R.S. Silver Enterprises, Inc. v. Pascarella ( 2016 )

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R.S. SILVER ENTERPRISES, INC.
v. HENRY PASCARELLA ET AL.
(AC 34601)
Sheldon, Keller and Flynn, Js.
Argued October 13, 2015—officially released February 9, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Alfred J. Jennings, Jr., judge
trial referee [judgment]; Lee, J. [judgment].)
Wesley W. Horton, with whom were Kenneth J.
Bartschi and, on the brief, Brendan J. O’Rourke and
Daniel W. Moger, Jr., for the appellants (named defen-
dant et al.).
Hugh D. Hughes, for the appellee (plaintiff).
Opinion
SHELDON, J. This breach of contract action, filed by
the plaintiff, R.S. Silver Enterprises, Inc., against the
defendants, Henry Pascarella and Riversedge Partners,
returns to this court following our remand to the trial
court for resolution of a jurisdictional challenge to the
plaintiff’s standing to prosecute this action, as pleaded
in the defendants’ twenty-first special defense. R.S. Sil-
ver Enterprises, Inc. v. Pascarella, 148 Conn. App. 359,
366, 86 A.3d 471 (2014). Pending resolution of that chal-
lenge, which was based upon the plaintiff’s alleged
assignment to a nonparty of its rights and interests
under the contract it here claims that the defendants
breached, we retained jurisdiction over and stayed fur-
ther proceedings as to the defendants’ remaining claims
in their prior appeal. Id. On remand, the trial court,
Lee, J., rejected the defendants’ jurisdictional challenge,
finding that the plaintiff never assigned away its rights
and interests under the contract here at issue. The
defendants now challenge that determination, along
with several earlier rulings by the trial court, J. Downey,
J., and Hon. Alfred J. Jennings, Jr., judge trial referee,
over which we retained jurisdiction pending the remand
hearing. Because we agree with the trial court’s rejec-
tion of the jurisdictional challenge presented in the
defendants’ twenty-first special defense, we must now
reach and address those other challenged rulings on
this appeal.
The other challenged rulings over which we retained
jurisdiction involve alleged errors of two types. The
first are alleged errors by the pretrial motions judge,
J. Downey, J., in striking certain of the defendants’
special defenses. Specifically, the defendants challenge
the trial court’s orders striking: their second special
defense, in which they alleged that the plaintiff is barred
from pursuing this action as a matter of public policy
because reinstatement of the plaintiff as a corporation
by the Secretary of the State in order to pursue this case
was made possible only by the plaintiff’s defrauding of
the Commissioner of Revenue Services; their fourth
special defense, in which they alleged that the plaintiff
is barred from pursuing this action as a matter of public
policy because it engaged in bankruptcy fraud by enter-
ing into the contract here at issue; and their sixth special
defense, in which they challenged the plaintiff’s legal
capacity to bring the instant action in 2006 on the
ground that it was barred from obtaining reinstatement
as a Connecticut corporation after 1994 pursuant to
General Statutes § 33-995. Secondly, the defendants
claim that the ‘‘judgment of the trial court is ineffective
[because the court, Hon. Alfred J. Jennings, Jr., judge
trial referee, did not issue its final decision until] 966
days after the completion of trial in violation of General
Statutes § 51-183b.’’ We conclude that the trial court
did not err in striking any of the challenged special
defenses. We also conclude that the defendants waived
the time limitation set forth in § 51-183b, and thus that
the date of issuance of the trial court’s final decision
does not make its judgment ineffective. Accordingly,
we affirm the judgment of the trial court.
This court recited the following relevant factual and
procedural history in deciding the defendants’ prior
appeal. ‘‘On April 28, 1997, the plaintiff entered into a
‘participation agreement’ with the defendants, under
which the plaintiff invested $1,250,000 in a partnership
formerly known as SPD Associates (SPD), and now
known as Riversedge Partners, involving owning and
managing a commercial building in Greenwich. Pursu-
ant to that agreement, the plaintiff, in exchange for its
investment, was given the contractual right to partici-
pate ‘in any increase in the economic value’ and ‘future
economic enhancement’ of the building. More specifi-
cally, the agreement entitled the plaintiff to split equally
all amounts received by the defendants in connection
with the building after the making of certain priority
payments.
‘‘On October 11, 2006, the plaintiff commenced this
action, alleging that the defendants had failed to split
with it any amounts they had received in connection
with the building, and, in fact, had never paid the plain-
tiff anything pursuant to the agreement. The plaintiff
also sought an accounting of the business and affairs
of SPD and alleged breach of fiduciary duty. In
response, the defendants filed an answer and twenty-
two special defenses. On August 19, 2008, the plaintiff
filed a motion to strike all but two of the defendants’
special defenses, in response to which the defendants
filed an objection. On September 26, 2008, the plaintiff
responded to the defendants’ objection by filing a reply
memorandum of law. On September 29, 2008, Judge
Downey orally granted the plaintiff’s motion to strike
several of the defendants’ special defenses, including
the defendants’ second, fourth, sixth and twenty-first
special defenses, which are the subject of the defen-
dants’ appeal. In so doing, the court noted simply, with-
out further explanation, that the special defenses it was
striking ‘are either not recognized under Connecticut
law or are not appropriately drafted such that they
would survive a motion to strike.’ The court then stated:
‘I adopt the foundation for my decision all the argu-
ments advanced in [the plaintiff’s] brief of August 19,
[2008] and September 26, [2008]. . . .
‘‘The case was then tried before Judge Jennings on
various dates in early 2009. At the conclusion of trial,
the defendants sought to withdraw their counterclaims,
but the court, having determined that no good cause
existed to permit the withdrawal, instead dismissed the
counterclaims. The court ultimately rendered judgment
in favor of the plaintiff on its breach of contract claim,
awarding it damages in the amount of $1,782,848, plus
prejudgment interest in the amount of $819,475, for a
total award of $2,602,323. The court ruled in favor of
the defendants on the plaintiff’s claims for an account-
ing and for breach of fiduciary duty. The defendants
appealed and the plaintiff filed a cross appeal from the
court’s judgment on its breach of fiduciary duty claim.
On April 17, 2013, the plaintiff withdrew its cross appeal,
leaving only the defendants’ appeal from the trial court’s
judgment on the plaintiff’s breach of contract claim
for our consideration.’’ (Footnotes omitted.) R.S. Silver
Enterprises, Inc. v. Pascarella, supra,148 Conn. App.
363–64.
As previously noted, this court remanded this case
for adjudication of the jurisdictional challenge asserted
in the defendants’ twenty-first special defense. On
remand, the trial court held hearings over several days,
during which testimony and exhibits were presented,
and the parties submitted posthearing memoranda. The
court issued a memorandum of decision dated January
26, 2015, in which it concluded that the ‘‘plaintiff did
not assign its right to payment under the [p]articipation
[a]greement to Silver LLC, did not lack standing to sue,
and accordingly, that the court has subject matter juris-
diction over this controversy.’’ The defendants have
appealed from that determination. Additional facts will
be set forth as necessary.
I
We begin, as we must, with an examination of the
defendants’ claims that the plaintiff did not have stand-
ing to bring this action, and thus that the trial court did
not have subject matter jurisdiction to hear it. See New
Hartford v. Connecticut Resources Recovery Authority,
291 Conn. 511, 518–19, 970 A.2d 583 (2009) (when issue
affecting court’s subject matter jurisdiction raised,
court is obliged to decide that issue before taking one
step further to adjudicate other matters pending before
it in the action). They have challenged the plaintiff’s
standing in two of their special defenses, the twenty-
first and the sixth, which we will address in turn.
We begin by setting forth the applicable standard of
review. ‘‘If a party is found to lack standing, the court
is without subject matter jurisdiction to hear the case.
Because standing implicates the court’s subject matter
jurisdiction, the plaintiff ultimately bears the burden of
establishing standing. A trial court’s determination of
whether a plaintiff lacks standing is a conclusion of
law that is subject to plenary review on appeal. We
conduct that plenary review, however, in light of the
trial court’s findings of fact, which we will not overturn
unless they are clearly erroneous. . . . In undertaking
this review, we are mindful of the well established
notion that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged. . . . This involves a two
part function: where the legal conclusions of the court
are challenged, we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision;
where the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out
in the memorandum of decision are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, those facts are clearly
erroneous. . . . A court’s determination is clearly erro-
neous only in cases in which the record contains no
evidence to support it, or in cases in which there is
evidence, but the reviewing court is left with the definite
and firm conviction that a mistake has been made.’’
(Citations omitted; internal quotation marks omitted.).
Success, Inc. v. Curcio, 160 Conn. App. 153, 162, 124
A.3d 563, cert. denied, 319 Conn. 952, 125 A.3d 531(2015).
With these principles in mind, we turn to the merits
of the defendants’ two challenges to the plaintiff’s stand-
ing, and thus to the trial court’s jurisdiction.
A
We first address the defendants’ challenge to the trial
court’s rejection of their twenty-first special defense,
in which they alleged that before this action was com-
menced, the plaintiff had assigned to a nonparty its
rights under the participation agreement, the contract
which it claims in this action that the defendants
breached. The defendants claim that the trial court
erred in determining that the formation agreement,
under which the plaintiff allegedly assigned its rights
under the participation agreement to a nonparty, was
clear and unambiguous, and that the plaintiff did not
thereby assign its rights under the participation
agreement to any other party. We are not persuaded
by the defendants’ arguments.
The following additional facts are relevant to this
claim. In the defendants’ prior appeal, this court decided
that the trial court, J. Downey, J., had improperly
stricken the defendants’ twenty-first special defense. In
so concluding, we reasoned as follows: ‘‘In their twenty-
first special defense, the defendants alleged the occur-
rence of a transaction that purportedly resulted in the
transfer of all of the plaintiff’s rights under the participa-
tion agreement to a third party. . . . A valid assignment
transfers to the assignee exclusive ownership of all of
the assignor’s rights to the subject assigned and extin-
guishes all of those rights in the assignor. . . . If
proven, the facts set forth in the defendants’ twenty-
first special defense would establish that the plaintiff
had no right to sue the defendants for breach of the
participation agreement. Because such allegations were
not inconsistent with the allegations of the plaintiff’s
complaint, but, nevertheless, if proven, would have
defeated the plaintiff’s claims against them, the trial
court improperly struck that special defense.’’ (Citation
omitted; internal quotation marks omitted.) R.S. Silver
Enterprises, Inc. v. Pascarella, supra, 148 Conn. App.
365–66.
On remand, the trial court made the following find-
ings of fact.1 ‘‘In late 1996 or early 1997, Robert Silver
or an entity controlled by him accepted a real estate
broker’s commission of $2.5 million in settlement of a
dispute relating to the real estate commission arising
out of a project involving a company named 9 West in
Stamford. . . . Henry Pascarella, who had represented
Silver in the dispute as his attorney, introduced Silver
[to] a $1,250,000 investment opportunity related to an
office building at 200 Pemberwick Road in Greenwich,
which Robert Silver had developed in the mid-1980s.
Silver used half of the commission money received from
the 9 West transaction to fund the Pemberwick invest-
ment. . . .
‘‘On or about April 28, 1997, the investment was docu-
mented in a handwritten draft of the [p]articipation
[a]greement, which recites that in return for the
$1,250,000 investment, R.S. Silver & Company was
assigned an economic interest in the anticipated
restructured SPD Associates partnership (which owned
the Pemberwick property), to be called the ‘Silver Par-
ticipation.’ The Silver Participation required that certain
preference or priority payments be paid first to Pascare-
lla, who was a principal in SPD Associates. Thereafter,
cash distributions from SPD were to be paid one-half
to Pascarella and one-half to R.S. Silver and Company.
. . . Section 3 of the [p]articipation [a]greement pro-
hibits any sale, transfer or encumbrance of the Silver
Participation without Pascarella’s written consent,
which he may give or withhold ‘with or without any
reason.’ . . . Silver never requested or obtained per-
mission from Pascarella to assign his interest in the
[p]articipation [a]greement to anyone. . . . Silver pro-
vided some assistance with marketing the Pemberwick
property to potential tenants, which he characterized
as working for himself and Pascarella as owners. Pasc-
arella did not pay him a commission for this work. . . .
‘‘In 2001, Silver Co. needed an infusion of money
to continue operating. Silver was introduced by Nick
DeLuca, who had worked for Silver’s company for fif-
teen years, to Robert Gillon, a successful, retired busi-
nessman, who was interested in investing and
participating in a commercial real estate brokerage
firm. . . . After several rounds of discussions, Silver,
Silver Co. (referred to as ‘Silvercorp’), Gillon and
DeLuca entered into a [f]ormation and [c]ontribution
[a]greement as of September 28, 2001 (the ‘[f]ormation
[a]greement’). Pursuant to the [formation] agreement,
the parties formed a limited liability company to be
known as R.S. Silver & Co. LLC (‘Silver LLC’) to engage
in the business of commercial real estate brokerage.
Silver Co. was to change its name and to discontinue
the conduct of real estate brokerage ‘except as may be
necessary to wind up its affairs.’ . . . Silver’s capital
contribution was described in Paragraph 2 and on
Schedule A as customer files/lists, including databases
and customer relationships, including ‘the name ‘R.S.
Silver & Co.’ and any variation and any goodwill associ-
ated therewith.’ Robert Silver had been in the brokerage
business for approximately forty years at the time. . . .
‘‘Paragraph 8 of the [f]ormation] [a]greement pro-
vided: ‘As of the effective date of this [a]greement, all
commissions and other income resulting from the busi-
ness of real estate brokerage conducted under the name
of ‘R.S. Silver & Co.’ shall be paid to and belong to the
LLC. However, as a transitional matter, the Parties agree
to adjust the commissions payable on the following
transactions if and when the commissions are earned
and paid.’ . . .
‘‘Paragraph 9 of the [f]ormation [a]greement pro-
vided: ‘The effective date of this [a]greement shall be
September 1, 2001. This shall mean that any ‘R.S. Silver’
income or reasonable and necessary expense shall be
adjusted between Silvercorp and the LLC as of such
date.’ . . .
‘‘The [f]ormation [a]greement does not mention the
Silver Participation in the [p]articipation [a]greement.’’
On examining the language of the formation
agreement, the trial court on remand found that: ‘‘The
language of the [f]ormation [a]greement must be inter-
preted on the strength of its language and the ordinary
usage of its terms. It is uncontested that the agreement
makes no mention of the [p]articipation [a]greement or
the Silver Participation, although DeLuca testified that
he was generally aware of it at the time of the execution
of the [f]ormation [a]greement. The schedule of assets
transferred by Silver Co. to the new LLC, contained
in Paragraph 2 and Schedule A, does not include any
reference to Silver’s interest in the [p]articipation
[a]greement.
‘‘As a result, if transferred, the interest would have
to be included in the general revenue flow assigned
under Paragraph 8. As noted, that section provides that
all commissions or other income resulting from the
business of real estate brokerage conducted under the
name R.S. Silver & Co. shall be paid to and belong to
the LLC. Plainly, the payout from Silver’s investment
in the SPD partnership does not constitute a brokerage
commission. As Judge Jennings found in the 2010 deci-
sion, at [page] 25, It is undisputed that the Silver Partici-
pation was not a partnership interest or an equity
interest. . . . It is also undisputed that the Silver Par-
ticipation was a contingent speculative investment. As
noted by defendants, it might be encompassed by the
phrase or other income, but the section limits its reach
to income resulting from the business of real estate
brokerage conducted under the name of R.S. Silver &
Co. However, the SPD partnership is not a brokerage
business conducted by plaintiff. By contrast, the four
carve-outs listed in Paragraph 8 involved potential reve-
nue from plaintiff’s real estate brokerage business.
‘‘[The] defendants’ assertion that the Silver Participa-
tion might be considered as arising from real estate
brokerage because the money used to purchase it was
earned as a commission from the 9 West transaction
is not persuasive. Because Silver had spent his career
earning brokerage commissions, this construction
would put any asset or revenue of any kind purchased
by Silver within the ambit of the clause, including stock
dividends, the gain from the sale of his residence, or
even lottery tickets.
‘‘Paragraph 9 points away from this absurd conclu-
sion. It apportions R.S. Silver income earned or
expenses incurred prior to September 1, 2001, to Silver
Co. and income earned or expenses incurred thereafter
to Silver LLC. Because the 9 West commission was
earned in 1997, it would remain with Silver Co. under
Paragraph 9.2 . . .
‘‘In summary, the court concludes that the only rea-
sonable construction of the language of the [f]ormation
[a]greement is that the Silver Participation was not
assigned by its terms.
‘‘As a result of the foregoing, the court has found the
relevant language of the [f]ormation [a]greement to be
unambiguous and that it should be interpreted on the
basis of its language and the circumstances of the trans-
action. [The] defendants assert that this is error and
that they should have been allowed to present evidence
of the parties’ views on the purpose or meaning of the
language of the agreement, but this testimony is not
admissible in the face of unambiguous contractual lan-
guage. Further, the court notes that, to the extent such
testimony came in but was not credited by the court,
it was self-serving and mutually contradictory. Silver
was adamant that he did not assign the participation;
on the other hand, DeLuca felt that everything was
assigned. Gillon was unclear if he was aware of the
[p]articipation [a]greement at the time of signing the
[f]ormation [a]greement. As a result, [the] defendants
cannot show prejudice from the court’s ruling that the
language of the [f]ormation [a]greement is not ambigu-
ous with respect to whether the Silver Participation was
assigned thereunder. With respect to [the] defendants’
objection to the admission of the 2001 financial state-
ment, the court advises that it gave no weight to that
document in relation to the question at issue in this
trial because it was not audited and the source of its
information was not established. Because the court
holds for [the] plaintiff on the meaning of the contract,
it does not address [the] plaintiff’s numerous alternative
arguments. . . .
‘‘By reason of the foregoing, the court concludes that
the defendants have not satisfied their burden of prov-
ing by a fair preponderance of the evidence that the
Silver Participation was assigned to the Silver LLC as
alleged in the twenty-first special defense. Accordingly,
their challenge to the jurisdiction of the court in these
proceedings fails.’’ (Footnote added; internal quotation
marks omitted.)
The defendants now claim that the trial court erred
in finding the formation agreement clear and unambigu-
ous and that the plaintiff had not assigned to a nonparty
its rights under the participation agreement. ‘‘It is well
established that the determination as to whether lan-
guage of a contract is plain and unambiguous is a ques-
tion of law subject to plenary review. . . . If, however,
the contractual language is found to be ambiguous,
[s]uch ambiguity permits the trial court’s consideration
of extrinsic evidence as to the conduct of the parties.
. . . [T]he trial court’s interpretation of a contract,
being a determination of the parties’ intent, is a question
of fact that is subject to reversal on appeal only if it is
clearly erroneous. . . . Accordingly, our review is two-
fold. First, we must determine de novo whether the
contractual language is ambiguous. If we conclude that
it is, we must determine whether the trial court’s factual
findings are clearly erroneous.
‘‘In determining whether a contract is ambiguous, the
words of the contract must be given their natural and
ordinary meaning. . . . A contract is unambiguous
when its language is clear and conveys a definite and
precise intent. . . . The court will not torture words
to impart ambiguity where ordinary meaning leaves no
room for ambiguity. . . . Moreover, the mere fact that
the parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Citations omitted; internal
quotation marks omitted.) Perez v. Carlevaro, 158 Conn.
App. 716, 722-23, 120 A.3d 1265 (2015).
In support of their claim that the formation agreement
was ambiguous,3 the defendants, in their joint brief to
this court, make the following assertions about the lan-
guage of that agreement: ‘‘The key language in para-
graph 1 is that the plaintiff will discontinue the conduct
of a real estate brokerage business except as may be
necessary to wind up its affairs. . . .
‘‘The key language in paragraph 8 is, all commissions,
or other income resulting from the business of real
estate brokerage conducted under the name R.S. Sil-
ver & Co. shall be paid to and belong to the LLC. . . .
‘‘The key language in paragraph 9 is, any R.S. Silver
income . . . shall be adjusted between Silvercorp
[plaintiff] and the LLC as of such date [September 1,
2001].’’ (Citations omitted; internal quotation marks
omitted.)
The defendants contend that ‘‘[t]he question is
whether this language in paragraphs 1, 8 and 9 can
reasonably be read to support this special defense,’’
namely, that the plaintiff assigned its rights under the
participation agreement to a third party. There is no
language in the previously quoted provisions of the
agreement, or, in fact, in the entire agreement, that
explicitly states that the plaintiff assigned such contrac-
tual rights. Rather, to prove their case, the defendants
parse the language of various phrases in the previously
quoted provisions of the formation agreement, focusing
on certain words or phrases, which, when read in isola-
tion, might be claimed to suggest ambiguity. It cannot
reasonably be doubted that, taken individually, various
words or phrases taken from the subject language, such
as ‘‘any’’ or ‘‘other,’’ could be given differing interpreta-
tions, and thus, potentially, be considered ambiguous.
When, however, those words or phrases are read, as
they must be, both in the particular sentences in which
they are used and considered in the broader context
of the entire agreement, we agree with the trial court
that they unambiguously did not assign any of the plain-
tiff’s rights under the participation agreement to a third
party. Instead, the plain language of the formation
agreement makes it clear that that agreement is strictly
a real estate brokerage agreement. Accordingly, it
makes no mention whatsoever of the participation
agreement. The trial court appropriately rejected the
defendants’ arguments to the contrary, and thereby
properly determined that it did not lack subject matter
jurisdiction over this action on the ground asserted in
the defendants’ twenty-first special defense.
B
The defendants also challenged the trial court’s sub-
ject matter jurisdiction in their sixth special defense,
wherein they claimed that the plaintiff lacked the legal
capacity to bring this action because it should have been
barred from reinstatement as a Connecticut corporation
before this action was commenced. The plaintiff count-
ers that the defendants have no standing to assert this
jurisdictional challenge because they are not aggrieved
by the Secretary of the State’s reinstatement of it. We
agree with the plaintiff.
‘‘It is axiomatic that aggrievement is a basic require-
ment of standing . . . . If a party is found to lack
[aggrievement], the court is without subject matter
jurisdiction to determine the cause. . . . There are two
general types of aggrievement, namely, classical and
statutory; either type will establish standing . . . .’’
(Citations omitted; internal quotation marks omitted.)
Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91–
92, 971 A.2d 1 (2009). ‘‘Classical aggrievement requires
a two part showing. First, a party must demonstrate a
specific, personal and legal interest in the subject mat-
ter of the [controversy], as opposed to a general interest
that all members of the community share. . . . Second,
the party must also show that the [alleged conduct] has
specially and injuriously affected that specific personal
or legal interest. . . . [I]n cases of statutory
aggrievement, particular legislation grants standing to
those who claim injury to an interest protected by that
legislation. . . . [T]he existence of statutory standing
. . . depends on whether the interest sought to be pro-
tected by the [plaintiffs] is arguably within the zone of
interests to be protected or regulated by the statute
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Gillon v. Bysiewicz, 105 Conn. App. 654, 659–
60, 939 A.2d 605 (2008).
The defendants similarly challenged the reinstate-
ment of R.S. Silver & Company, Inc., in a previous action
in which they sought a declaratory judgment that the
reinstatement had been based on a fraudulently induced
statement by the Commissioner of Revenue Services
to the Secretary of the State that back taxes owed by
R.S. Silver & Company, Inc., had been paid. Pascarella
v. Commissioner of Revenue Services, 119 Conn. App.
771, 772–73, 989 A.2d 1092, cert. denied, 296 Conn. 904,
992 A.2d 329 (2010). The plaintiffs named the Commis-
sioner of Revenue Services, the Secretary of the State
and R.S. Silver Enterprises, Inc., as defendants in the
previous action. The trial court dismissed the action
for lack of subject matter jurisdiction. On appeal, this
court affirmed the judgment of dismissal, reasoning as
follows: ‘‘The plaintiffs are defendants in an unrelated
action brought against them in 2006 by the defendant,
R.S. Silver Enterprises, Inc. . . . The plaintiffs claim
that they are aggrieved because they are forced to
defend a lawsuit against R.S. Silver Enterprises, Inc.,
and argue that R.S. Silver Enterprises, Inc., would not
be able to maintain its lawsuit if it had not been rein-
stated by the secretary of the state. We review the
plaintiffs’ claim de novo . . . and conclude that the
plaintiffs failed to provide evidence of aggrievement.
The plaintiffs’ participation in an unrelated lawsuit does
not establish classical aggrievement, and this court has
held that § 33-892 [the statute concerning reinstatement
following administrative dissolution] does not extend
statutory standing to third parties to challenge the gen-
eral fitness of an applicant for reinstatement.’’ (Citation
omitted; footnotes omitted.) Id., 772–74.
On the basis of this court’s prior determination that
the defendants are not aggrieved by the reinstatement
of the plaintiff following its administrative dissolution,
they likewise lack standing to assert a challenge to the
plaintiff’s reinstatement as a special defense to this
action. The trial court thus properly rejected this chal-
lenge to its subject matter jurisdiction.
II
The defendants also claim that the trial court erred
by striking their second special defense, in which they
alleged that the plaintiff is barred from pursuing this
action as a matter of public policy because reinstate-
ment of the plaintiff as a corporation by the Secretary
of the State in order to pursue this case was made
possible by the plaintiff’s defrauding of the Commis-
sioner of Revenue Services; and their fourth special
defense, in which they alleged that the plaintiff is barred
from pursuing this matter as a matter of public policy
because it engaged in bankruptcy fraud when it entered
into the contract here at issue. We are not persuaded.
We begin by setting out the well established standard
of review in an appeal from the granting of a motion
to strike. ‘‘Because a motion to strike challenges the
legal sufficiency of a pleading and, consequently,
requires no factual findings by the trial court, our review
of the court’s ruling . . . is plenary. . . . We take the
facts to be those alleged in the [pleading] that has been
stricken and we construe the [pleading] in the manner
most favorable to sustaining its legal sufficiency. . . .
Thus, [i]f facts provable in the [pleading] would support
a [special defense], the motion to strike must be denied.
. . . Moreover, we note that [w]hat is necessarily
implied [in an allegation] need not be expressly alleged.
. . . It is fundamental that in determining the suffi-
ciency of a [pleading] challenged by a . . . motion to
strike, all well-pleaded facts and those facts necessarily
implied from the allegations are taken as admitted. . . .
Indeed, pleadings must be construed broadly and realis-
tically, rather than narrowly and technically.’’ (Internal
quotation marks omitted.) Violano v. Fernandez, 280
Conn. 310, 317–18, 907 A.2d 1188 (2006).
‘‘Practice Book § 10-50, which sets forth the basic
parameters for special defenses, provides: No facts may
be proved under either a general or special denial
except such as show that the plaintiff’s statements of
fact are untrue. Facts which are consistent with such
statements but show, notwithstanding, that the plaintiff
has no cause of action, must be specially alleged. Thus,
accord and satisfaction, arbitration and award,
coverture, duress, fraud, illegality not apparent on the
face of the pleadings, infancy, that the defendant was
non compos mentis, payment (even though nonpay-
ment is alleged by the plaintiff), release, the statute of
limitations and res judicata must be specially pleaded,
while advantage may be taken, under a simple denial,
of such matters as the statute of frauds, or title in a
third person to what the plaintiff sues upon or alleges
to be the plaintiff’s own.’’ (Internal quotation marks
omitted.) R.S. Silver Enterprises, Inc. v. Pascarella,
supra, 148 Conn. App. 365.
A
The defendants claim that the trial court erred in
striking their second special defense, in which they
alleged that the plaintiff is barred from pursuing this
action as a matter of public policy because reinstate-
ment of the plaintiff as a corporation by the Secretary
of the State in order to pursue this case was made
possible only because of the plaintiff’s defrauding of
the Commissioner of Revenue Services. As explained
in part I B of this opinion, and this court’s previous
decision in Pascarella v. Commissioner of Revenue
Services, supra, 119 Conn. App. 771, the defendants
lack standing to challenge the plaintiff’s reinstatement.
We thus conclude that the trial court properly struck
the defendants’ second special defense.
B
The defendants also claim that the trial court improp-
erly struck their fourth special defense, in which they
alleged that the plaintiff is barred from pursuing this
matter as a matter of public policy because it engaged
in bankruptcy fraud when it entered into the contract
here at issue. In their brief to this court, the defendants
explained this claim as follows: ‘‘The fourth special
defense alleged, in clear and detailed terms set forth
in twenty-three paragraphs, a series of facts demonstra-
ting that [the] plaintiff wrongfully purchased its contrac-
tual right in the Participation Agreement using funds
($1,250,000) that had been pledged to Silver’s bank-
ruptcy creditors. . . . These allegations established a
strong defense to [the] plaintiff’s claims under the
Supreme Court’s decision in Thompson v. Orcutt, 257
Conn. 301, 777 A.2d 670 (2001), which holds that allega-
tions of bankruptcy fraud constitute a cognizable
unclean hands defense under Connecticut law.’’ (Cita-
tion omitted; internal quotation marks omitted.)
‘‘The doctrine [of unclean hands] generally applies
[only] to the particular transaction under consideration,
for the court will not go outside the case for the purpose
of examining the conduct of the complainant in other
matters or questioning his general character for fair
dealing. The wrong must . . . be in regard to the matter
in litigation. . . . Though an obligation be indirectly
connected with an illegal transaction, it will not thereby
be barred from enforcement, if the plaintiff does not
require the aid of the illegal transaction to make out
his case. . . . [S]ee . . . Keystone Driller Co. v. Gen-
eral Excavator Co., 290 U.S. 240, 245, 54 S. Ct. 146, 78
L. Ed. 293 (1933) (courts ‘do not close their doors
because of [a] plaintiff’s misconduct, whatever its char-
acter, that has no relation to anything involved in the
suit, but only for such violations of conscience as in
some measure affect the equitable relations between
the parties in respect of something brought before the
court for adjudication’); Orsi v. Orsi, 125 Conn. 66, 70,
3 A.2d 306 (1938) (clean hands doctrine prevents ‘a
party from asserting in court a title where, in order to
do so, he must rely upon a transaction tainted with
illegality or inequity’). In addition, the conduct alleged
to be unclean must have been done directly against the
interests of the party seeking to invoke the doctrine,
rather than the interests of a third party. Orsi v. Orsi,
supra, 69–70 (‘[t]he wrong must be done to the defen-
dant himself and must be in regard to the matter in
litigation’ . . . .’’ Thompson v. Orcutt, supra, 257
Conn. 310–11.
In the twenty-three paragraphs of their fourth special
defense, the defendants never mention unclean hands.
Rather, they allege that Silver defrauded the Bankruptcy
Court and his creditors, and thus that the plaintiff is
barred from maintaining this action because ‘‘[i]t is
contrary to established public policy of the state of
Connecticut for its courts to be used in furtherance
of a fraud on the administration of a United States
Bankruptcy Court by entertaining a Silver lawsuit based
on funds Silver washed through a bank account con-
trolled by Silver, in the name of the administratively
dissolved entity R.S. Silver & Co., Inc., to hide a commis-
sion that Silver and his companies had assigned to Sil-
ver’s creditors in the Bankruptcy Court.’’ The twenty-
three paragraphs of the defendants’ fourth special
defense contain allegations as to the factual circum-
stances that resulted in the plaintiff’s alleged defrauding
of Silver’s creditors and the Bankruptcy Court. Other
than asserting that Silver used funds that he had pre-
viously pledged to his bankruptcy creditors to fund his
interest in the participation agreement, the defendants
have not alleged any connection between their allega-
tions of unclean hands and the plaintiff’s breach of
contract claim. There is no allegation as to how its
special defense is connected to the allegations of the
complaint or how the defendants allegedly were harmed
by the plaintiff’s alleged bankruptcy fraud. The origin
or source from which the plaintiff obtained the funds
for the participation agreement does not have any bear-
ing on the plaintiff’s breach of contract claim. We thus
conclude that the trial court properly struck the defen-
dants’ fourth special defense.
III
Finally, the defendants claim that the trial court’s
judgment is ‘‘ineffective because it was issued 966 days
after the completion of trial in violation of . . . General
Statutes § 51-183b [which requires a court to issue a
decision on a matter heard by it within 120 days from
the date of the end of the proceeding].’’ The plaintiff
argues that the defendants waived the 120 day rule. We
agree with the plaintiff.
The following additional procedural history is rele-
vant to this claim. The trial in this matter was held on
various dates in early 2009. The final posttrial brief was
filed by the defendants on September 1, 2009, and the
trial court declared the trial complete at that time and
reserved its decision. Prior to the expiration of the 120
day period within which it was required to issue its
decision, the court, through its court officer, asked the
parties to extend the due date of its decision.4 On
December 24, 2009, less than one week prior to the
statutory 120 day deadline, counsel for the defendant
sent an e-mail to the court, wherein he stated: ‘‘I write
to confirm our phone conversation. Mr. Pascarella and
counsel to the defendants are happy to consent to an
extension of the deadline for the pending trial court
decision.’’ The plaintiff sent a similar e-mail to the court
on December 30, 2009.
On June 4, 2010, counsel for the plaintiff sent an
e-mail to the court clerk, with copies to all parties,
inquiring as to the status of the decision in this matter.
On June 9, 2010, the clerk responded to the inquiry,
with copies to all parties, reporting that ‘‘[t]he court
should have a decision in two weeks.’’ Again, on the
morning of July 14, 2010, counsel for the plaintiff
e-mailed the court clerk, with copies to all parties, ask-
ing when the court would be issuing its decision. The
court issued its memorandum of decision later that
afternoon.
In its July 14, 2010 memorandum of decision, the
court found in favor of the plaintiff on its breach of
contract claim—as to liability only—and in favor of the
defendants on the plaintiff’s breach of fiduciary duty
claim.5 As to the plaintiff’s claim for damages for the
breach of contract and its further claim for an account-
ing, the court explained that it was ‘‘unclear to the
court at this point if the plaintiff [was] still seeking an
accounting . . . to develop additional evidence on the
issue of damages. For that reason, the court is not
making any ruling on damages at this point, but will seek
input from all parties as to the need for and purpose of
further proceedings . . . . ’’ Accordingly, the court
issued the following additional order: ‘‘Since, by
agreement, proceedings on Count Two, seeking an
accounting, were deferred pending the court’s ruling
on Count One, and judgment on liability only has now
entered against the defendants on Count One for breach
of contract, the plaintiff shall, not later than July 23,
2010, file a supplemental memorandum indicating
whether or not further proceedings are requested on
Count Two, and, if so, the scope of such proceedings
contemplated by [the] plaintiff. [The] plaintiff is also
requested, in view of the judgments which have entered,
to list in its memorandum each item in the ‘Prayer
for Relief’ and the ‘Demand for Relief’ attached to the
amended complaint of January 26, 2009, indicating
which items of relief the plaintiff is presently seeking.
The defendants may respond by August 3, 2010. After
reviewing those memoranda the court will determine
what further proceedings, if any, will be held prior to
a determination of damages on Count One and the dis-
position of Count Two.’’
On July 23, 2010, the plaintiff filed a memorandum
of law in response to the court’s order, advancing its
position that further proceedings were necessary on
the matters as to which the court had reserved decision.
On August 3, 2010, the defendants filed separate memo-
randa of law in response to the plaintiff’s memorandum
of law.
On August 13, 2010, the defendants filed a motion to
set aside the decision and for a new trial pursuant to
§ 51-183b, arguing that their December 24, 2009 consent
to the extension of the 120 day deadline had been a
‘‘limited purpose consent.’’6 They argued that they had
given their consent to an extension for the ‘‘whole’’
decision, ‘‘not just [a decision on] liability, with damages
to be decided later.’’ They further argued that their
consent to an extension had been for a ‘‘reasonable
time,’’ but that 197 days, the amount of time that elapsed
between the date of its consent and the date of issuance
of the court’s decision, was unreasonable. The plaintiff
objected to the defendants’ motion to set aside the
decision and for a new trial on the ground that the
defendants had waived the deadline imposed by § 51-
183b and ambushed the trial court by waiting until after
the court issued its adverse decision on the issue of
liability before invoking the statute.
The court held a hearing on the defendants’ motion on
September 8, 2010. At the hearing, the parties presented
their respective arguments to the court and agreed to
the introduction into evidence of the previously
described e-mails that had been attached to the pre-
viously filed motions. Because the defendants took
issue with the court’s statement that they had agreed
that the plaintiff’s claim for an accounting would be
deferred to a later date, the court reserved its ultimate
decision on the defendants’ motion to give them time
to order and examine the transcripts of all of the pro-
ceedings prior to trial to ascertain the accuracy of the
court’s determination in that regard. Despite its deter-
mination to reserve judgment on the defendants’
motions, the court explained at length why it had taken
197 days after the expiration of the initial 120 day period
to render its July 14, 2010 decision, noting its intensive
workload and trial schedule while the decision was
pending, in addition to the difficulty of the case and
the voluminous record that it reviewed multiple times.7
The court agreed that the defendants’ December, 2009
consent to extend the 120 day period had been for a
reasonable time, but disagreed that the additional 197
days that it took to issue its decision was unreasonable.
The court continued the matter for four weeks, to Octo-
ber 6, 2010, to allow counsel for the defendants an
opportunity to review transcripts from previous court
proceedings8 to ascertain whether the parties had in fact
agreed to defer the plaintiff’s claim for an accounting.
On October 6, 2010, the defendants filed a supplemen-
tal memorandum of law in support of their motion to
set aside the trial court’s decision and for a new trial.9
Having reviewed the transcripts of the proceedings that
occurred prior to the trial, counsel for the defendants
reasserted their argument that there had never been an
agreement to defer the plaintiff’s claim for an account-
ing, and thus that the court’s partial judgment of July
14, 2010, improperly purported to consider further pro-
ceedings on the accounting claim and the damages por-
tion of the breach of contract claim.10 The defendants
also reiterated their claim that the additional period of
time, from December, 2009, to July, 2010, had been
objectively unreasonable. On November 5, 2010, the
plaintiff filed a response to the defendants’ supplemen-
tal memoranda of law in support of their motion to set
aside the trial court’s decision and for a new trial. In
that response, the plaintiff argued that the trial court
had properly exercised its discretion to bifurcate the
accounting claim, and thus that the trial in the case had
not yet concluded and that the 120 day period had not
yet started to run. On December 15, 2010, Pascarella
filed yet another supplemental memorandum of law.
The court declared that briefing on the motion was
closed on December 15, 2010.
On April 21, 2011, one week after the expiration of
the 120 day deadline for the issuance of a decision on
the defendants’ motion to set aside the July 14, 2010
memorandum of decision and for a new trial, the defen-
dants filed motions for mistrial as to the plaintiff’s
breach of contract claim and its accounting claim on the
ground that the 120 day deadline for rendering judgment
had passed and the court had not yet rendered judgment
on those counts.11 The plaintiff objected to the mistrial
motion on the ground that the defendants’ December,
2009 consent to extend the 120 day deadline had been
an unconditional waiver of their rights under § 51-183b.
On March 23, 2012, the court issued an order rejecting
all of the defendants’ challenges to the timeliness of its
decision. In its order, the court recounted the tortuous
procedural history of this case, and found that ‘‘both
defendants by virtue of [defense counsel]’s e-mail of
December 24, 2009, had waived compliance with § 51-
183b.’’ The court explained: ‘‘Although [the] defendants
attempt to differentiate between ‘extension’ and a
‘waiver,’ claiming that they had only agreed to some
unspecified limited extension of time, there was no time
limitation, or any limitation, on the extension consented
to. Under these circumstances, the defendants have
given a blanket waiver of the statutory limit, which
grants the court an ‘unfettered’ amount of time to decide
the case. . . . Nor is there any authority for the argu-
ment made that the court’s failure in the July 14, 2010
memorandum of decision to make an award of damages
on Count One or adjudicate Count Two of the complaint
seeking the remedy of an accounting started a new 120
[day] period commencing with the last filing of the
supplemental briefs requested on those issues. There
was evidence at trial on the issue of damages, but there
was also Count Two asking for an accounting. The
parties had agreed at the commencement of trial that
Count Two was derivative of the breach of contract
claim in Count One, that is, it would only come up if
the court found for the plaintiff on Count One. No party
briefed Count Two. The court was reluctant to issue
an award of damages on July 14, 2010, because of the
possibility that there could still be an accounting, which,
if granted, would very likely lead to facts or evidence
relevant to the issue of damages. Accordingly, the court
deferred judgment on Count Two and ordered supple-
mental memoranda of law ‘whether or not further pro-
ceedings are requested on Count Two and, if so, the
scope of such proceedings contemplated by the plain-
tiff.’ The plaintiff was also asked, in view of the judg-
ments entered, to list in its memorandum each item in
its ‘Prayer for Relief’ and ‘Demand for Relief’ of the
amended complaint, indicating which items of relief it
is presently seeking. The court concluded: ‘After
reviewing those memoranda the court will determine
what further proceedings, if any, will be held prior to
a determination of damages on Count One and the dis-
position of Count Two.’ Under these circumstances, the
filing of those supplemental memoranda between July
23 and October 6, 2010, did not start a new 120 day
period. They were part of the original proceedings, cov-
ered by the waivers of December, 2009. . . . For the
foregoing reasons, [the defendants’ motions] are
denied.’’ (Citations omitted.) The trial court issued its
final memorandum of decision on April 25, 2012, deny-
ing the plaintiff’s request for an accounting and award-
ing damages to the plaintiff on its breach of contract
claim.12
The defendants claim that the trial court’s judgment
is ‘‘ineffective because it was issued 966 days after the
completion of trial, in violation of both . . . § 51-183b
and minimally acceptable standards of judicial adminis-
tration, and the defendants did not waive their right
to reasonably prompt adjudication.’’ Section 51-183b
provides: ‘‘Any judge of the Superior Court and any
judge trial referee who has the power to render judg-
ment, who has commenced the trial of any civil cause,
shall have power to continue such trial and shall render
judgment not later than one hundred and twenty days
from the completion date of the trial of such civil cause.
The parties may waive the provisions of this section.’’
The 120 day period begins to run from the date that
the parties file posttrial briefs or other material that
the court finds necessary for a well reasoned decision.
Cowles v. Cowles, 71 Conn. App. 24, 26, 799 A.2d
1119 (2002).
Generally, the first step in assessing the timeliness
of a trial court’s decision is to determine the completion
date of the trial. The defendants argue that the comple-
tion date was the date on which posttrial briefs were
filed, September 1, 2009. The plaintiff contends that the
completion date was the date on which supplemental
posttrial briefs were filed, December 15, 2010. The trial
court’s April 25, 2012 decision was issued well beyond
120 days from both of those dates. That is immaterial,
however, if, as argued by the plaintiff and determined
by the trial court, the defendants waived their statutory
rights under § 51-183b by consenting unconditionally to
the extension of the 120 day deadline in their December,
2009 e-mail to the court.
‘‘[I]n order to reduce delay and its attendant costs,
[§ 51-183b] imposes time limits on the power of a trial
judge to render judgment in a civil case.’’ Waterman v.
United Caribbean, Inc., 215 Conn. 688, 691, 577 A.2d
1047 (1990). The court explained: ‘‘[T]he defect in a late
judgment is that it implicates the trial court’s power to
continue to exercise jurisdiction over the parties before
it. . . . [A] late judgment [i]s voidable rather than . . .
void . . . and . . . the lateness of a judgment [may]
be waived by the conduct or the consent of the parties.
. . . Thus, if both parties simultaneously expressly con-
sent to a late judgment, either before the judgment is
issued, or immediately thereafter, the judgment is valid
and binding upon both parties, despite its lateness.
Express consent, however, is not required. If a late
judgment has been rendered and the parties fail to
object seasonably, consent may be implied.’’ (Citations
omitted.) Id., 692.
‘‘Waiver is the intentional relinquishment of a known
right. . . . Intention to relinquish [must] appear, but
acts and conduct inconsistent with intention [to assert
a right] are sufficient. . . . Thus, [w]aiver does not
have to be express, but may consist of acts or conduct
from which waiver may be implied. . . . In other
words, waiver may be inferred from the circumstances
if it is reasonable to do so. . . . Whether conduct con-
stitutes a waiver is a question of fact. . . . Our review
therefore is limited to whether the judgment is clearly
erroneous or contrary to law.’’ (Internal quotation
marks omitted.) Jacobson v. Zoning Board of Appeals,
137 Conn. App. 142, 150, 48 A.3d 125 (2012).
The claim of express waiver in this case arises from
the e-mail that the defendants sent to the court in
December, 2009, in response to its request for an exten-
sion of the statutory 120 day deadline by which it was
otherwise required to issue its decision. The defendants
argue that in that December, 2009 e-mail, they agreed
to ‘‘an extension of the deadline for the pending trial
court decision’’; (emphasis omitted); and that in so
doing, they ‘‘agreed to a reasonable time within which
the trial judge could render a complete decision. That
extension did not confer upon the trial court the unilat-
eral ability to extend itself, by piecemeal decision-mak-
ing, an unlimited amount of time (until April 25, 2012)
to render judgment.’’ (Emphasis omitted.) There being
no language in their e-mail that explicitly stated these
purported terms of the defendants’ consent, they ask
that we read those terms into their communication to
the court. The defendants have provided no authority
for their suggestion that we read those conditions,
which they easily could have included themselves, into
their communication to the court. Indeed, in the cases
in which there has been an agreed upon extension of
the statutory time period, the extension in each of those
cases was for a specified period of time, and the viola-
tion of that conditional extension precluded a finding
of waiver in those cases. See Cowles v. Cowles, supra,
71 Conn. App. 24; Building Supply Corp. v. Lawrence
Brunoli, Inc., 40 Conn. App. 89, 669 A.2d 620, cert.
denied, 236 Conn. 920, 674 A.2d 1326 (1996); see also
Santos v. Zoning Board of Appeals, 144 Conn. App. 62,
71 A.3d 1263 (2013).
The defendants contend that waiver of the statutory
time limit, an intentional relinquishment of a known
right, is distinguishable from an extension of that time
limit, which is defined as a ‘‘lengthening, furthering,
developing.’’ Although it cannot reasonably be disputed
that those terms carry distinct meanings, when lan-
guage consenting to an extension is not accompanied by
any language of limitation or conditions, the difference
between such an extension of a deadline and a waiver
disappears. Thus, when an extension is unaccompanied
by conditions or limitations, as in this case, it necessar-
ily operates as a waiver.
In concluding that the defendants had waived the 120
day deadline in this case, the trial court explained that
‘‘the defendants have given a blanket waiver of the
statutory limit, which grants the court an unfettered
amount of time to decide the case.’’ In so concluding,
the trial court relied upon Matthews v. Nagy Bros. Con-
struction Co., 88 Conn. App. 787, 871 A.2d 1067, cert.
denied, 274 Conn. 907, 876 A.2d 1199 (2005). In that
quiet title action, which was tried to the court, ‘‘both
parties unconditionally waived the 120 day time limit
for the rendering of a decision.’’ Id., 789. Almost fifteen
months after the completion of the trial, the plaintiff
filed a ‘‘Revocation of Waiver’’ and a motion for a mis-
trial, to which the defendant objected. Id. Neither the
motion nor the objection was ever ruled on, and the
court issued its decision almost two full years after
the completion of the trial. Id. On appeal, the plaintiff
argued that the judgment was void because she had
revoked her waiver of the 120 day deadline by filing
her motion for mistrial before the court rendered judg-
ment. Id., 790. This court disagreed with the plaintiff,
explaining that ‘‘once a waiver of the provisions of a
statute is made in a pending case, it is waived for the
purposes of all further proceedings in the same action.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 791. In response to the plaintiff’s argument that
treating the waiver of the 120 day deadline as irrevoca-
ble frustrates the well established policy underlying
that statute, which is to compel a prompt decision by the
trial court, this court concluded: ‘‘Although the plaintiff
may be correct that the unfettered amount of time that
a waiver gives to a court in which to render judgment
can be abused and, therefore, can frustrate the public
policy underlying § 51-183b, revising the statute must
be done by the legislature, not by this court.’’ Id., 792.
This court concluded: ‘‘We understand that the decision
in this case was rendered approximately two years after
the date of the trial. Although this is unfortunate, the
plaintiff waived the right to receive judgment within
the statutorily prescribed time. Additionally, she made
a blanket waiver, not a conditional one allowing merely
for an extension of a specified amount of time. Section
51-183b was created to discourage long delays in the
rendering of judgments, but the legislature also pro-
vided that the parties could waive their right to a speedy
judgment. We can find no reason to ignore the rule that
rights once waived cannot be regained by revoking the
waiver. . . . We conclude therefore that the plaintiff’s
attempted revocation of her waiver of the 120 day time
limit and her filing of a motion for a mistrial did not
void the judgment.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 792–93.
Although the defendants in this case do not contend
that they waived and then revoked their waiver of the
120 day rule, Matthews is nevertheless instructive, in
that it concludes that a waiver does permit a trial court
‘‘unfettered’’; id., 792; discretion in issuing its decision,
that there is no implied notion of reasonableness that
accompanies a waiver, requiring or even permitting a
court to examine newly asserted restrictions on the
waiver. That is simply not provided for in the statute.
Here, then, because the defendants consented to an
extension of the 120 day time period within which the
court was required to issue its decision, and did not
set forth any conditions or limitations on the agreed
upon extension, the court’s determination that they
waived the 120 day rule was not clearly erroneous.13
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although not all of the facts set forth by the trial court are relevant to
our determination of whether it properly determined that the formation
agreement clearly and unambiguously did not provide for the plaintiff’s
assignment of his rights, we repeat some of them here to provide some
context for the transactions at issue.
2
The court also explained: ‘‘Further, the circumstances surrounding the
[f]ormation [a]greement support the conclusion that the Silver Participation
was not assigned thereunder. The [p]articipation [a]greement states that
the Silver Participation may not be assigned without Pascarella’s consent,
which admittedly was not obtained. While [the] defendants claim that this
language does not prevent the assignment under Connecticut law, the provi-
sion certainly provides support for the contention that it was not the parties’
intent to commit an illegal act. Contrary to [the] defendants’ contention,
there is no evidence that Silver’s payout was in any way linked to the
performance of brokerage services for SPD at the Pemberwick property.
Indeed, the testimony was that such services were limited, uncompensated,
and in the nature of an effort to protect Silver’s investment. [The] defendants
argue that Gillon’s receipt of a 70 percent interest for his investment of
$250,000 supports the contention that the [p]articipation [a]greement was
part of Silver’s contribution to the LLC; however, on balance, it leads to the
opposite conclusion. The income from the Silver Participation owing to
Silver was found to be worth approximately $2.6 million, or more than ten
times the amount of Gillon’s contribution. Although Mr. Silver had not yet
received any revenue from the Silver Participation as of the execution of
the [f]ormation [a]greement, he was undoubtedly aware of the significant
value of the Pemberwick property, as its developer and substantial investor.’’
3
The defendants claim that the formation agreement was ambiguous and
thus that the trial court should have permitted them to submit evidence of
the meaning of the language of the agreement. Because this claim rests
upon their contention that the formation agreement was ambiguous, which
we reject, we do not reach this additional claim.
4
The record does not reflect the date on which the court officer contacted
the parties to request the extension of the 120 day period.
5
We note that the trial court’s July 14, 2010 memorandum of decision
was fifty-three pages long. The defendants have not asserted any claims of
error as to the substance of the trial court’s July 14, 2010 decision.
6
The defendants actually filed separate motions to set aside the decision
and for a new trial, but counsel for Riversedge adopted and joined the brief
filed by Pascarella. For clarity, we refer to the two motions as one.
7
Specifically, the court noted that there were eleven days of evidence in
the trial of this matter, and that it had reviewed the transcripts of the entire
trial. The court further explained: ‘‘This was not an easy case to decide.
This case was very, very hotly contested. It was a litigation between former
friends, former partners and at least in some matters, former relationship
of attorney and client.
‘‘It was documented by unique documentation. And one of the key docu-
ments was a scribbled handwritten note that terminated—purported to
terminate a one million dollar investment by the plaintiff—Mr. Silver sitting
back there—with the words—I’m paraphrasing, it may not be exactly; but
if Bob doesn’t pay, Bob is out of the deal.
‘‘With all this sophistication about partnership law and obstruction of
contracts and everything else . . . that was what I had to work with. There
was no precedent that I could find for many of these things.
‘‘There was an issue of contract construction that was very challenging.
This was not something that I was going to rush at. . . .
‘‘The lapse of time did not mean that I was relying on memory for all of
this evidence. I read the entire trial. Often I went back and read it multiple
times and underlined the testimony.
‘‘I read the briefs over and over. They’re dog eared, the copies that I
worked with. So, the lapse of time did not prejudice anyone in terms of the
quality of review that was given to the evidence.
‘‘I was not going to release an opinion until I was satisfied with it, until
I was comfortable and confident that I had it right.’’
8
This matter previously had been on the jury trial list and, in fact, voir
dire had previously commenced and proceeded for a number of days, until
the parties agreed to waive the jury trial and try the case to the court. Both
the trial court and counsel for the plaintiff recalled that it was during those
proceedings that the deferral of the accounting claim was discussed. Because
Pascarella had hired new counsel since that time and his new counsel had
not been present for those proceedings, those were the transcripts counsel
sought to review.
9
Again, Riversedge adopted the arguments set forth in Pascarella’s supple-
mental memorandum of law. Riversedge set forth two additional arguments
in their memorandum of law, neither of which pertained directly to the
reasonableness of the length it took the court to issue its July 14, 2010
decision. The additional arguments set forth by Riversedge go to the merits
of whether the plaintiff is entitled to an accounting and the need for the
appointment of a receiver. Both of those arguments more properly should
have been asserted on appeal from the judgment of the trial court.
10
Again, this seems to be a challenge to the merits of the trial court’s
decision rather than a challenge to the reasonableness of the amount of
time that it took the court to issue its decision.
11
Although the defendants filed separate motions for mistrial, Riversedge
adopted the arguments set forth by Pascarella in his motion.
12
The trial court’s April 25, 2012 memorandum of decision was twenty-
four pages long. The defendants have not asserted any claims of error as
to the substance of the trial court’s April 25, 2012 decision.
13
The defendants also ask this court to exercise its supervisory powers
over the administration of justice to ‘‘require a new trial as a result of the
inordinate and unjustifiable delay in the trial court.’’ In light of our conclusion
that the defendants waived any restrictions upon the trial court’s time within
which to render a decision in this case, we decline to exercise our supervisory
powers to declare that the trial court’s decision was untimely.