sufficient evidence
to demonstrate that there was a meeting of the minds as to the clear and
definite terms of the merging of the parties’ companies and therefore rejected
the plaintiffs’ breach of oral contract claim. The court found that the plaintiffs
failed to provide sufficient evidence to demonstrate that Smulders knew or
should have known that his representations to Weiss regarding the merging
of the companies were false when he made them, i.e., that the merger would
not occur, and therefore rejected the plaintiffs’ negligent misrepresentation
claim. The court rejected the plaintiffs’ intentional misrepresentation claim
because it found that the plaintiffs did not provide sufficient evidence to
demonstrate by clear, precise, and unequivocal evidence that the defendants
uttered a false statement that was untrue and known to be untrue. The
court rejected the plaintiffs’ breach of written contract claim because it
found that the plaintiffs failed to inform Garden of Light of the alleged
breach and to provide it with thirty days to cure such breach as required
by the distribution agreement. Finally, the court rejected the plaintiffs’ unjust
enrichment claim in light of its judgment in favor of the plaintiffs on their
promissory estoppel claim.
5
The court found that the defendants had not demonstrated by clear,
precise, and unequivocal evidence that Weiss intentionally misled the defen-
dants as to his financial condition with respect to his bankruptcy.
6
The plaintiffs further argue that the trial court’s judgment may be affirmed
on the alternative ground that Weiss’ promissory estoppel claim does not
belong to the bankruptcy estate because it is based on personal services
performed by Weiss after he filed for bankruptcy. In light of our conclusion
that the plaintiffs have standing even if the claim is deemed property, we
need not reach this alternative ground for affirmance.
7
As we explain later in this part of the opinion, the August, 2003 e-mail,
in and of itself, could not be construed as containing a firm promise to
merge the companies.
8
The estate also includes ‘‘[a]ny interest in property that the estate
acquires after the commencement of the case.’’ 11 U.S.C. § 541 (a) (7) (2012).
The federal courts have reached inconsistent results in determining whether
causes of actions that accrued after the bankruptcy petition has been filed
but during the pendency of the bankruptcy case were ‘‘acquired’’ by the
estate or remained property of the debtor. Compare Correll v. Equifax
Check Services, Inc., 234 B.R. 8, 11 (Bankr. D. Conn. 1997) (holding Fair
Debt Collection Practices Act cause of action arising out of letters received
by debtor postpetition but prior to discharge and close of bankruptcy case
constituted property of estate), with In re Durrett, 187 B.R. 413, 417–19
(Bankr. D.N.H. 1995) (holding that personal injury action arising out of
postpetition airplane accident did not become part of bankruptcy estate);
In re Doemling, 127 B.R. 954, 955–56 (Bankr. W.D. Pa. 1991) (holding that
personal injury action arising out of postpetition automobile accident did
not become part of bankruptcy estate). In the present case, neither party
argues that Weiss’ bankruptcy estate acquired the promissory estoppel claim
after the commencement of the case pursuant to 11 U.S.C. § 541 (a) (7). As
such, we need not consider it. We note, however, that, according to Weiss’
bankruptcy docket, his case closed on March 29, 2004. Therefore, Weiss’
case closed prior to the occurrence of all of the conduct constituting the
plaintiffs’ promissory estoppel claim, with the exception of Smulders’ initial
August, 2003 e-mail.
9
Butner arose out of a dispute between a bankruptcy trustee and a second
mortgagee over the right to the rents collected during the mortgagor’s bank-
ruptcy case. Butner v. United States, supra, 440 U.S. 50. The lower courts
had disagreed whether the bankruptcy court’s adjudication of the debtor
as bankrupt had terminated the receivership that the debtor had previously
established to collect rents, thus requiring the debtor to make a new request
during the bankruptcy case for the appointment of a receiver. Id., 50–51.
The United States Supreme Court specifically noted that it ‘‘did not grant
certiorari to decide whether the Court of Appeals correctly applied [the
state] law.’’ Id., 51. Rather, the sole issue before the Supreme Court was
whether state law or a federal rule of equity should govern the issue. Id.,
52–53. The Supreme Court held that ‘‘[p]roperty interests are created and
defined by state law. Unless some federal interest requires a different result,
there is no reason why such interests should be analyzed differently simply
because an interested party is involved in a bankruptcy proceeding.’’ Id., 55.
10
In Segal, the United States Supreme Court addressed whether loss-
carryback tax refunds were property of the bankruptcy estate under the
predecessor to 11 U.S.C. § 541 (a) (1), when the refunds were sought and
obtained after the debtors had filed for bankruptcy, but the losses constitut-
ing the refunds had been suffered prior to the date the debtors filed their
petition. Segal v. Rochelle, supra, 382 U.S. 376–77. The court noted that,
under the version of the bankruptcy statutory scheme then in effect, the
bankruptcy estate included ‘‘property . . . which prior to the filing of the
petition . . . [the debtor] could by any means have transferred.’’ (Internal
quotation marks omitted.) Id., 377. Relying on the purposes and policies of
the then current bankruptcy scheme; id., 379; the Supreme Court held that
the debtors’ loss-carryback refund claim ‘‘is sufficiently rooted in the pre-
bankruptcy past and so little entangled with the [debtors’] ability to make
an unencumbered fresh start that it should be regarded as ‘property’ under
[our bankruptcy law].’’ Id., 380. The Supreme Court contrasted future wages
or expected bequests, even though those might be transferable under state
law, because they would nonetheless not be called property within the
meaning of the bankruptcy provisions then in effect as that would defeat
the fresh start policy embodied in the bankruptcy discharge. Id., 379–80.
11
We note that there is a debate among the federal courts as to whether
the sufficiently rooted test of Segal survived the enactment of the Bankruptcy
Reform Act of 1978, which replaced the Bankruptcy Act of 1898 with the
current Bankruptcy Code. Compare In re Burgess, 438 F.3d 493, 498–99
(5th Cir. 2006) (noting sufficiently rooted test did not survive enactment of
Bankruptcy Code because 11 U.S.C. § 541 expressly defines property of
bankruptcy estate and former § 70a [5] of Bankruptcy Act did not); In re
Rhinesmith, 450 B.R. 630, 632–33 n.1 (Bankr. W.D. Tex. 2011) (same), with In
re Feiler, 218 F.3d 948, 955–56 (9th Cir. 2000) (noting Congress affirmatively
adopted Segal holding when it enacted current Bankruptcy Code because
legislative history states that ‘‘[t]he result of Segal . . . is followed, and the
right to a refund is property of the estate’’ [internal quotation marks omit-
ted]); see also In re Andrews, 80 F.3d 906, 910 n.9 (4th Cir. 1996) (result
of Segal remains valid under current Bankruptcy Code). In light of our
conclusion that the plaintiffs had standing to pursue their promissory estop-
pel claim irrespective of which test applies, we do not weigh in on this debate.
12
In the section of their brief addressing this claim, the defendants also
asserted a distinct claim that a statement of intent to enter into a contract
in the future cannot form the basis of a promissory estoppel claim. According
to the defendants, Smulders’ discussions with Weiss were statements of
intent to enter into a contract in the future. Our review of the defendants’
answer and posttrial brief reveal that they did not raise this issue at trial.
Moreover, the defendants failed to identify this claim as an issue for our
review in their preliminary statement of the issues; see Practice Book § 67-
4 (a); and failed to set forth a standard of review for this claim. See Practice
Book § 67-4 (d). Accordingly, we decline to address this claim. See Practice
Book § 60-5; see also River Bend Associates, Inc. v. Conservation & Inland
Wetlands Commission, 269 Conn. 57, 82, 848 A.2d 395 (2004); Bell Atlantic
Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d
128 (2000).
13
The plaintiffs cite an Appellate Court case that recognized that ‘‘[r]ecitals
in a contract, such as whereas clauses, are merely explanations of the
circumstances surrounding the execution of the contract, and are not binding
obligations unless referred to in the operative provisions of the contract.’’
(Internal quotation marks omitted.) DeMorais v. Wisniowski, 81 Conn. App.
595, 610, 841 A.2d 226, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004); id.,
610–11 (citing authority from other jurisdictions recognizing principle). Our
research also reveals that other jurisdictions have held that although recitals
do not control over the substantive provisions of a contract, they may be
read in conjunction with those provisions to ascertain the parties’ intention,
particularly where the substantive provisions are ambiguous. See, e.g., Ara-
mony v. United Way of America, 254 F.3d 403, 413 (2d Cir. 2001) (‘‘we
have held that although a statement in a whereas clause may be useful in
interpreting an ambiguous operative clause in a contract, it cannot create
any right beyond those arising from the operative terms of the document’’
[internal quotation marks omitted]); Stowers v. Community Medical Center,
Inc., 340 Mont. 116, 121, 172 P.3d 1252 (2007) (‘‘while ‘whereas’ clauses
cannot be permitted to control over the express provisions of a contract,
they are to be read in conjunction with the operative portions of the contract
in order to ascertain the intention of the parties’’); McKinnon v. Baker, 220
Neb. 314, 317, 370 N.W.2d 492 (1985) (‘‘[Recitals] are generally background
statements and do not ordinarily form any part of the real agreement. If the
agreement proper is ambiguous, then the recitals may be of value in constru-
ing the same.’’). In light of our conclusion that the formation of NEWCO is
collateral to the subject matter of the distribution agreement, and because
the substantive provisions do not refer to the particular language in the
recitals nor is the language of the distribution agreement ambiguous, we
need not analyze or adopt any of these additional rules.
14
In light of our conclusion that the plaintiffs failed to meet their burden
because the valuation of Garden of Light included its two grocery stores
and excluded the value of Food Works, we do not address the plaintiffs’
argument that the trial court improperly found that Weiss’ participation as
a co-owner of NEWCO would likely have lessened its value as we do not
rely on that factor. Similarly, in light of our conclusion, we need not address
the defendants’ argument that the plaintiffs presented improper evidence
of the value of NEWCO by including sales and profits of Garden of Light
from the time period of 2006 through 2008, after Smulders had breached
his promise to Weiss.
15
In their motion for reargument, the defendants contended both that the
trial court lacked authority to reopen the evidence and that they would be
prejudiced by a reopening of the evidence. The trial court did not address
either argument specifically, and the defendants have not argued in their
brief to this court as an alternative ground to affirm the trial court’s decision
that it lacked authority to reopen the evidence. Therefore, we do not address
this issue.
16
The plaintiffs also contend that the defendants made approximately
$100 of sales in person outside of its stores. These sales must be deemed
de minimis by any standard, and therefore we do not consider them.
17
Additionally, the defendants argue that this claim is barred because the
plaintiffs did not plead prior material breach as a separate special defense
as required by Practice Book § 10-50. The defendants have raised this claim
for the first time on appeal. In light of well settled law that ‘‘the failure to
file a special defense may be treated as waived when no objection has been
raised to the offer of evidence on the issue’’; Pepe v. New Britain, 203 Conn.
281, 286, 524 A.2d 629 (1987); see also Schilberg Integrated Metals Corp. v.
Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003); it is
evident that the defendants are not entitled to review of this issue on appeal.
18
The distribution agreement provides in relevant part: ‘‘[E]ither party
may terminate this [a]greement for failure by the other party to perform or
adhere to any of its obligations under this [a]greement by notifying the other
party of such default and allowing the other party thirty (30) days within
which to cure such default.’’
19
The plaintiffs further claim that the trial court improperly rendered
judgment for the defendants on their breach of contract counterclaim
because the defendants had unclean hands, arguing that: (1) in rendering
judgment for the plaintiffs on their promissory estoppel claim, the trial court
found that Smulders had induced Weiss to make significant sacrifices for
the benefit of Garden of Light in reliance on Smulders’ promise to merge
companies; and (2) Garden of Light repeatedly breached the distribution
agreement by making direct sales to customers. We reject the plaintiffs’
argument for two reasons. First, the equitable defense of unclean hands
bars only equitable relief. See, e.g., Thompson v. Orcutt, 257 Conn. 301, 308,
777 A.2d 670 (2001); Eldridge v. Eldridge, 244 Conn. 523, 536, 710 A.2d 757
(1998); DeCecco v. Beach, 174 Conn. 29, 34, 381 A.2d 543 (1977). The defen-
dants sought a legal remedy in the form of money damages for their breach
of contract counterclaim. Second, the plaintiffs have not demonstrated on
the record that the defendants engaged in ‘‘wilful misconduct . . . so as
to invoke the equitable maxim as claimed.’’ DeCecco v. Beach, supra, 35;
see also A & B Auto Salvage, Inc. v. Zoning Board of Appeals, 189 Conn.
573, 578, 456 A.2d 1187 (1983). Indeed, Smulders testified that he would
have cured a breach had he been notified of one. Accordingly, the trial court
did not abuse its discretion in rejecting the plaintiffs’ defense. See Thompson
v. Orcutt, supra, 308 (noting application of unclean hands doctrine rests
within sound discretion of trial court).