Paniccia v. Success Village Apartments, Inc. ( 2022 )

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DAVID PANICCIA v. SUCCESS VILLAGE
APARTMENTS, INC., ET AL.
(AC 44322)
Prescott, Suarez and Bishop, Js.
Syllabus
The plaintiff, P, sought to recover damages from the defendant, S Co., for
S Co.’s breach of the parties’ employment contract in connection with
S Co.’s termination of P’s employment. P was hired by S Co. in 2012,
pursuant to an employment contract for a term of two years, and his
contract was renewed in 2013 for an additional term of two years. In
October, 2015, S Co. approved and executed a new employment contract
with P for an additional term of two years, to begin on January 25, 2016.
Although the 2015 contract was dated October 12, 2015, the board of S
Co. approved the contract on October 13, 2015, at a special meeting. In
December, 2015, S Co. notified P that his employment would be termi-
nated as of January 25, 2016, the date his 2015 contract was to begin.
Following a bench trial, the parties executed a joint stipulation providing
for an extension of the statutory (§ 51-183b) 120 day deadline for the
trial court to render a decision. The trial court issued its memorandum
of decision past the agreed upon extended deadline, rendering judgment
for S Co. P moved to open and vacate the judgment and for a new trial,
which the trial court granted. A new bench trial was held, and the trial
court rendered judgment for P. On S Co.’s appeal to this court, held:
1. The trial court properly granted P’s motion to open and vacate the judg-
ment rendered in the first trial as that court’s finding that P did not waive
his right to object to the untimely decision was not clearly erroneous:
P was under no duty to speak or to protest after the court failed to
issue a decision by the agreed upon deadline, prejudgment silence alone
was not sufficient to support a finding of waiver under § 51-183b, as
there must have been some other act or conduct that either delayed
the start of the deadline, created a duty to protest in the silent party or
served as an affirmative act of waiver or consent, and S Co. was unable
to identify any such act or conduct by P that supported a finding of
waiver; moreover, S Co.’s attempt to draw a distinction between a party’s
silence after the statutory 120 day deadline had passed and after an
agreed upon extension of that deadline had passed was unpersuasive,
as the same considerations applied in either situation.
2. S Co. could not prevail on its claim that the trial court violated the parol
evidence rule by relying on the testimony of witnesses rather than
the written employment contract in finding that the 2015 contract was
executed on October 13, 2015, and was valid and enforceable; because
a party may use extrinsic evidence to prove that a purported contract
never came into existence, it followed that a party may do so to prove
that a contract, in fact, existed, and, because the date on which the
contract was approved and executed was not a negotiated term of the
contract, the evidence admitted was not used to vary or contradict any
terms of the contract.
3. S Co. could not prevail on its claim that the trial court improperly awarded
prejudgment interest on P’s award for back pay under the statutory
(§ 37-3a) provision providing for an award of interest for the wrongful
detention of money: S Co. breached the contract for the payment of
wages by preventing P from performing fully under the contract, the
damages awarded here were ascertainable at the time of S Co.’s breach
pursuant to the terms of the 2015 contract, and, therefore, contrary to
S Co.’s claim, the damages sought were not akin to damages in a personal
injury action; moreover, although S Co. emphasized that P was not
seeking liquidated damages under the contract and therefore § 37-3a
did not apply, much like liquidated damages, the award for unpaid wages
was determined by the terms of the contract governing the amount of
P’s salary, and the court awarded interest on P’s weekly salary as each
payment would have become due under the terms of the 2015 contract
if P had been allowed to perform under it.
Argued May 10—officially released October 11, 2022
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Fairfield, where the
matter was tried to the court, Arnold, J.; judgment for
the defendants; thereafter, the court, Arnold, J., granted
the plaintiff’s motion to open and vacate the judgment;
subsequently, the matter was withdrawn as to the defen-
dant Tyreke Bird et al.; thereafter, the matter was tried
to the court, Jacobs, J.; judgment for the plaintiff; subse-
quently, the court, Jacobs, J., denied in part the named
defendant’s motion for reargument, and the named
defendant appealed to this court; thereafter, the court,
Jacobs, J., issued a memorandum of decision on the
named defendant’s motion for reargument, affirming its
award of prejudgment interest, and the named defen-
dant filed an amended appeal. Affirmed.
Megan E. Bryson, for the appellant (named defen-
dant).
Richard E. Hayber, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In this breach of contract action, the
named defendant, Success Village Apartments, Inc.,1
appeals from the judgment of the trial court, rendered
after a second court trial, in favor of the plaintiff, David
Paniccia, the defendant’s former employee. In 2018,
following the first court trial of this matter, the court,
Arnold, J., rendered judgment for the defendant on the
plaintiff’s claims for breach of an employment contract,
violations of General Statutes §§ 31-71b and 31-72,2 and
breach of the implied duty of good faith and fair dealing.
Thereafter, however, Judge Arnold granted the plain-
tiff’s motion to open and vacate the judgment because
his judgment was rendered untimely pursuant to Gen-
eral Statutes § 51-183b, which requires that a trial court
render a decision within 120 days after the completion
of a civil trial.3 After conducting a second court trial in
2019, the court, Jacobs, J., rendered judgment for the
plaintiff and awarded him $172,969.90 in damages,
which included $11,672.46 in prejudgment interest on
back wages.
On appeal, the defendant claims that Judge Arnold
improperly granted the plaintiff’s motion to open and
vacate the 2018 judgment for the defendant. In the alter-
native, the defendant claims that Judge Jacobs improp-
erly (1) relied on parol evidence rather than the employ-
ment contract in finding that the contract was valid and
enforceable and (2) awarded the plaintiff prejudgment
interest pursuant to General Statutes § 37-3a. We affirm
the judgment of the trial court.
The following facts, as found by Judge Jacobs or that
are otherwise undisputed in the record, and procedural
history are relevant to the defendant’s claims. The
defendant is a nonprofit residential community associa-
tion registered with the state of Connecticut. In January,
2012, pursuant to a written employment contract, the
defendant, through its board of directors (board), hired
the plaintiff as its property manager for a term of two
years, beginning on January 25, 2012 (2012 contract).
Under the 2012 contract, the plaintiff earned a yearly
salary of $85,000 and received health and dental insur-
ance. The contract included a termination provision,
which provided: ‘‘Employee shall receive sixty ([6]0)
days advance written notice of the Employer’s decision
to terminate. Prior to termination, Employee shall
receive a written complaint detailing the issue(s) need-
ing attention or correction and will be given a ninety
(90) day period to cure, resolve and/or correct such
listed issue(s).’’ In October, 2013, the board executed
an option to renew the 2012 contract for an additional
term of two years, beginning on January 25, 2014 (2013
renewal).
On October 13, 2015, the board approved and exe-
cuted a new employment contract with the plaintiff,
pursuant to which the plaintiff was hired as the defen-
dant’s community association manager for a term of two
years, beginning on January 25, 2016 (2015 contract).
Although the contract was dated October 12, 2015, the
court found, on the basis of testimony from members
of the board, that the board approved the contract on
October 13, 2015, at a special meeting. The 2015 contract
provided that the plaintiff would earn a yearly salary
of $90,000 with various benefits, including health, den-
tal, and disability insurance.
On December 30, 2015, the defendant notified the
plaintiff that his employment would be terminated as
of January 25, 2016. In May, 2016, the plaintiff com-
menced the underlying action against the defendant.4
In the operative three count amended complaint dated
July 13, 2017, the plaintiff alleged that the defendant,
by preventing him from performing under the 2015 con-
tract and by failing to pay him pursuant to the terms
of the 2015 contract, (1) breached the 2015 contract,
(2) violated §§ 31-71b and 31-72, which require that an
employer pay an employee’s wages weekly and provide
for penalty damages in a civil action brought to recover
such wages, and (3) breached the implied covenant of
good faith and fair dealing. In his prayer for relief, the
plaintiff sought ‘‘back pay, front pay, and the value of
benefits,’’ interest, and costs, as well as penalty damages
and attorney’s fees pursuant to § 31-72.
The defendant denied the material allegations in the
complaint and alleged the following seven special
defenses: (1) The plaintiff obtained the 2012 contract
by fraud; (2) the plaintiff’s employment contracts are
invalid and/or unenforceable pursuant to statute; (3)
the 2013 renewal is invalid and unenforceable because
the 2012 contract was obtained by fraud; (4) the board’s
approval of the 2015 contract was invalid; (5) the plain-
tiff’s termination was as of right under the employment
contracts; (6) the plaintiff was paid for his services
through the end of the 2013 renewal, inclusive of bene-
fits; and (7) the plaintiff failed to mitigate his damages.5
As previously stated, the case initially was tried to
Judge Arnold. The trial began on July 25, 2017, and was
completed on September 25, 2017, when Judge Arnold
received the parties’ posttrial briefs.6 On January 16,
2018, the parties filed a joint stipulation providing that
they ‘‘agree that Judge Arnold will have until March
14, 2018, to issue a ruling.’’ Judge Arnold issued his
memorandum of decision on April 16, 2018, rendering
judgment for the defendant on all counts of the com-
plaint. Judge Arnold found that the board approved and
signed the 2015 contract during an executive session
on October 12, 2015, in violation of General Statutes
§ 47-250 (b) (1), which provides in relevant part: ‘‘No
final vote or action may be taken during an executive
session. . . .’’ Accordingly, Judge Arnold held that the
2015 contract was void and unenforceable.
On April 26, 2018, the plaintiff moved to open and
vacate the judgment and for a new trial, claiming that
the court’s decision was untimely under § 51-183b. On
October 3, 2018, Judge Arnold granted the motion over
the defendant’s objection, and Judge Jacobs held a new
trial over the course of three days in December, 2019.
The parties submitted posttrial briefs in January,
2020, and Judge Jacobs issued a memorandum of deci-
sion on June 16, 2020, rendering judgment for the plain-
tiff on all counts of his complaint. Although the court
found that the defendant had proven its sixth special
defense regarding payment of the plaintiff’s full salary
and benefits under the 2013 renewal, it rejected the
defendant’s remaining special defenses. Contrary to
Judge Arnold’s conclusion regarding the 2015 contract,
the court found that the 2015 contract was valid and
enforceable. The court found that the defendant
breached the 2015 contract by preventing the plaintiff
from performing under the contract and by failing to
pay him pursuant to the contract. The court also found
that the defendant’s failure to pay the plaintiff his salary
violated § 31-71b and that the plaintiff was entitled to
penalty damages on the unpaid wages pursuant to § 31-
72 because the defendant neither pleaded nor presented
evidence in support of the good faith exception under
the statute.7 See General Statutes § 31-72 (2) (plaintiff
not entitled to twice full amount of unpaid wages ‘‘if
the employer establishes that the employer had a good
faith belief that the underpayment of wages was in
compliance with law’’). The court awarded the plaintiff
$172,969.90 in damages, which included: $69,176.85 for
back wages; $11,672.46 in interest on back wages at a
rate of 5 percent;8 $69,176.85 as penalty damages under
§ 31-72; and $22,981.63 for the value of lost health insur-
ance.
On July 6, 2020, the defendant filed a motion to rear-
gue and a supporting memorandum of law, claiming that
the court improperly: (1) relied on witness testimony
to alter the execution date of the 2015 contract in viola-
tion of the parol evidence rule; (2) determined that the
plaintiff’s failure to obtain a certificate for ‘‘association
management services’’ while providing ‘‘community
association manager’’ services, as required under Gen-
eral Statutes (Rev. to 2011) § 20-457,9 did not render the
2012 contract and 2013 renewal unenforceable under
General Statutes (Rev. to 2011) § 20-458;10 and (3)
awarded prejudgment interest ‘‘without any basis in
law.’’ The plaintiff filed a memorandum of law in opposi-
tion to the defendant’s motion on July 9, 2020, arguing
that the issues raised by the defendant were not proper
for reargument. On July 17, 2020, the defendant filed a
reply memorandum, and Judge Jacobs heard oral argu-
ment on the motion on September 8, 2020.
On September 24, 2020, the court issued a memoran-
dum of decision denying the motion as to the defen-
dant’s first two claims but granting reargument as to the
defendant’s claim that the court improperly awarded
prejudgment interest without statutory citation. Judge
Jacobs noted that ‘‘[r]eargument shall be scheduled by
the court clerk.’’ On October 13, 2020, the defendant
filed the present appeal.
On November 27, 2020, the defendant filed a motion
for articulation, requesting that Judge Jacobs articulate
her factual findings and legal conclusions regarding the
applicability of the parol evidence rule with respect to
the execution of the 2015 contract. Judge Jacobs denied
the motion for articulation on January 19, 2021, and the
defendant filed a motion for review of that ruling. On
March 17, 2021, this court granted review but denied
the relief requested.
On December 21, 2021, this court marked over the
scheduled argument in the appeal and ordered, sua
sponte, the parties to file memoranda on or before Janu-
ary 13, 2022, limited to two issues: ‘‘(1) [Whether] the
rationale of Gardner v. Falvey, 45 Conn. App. 699, [697
A.2d 711] (1997), requires dismissal of this appeal for
lack of a final judgment because the trial court granted
reargument, but the motion to reargue had not been
decided at the time the appeal was filed [and] (2) [i]f
Gardner controls, [whether] this court [should] con-
sider the case en banc and overrule Gardner.’’
On February 17, 2022, after the parties filed their
memoranda, this court ordered, sua sponte, Judge
Jacobs to ‘‘fully resolve the merits of the defendant’s
July 6, 2020 motion to reargue in light of the court’s
September 25, 2020 order stating: ‘As to the defendant’s
third claim of error, i.e., the court’s awarding of interest
without statutory citation, the defendant’s request for
reargument and for reconsideration is granted.’ ’’
After hearing reargument on the award of interest
on February 28, 2022, Judge Jacobs issued a memoran-
dum of decision resolving the defendant’s motion to
reargue on March 2, 2022. The court declined to alter
its award of interest, concluding that the defendant’s
failure to pay the plaintiff his wages as required under
the 2015 contract constituted the wrongful detention
of money after it became payable under § 37-3a. On
March 15, 2022, the defendant amended this appeal
to challenge the court’s ruling affirming its award of
prejudgment interest and sought permission to file a
supplemental brief and appendix addressing that issue.
On March 24, 2022, this court ordered that the parties
may file supplemental briefs limited to the issue raised
in the defendant’s amended appeal.11 Additional facts
and procedural history will be set forth as necessary.
I
The defendant first claims that the court improperly
granted the plaintiff’s motion to open and vacate judg-
ment. The defendant argues that the court’s finding that
the plaintiff did not waive the right to object to a late
decision under § 51-183b was clearly erroneous. The
plaintiff responds that he never waived his right to
receive a ruling by March 14, 2018, or to object to an
untimely decision. We agree with the plaintiff.
We begin with the applicable standard of review.
Ordinarily, we review a trial court’s ruling on a motion
to open a judgment for an abuse of discretion. See
Acadia Ins. Co. v. O’Reilly, 138 Conn. App. 413, 417,
53 A.3d 1026 (2012), cert. denied, 308 Conn. 904, 61
A.3d 1097 (2013). ‘‘In determining whether the trial
court abused its discretion, this court must make every
reasonable presumption in favor of its action. . . . The
manner in which [this] discretion is exercised will not
be disturbed so long as the court could reasonably
conclude as it did.’’ (Internal quotation marks omitted.)
Id. In the present case, however, the defendant claims
that the court improperly failed to find that the plaintiff
waived his right to object to the late judgment. ‘‘Whether
conduct constitutes a waiver is a question of fact. . . .
Our review therefore is limited to whether the judgment
is clearly erroneous or contrary to law.’’ (Internal quota-
tion marks omitted.) Foote v. Commissioner of Correc-
tion, 125 Conn. App. 296, 302, 8 A.3d 524 (2010). ‘‘A
finding is clearly erroneous when although there is evi-
dence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Franklin Credit Management Corp. v.
Nicholas, 73 Conn. App. 830, 836, 812 A.2d 51 (2002),
cert. denied, 262 Conn. 937, 815 A.2d 136 (2003).
The following legal principles regarding § 51-183b are
relevant to the defendant’s claim. ‘‘[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). A late judg-
ment in violation of § 51-183b ‘‘implicates the trial
court’s power to continue to exercise jurisdiction over
the parties before it. . . . [Our Supreme Court has]
characterized a late judgment as voidable rather than
as void . . . and [has] permitted the lateness of a judg-
ment to be waived by the conduct or the consent of
the parties. . . . Thus, if both parties simultaneously
expressly consent to a late judgment, either before the
judgment is issued, or immediately thereafter, the judg-
ment 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.
Accordingly, ‘‘an unwarranted delay in the issuance
of a judgment does not automatically deprive a court
of personal jurisdiction. Even after the expiration of
the time period within which a judge has the power to
render a valid, binding judgment, a court continues to
have jurisdiction over the parties until and unless they
object. It is for this reason that a late judgment is merely
voidable, and not void. It is for this reason as well that
the issues arising under § 51-183b have focused on the
question of waiver.’’ Id., 692–93.
This court has distilled these principles into the fol-
lowing syllogism: ‘‘(1) a late judgment is voidable, not
void, (2) a court maintains personal jurisdiction over
the parties until and unless they object, (3) but a late
judgment may be waived by conduct or consent, (4)
therefore, absent waiver, a voidable judgment becomes
void upon objection.’’ (Emphasis in original.) Foote v.
Commissioner of Correction, supra, 125 Conn. App.
301.
In the present case, the 120 day deadline under § 51-
183b, as extended by the parties’ joint stipulation,
required that Judge Arnold render a decision by March
14, 2018. When Judge Arnold issued his decision on
April 16, 2018, the plaintiff objected to the court’s
untimely decision by filing a motion to open and vacate
the judgment ten days later on April 26, 2018. Accord-
ingly, the dispositive issue is whether the plaintiff
waived his right to object to the untimely decision by
entering into the joint stipulation and then failing to
object to a late decision between March 14 and April
16, 2018.
‘‘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. . . .
‘‘[A] waiver is not ordinarily to be inferred from the
mere inaction of a party prior to the time the judge
files with the clerk his memorandum of decision. . . .
Implications from silence or inaction . . . import some
duty or occasion to speak or act, and in order to imply
consent that rendition of judgment . . . might be
deferred beyond the limit of time imposed by statute,
there must be found to exist some obligation on the
part of the [parties] or their counsel either seasonably
to admonish the trial judge that the statute must be
complied with or, after the [time limit imposed by stat-
ute] and before judgment, to interpose objection to
its entry thereafter. We find no justification for so far
extending the duty of a party or his counsel. The imprac-
ticability, if not the impropriety, of the first course is
obvious; as to the second, it seems that the most that
can reasonably be required is objection seasonably
made after the filing of the decision. . . . Therefore,
[u]nless some situation develops which in reason
requires the party to protest and he does not protest,
or unless he consents to the delay either expressly or
impliedly, as by agreeing to an additional hearing or by
a tardy filing of his brief, no waiver will be spelled
out. . . .
‘‘[In cases in which waiver has been found], waiver
was not based on silence per se but on some other act
or conduct that either delayed the start of the 120 day
deadline, created a duty to protest in the silent party
or served as an affirmative act of waiver or consent.
See, e.g., O.J. Mann Electric Services, Inc. v. Village
at Kensington Place Ltd. Partnership, 99 Conn. App.
367, 374–75, 913 A.2d 1107 (2007) (plaintiff failed to
object to court issued letter giving alleged erroneous
120 day deadline and plaintiff thereafter submitted brief
beyond 120 day deadline he had claimed); Rowe v.
Goulet, 89 Conn. App. 836, 845–46, 875 A.2d 564 (2005)
(after 120 days but prior to rendition of late judgment
plaintiff participated in hearing on damages and failed
to object seasonably after late judgment rendered);
Franklin Credit Management Corp. v. Nicholas, [supra,
73 Conn. App. 836] (plaintiff failed to object to unsolic-
ited trial brief submitted by defendant) . . . ; Dichello
v. Holgrath Corp., [49 Conn. App. 339, 351–52, 715 A.2d
765 (1998)] (after untimely judgment rendered, plaintiff
filed motion to open judgment to submit additional
evidence and thereafter failed to file seasonable objec-
tion to untimely decision); Ippolito v. Ippolito, 28 Conn.
App. 745, 749, 612 A.2d 131 (start of 120 day deadline
delayed by lack of objection to defendant’s unsolicited
brief), cert. denied, 224 Conn. 905, 615 A.2d 1047(1992). . . .
‘‘[T]hese observations are consistent with the clear
intent of [§ 51-183b, which is] to place the onus on
judges to decide cases in a timely fashion.’’ (Citations
omitted; emphasis in original; footnote omitted; internal
quotation marks omitted.) Foote v. Commissioner of
Correction, supra, 125 Conn. App. 302–304.
In Foote, neither party objected before the habeas
court issued its decision denying the habeas petition
200 days after the completion of the trial. Id., 299. Nine
days after the judgment had been rendered, however,
the petitioner filed a motion to set aside the judgment
pursuant to § 51-183b. Id. The habeas court denied the
motion, and the petitioner appealed. Id. On appeal, this
court reversed the judgment of the habeas court, con-
cluding that the court’s implicit finding of waiver was
clearly erroneous. Id., 305. This court explained: ‘‘Our
careful review of the record reveals that the only evi-
dence on which the habeas court made its implicit find-
ing of waiver was the petitioner’s silence. Prior to ren-
dition of judgment, however, the petitioner was under
no duty to object. After judgment was rendered, the
petitioner was under a duty to protest, and he did so
by seasonably filing his motion to set aside the judgment
nine days later. Under such circumstances, we cannot
conclude that the petitioner’s silence was the inten-
tional relinquishment or abandonment of a known right
or privilege, which is the cornerstone of a claim of
waiver.’’ (Emphasis added; internal quotation marks
omitted.) Id., 306–307.
In the present case, Judge Arnold relied on this
court’s decision in Foote in finding that the plaintiff did
not waive his right to object to the late decision. The
court determined ‘‘that the mere silence of the plaintiff
upon the expiration of the joint stipulated extension is
not fatal to the plaintiff. The plaintiff filed his motion
to open and vacate the judgment and motion for new
trial ten days after the court filed its memorandum of
decision on April 16, 2018, due to the trial court’s health
issues. The memorandum of decision was [filed] beyond
the parties’ agreed upon extension date of March 14,
2018.’’
On appeal, the defendant argues that the plaintiff
impliedly waived the right to object to the late decision
by remaining silent during the thirty-one days after the
expiration of the agreed upon deadline but before the
judgment was rendered. The defendant contends that
Foote is distinguishable from the present case because
the parties in Foote did not expressly waive the provi-
sions of § 51-183b. According to the defendant, where
the parties initially have agreed to waive § 51-183b’s
120 day deadline, a party has a duty to protest prior to
the rendition of judgment after the agreed upon exten-
sion date. The defendant suggests that ‘‘several cases
have held the provisions of § 51-183b waived [when the]
parties have provided waivers of the statute, even if
limited in duration, and thereafter failed to challenge
a court’s failure to timely issue a decision . . . prior to
the issuance of a memorandum of decision.’’ (Emphasis
omitted.) The defendant identifies three such cases,
two of which are Superior Court cases decided before
this court issued its opinion in Foote.
First, the defendant directs our attention to Franklin
Credit Management Corp. v. Nicholas, supra, 73 Conn.
App. 830. In that case, the trial was completed on Febru-
ary 20, 2001, when the parties filed simultaneous post-
trial briefs. Id., 833. On April 11, 2001, the defendant
filed an unsolicited supplemental brief, and the plaintiff
did not object to the supplemental brief. Id. On July 12,
2001, the trial court rendered judgment for the defen-
dant, and the plaintiff promptly filed a motion to set
aside the judgment and for a mistrial on the ground
that the court’s decision was untimely under § 51-183.
Id. The court denied the motion and later ‘‘articulated
that it had utilized the unsolicited brief, at least, in
determining when its decision was due.’’ Id., 834.
On appeal, this court affirmed the judgment,
explaining: ‘‘The facts of this case are controlled by
Ippolito v. Ippolito, supra, 28 Conn. App. 748–50. Here,
as in Ippolito, one of the parties submitted an unsolic-
ited brief subsequent to the time the court established
for the submission of briefs after the close of evidence.
In both cases, the opposing party did not object to the
unsolicited brief or seek to strike the brief. Neither of
the courts returned the briefs or asked the parties to
agree to extend the time in which the decisions were
to be rendered. In Ippolito, the failure of the opposing
party to file an objection to the unsolicited brief consti-
tuted implied consent to extend the period of 120 days
from the completion of evidence. . . .
‘‘Here, we note that [the plaintiff] not only failed to
object to the filing of the unsolicited brief, but also
failed to object when the court had not rendered a
decision 120 days after the simultaneous briefs were
due, i.e., February 20, 2001. Rather, it appears that [the
plaintiff] waited for the court’s decision. When it
received an unfavorable decision, [the plaintiff] filed a
motion to set aside the judgment. By failing to raise a
seasonable objection to the unsolicited brief or to the
passage of 120 days from February 20, 2001, prior to
the time the court rendered its judgment, [the plaintiff]
by implication waived the time provision of § 51-183b.’’
(Citation omitted; footnote omitted.) Franklin Credit
Management Corp. v. Nicholas, supra, 73 Conn. App.
836–37.
Thus, in Franklin Credit Management Corp., the
finding of waiver was not based on the plaintiff’s failure
to object before the late judgment but, rather, on its
failure to object to the filing of a supplemental brief,
which delayed the start of the 120 day deadline. In
the present case, aside from the plaintiff’s prejudgment
silence for thirty-one days after the agreed upon dead-
line had passed but before judgment was rendered, the
defendant is unable to identify any act or conduct by
the plaintiff that supports a finding of waiver. See Foote
v. Commissioner of Correction, supra, 125 Conn. App.
303 (waiver is not based on silence alone ‘‘but on some
other act or conduct that either delayed the start of the
120 day deadline, created a duty to protest in the silent
party or served as an affirmative act of waiver or con-
sent’’).
The defendant also relies on D’Amico v. Board of
Alderman, Superior Court, judicial district of Water-
bury, Docket No. CV-XX-XXXXXXX (October 16, 2003) (35
Conn. L. Rptr. 627), and McGlinchey v. Stonington,
Superior Court, judicial district of New London, Docket
No. CV-XX-XXXXXXX-S (June 19, 2006) (41 Conn. L. Rptr.
691). In D’Amico, the parties agreed to an extension of
the 120 day deadline, providing an additional ninety
days from March 20, 2002, for the court to render a
decision. D’Amico v. Board of Alderman, supra, 627
n.1. The court, however, did not issue its decision until
July 17, 2003, 394 days after the ninety day extension
had passed. Id., 627. On August 21, 2003, the defendant
moved to open and set aside the judgment as untimely
under § 51-183b. Id. The court denied the motion to set
aside, concluding that ‘‘[a] ‘seasonable objection’ under
the circumstances of this case would have been one
made after the additional [ninety] days had passed with-
out a decision, and before the court rendered its deci-
sion. An objection raised, for the first time, by the party
against whom the judgment entered, after that party
has the benefit of knowing the decision, is unseason-
able, and the court is not required to vacate or set aside
the judgment as untimely under [§ 51-183b].’’ (Emphasis
in original.) Id.
In McGlinchey v. Stonington, supra, 41 Conn. L. Rptr.
691, the plaintiffs initially provided a ‘‘blanket waiver’’
of the 120 day time limit, but one of the defendants
consented to only a 30 day extension until December
26, 2005. On December 21, 2005, the court requested
an additional extension of time until February 1, 2006,
to issue its decision, and the plaintiffs again agreed to
waive the 120 day deadline. Id. On March 30, 2006, the
court notified the parties that it was ready to issue its
decision and requested a waiver of the 120 day deadline
until April 10, 2006. Id. The defendants consented to
the request, but the plaintiffs did not respond. Id. On
April 13, 2006, during a conference call between the
court and the parties, the plaintiffs’ counsel informed
the court that he was not able to agree to any further
waiver of the deadline. Id. On April 17, 2006, one of the
defendants sent a letter to the court discussing the
law regarding waivers and urging the court to issue its
decision. Id. The court issued its decision on April 19,
2006, and the plaintiffs sent a letter to the court on
April 20, 2006, responding to the defendant’s April 17
letter and objecting to the issuance of a decision. Id.On April 28, 2006, the plaintiffs moved to set aside the
judgment as untimely under § 51-183b. Id.
The court denied the motion. Id., 693. The court first
held that the plaintiffs had ‘‘provided the court with an
unconditional waiver [of the 120 day deadline]. . . .
Therefore, the plaintiffs’ initial expressed waiver stands
and cannot now be revoked.’’ (Citation omitted; internal
quotation marks omitted.) Id., 692. Having determined
that the plaintiffs had expressly waived the provisions
of § 51-183b, the court further ‘‘determined that the
plaintiffs consented impliedly to the waiver of the 120
day time limit because the plaintiffs did not object to
the passage of the February 1, 2006 time limit.’’ Id. The
court relied on Franklin Credit Management Corp. v.
Nicholas, supra, 73 Conn. App. 836–37, and D’Amico v.
Board of Alderman, supra, 35 Conn. L. Rptr. 627–28,
in reasoning that ‘‘the plaintiffs failed to take timely
and appropriate advantage of the two and a half months
from February 1, 2006, to April 20, 2006. The plaintiffs’
inaction is deemed an implied waiver of their rights to
the provisions of § 51-183b.’’ McGlinchey v. Stonington,
supra, 41 Conn. L. Rptr. 693.
Notably, both D’Amico and McGlinchey, neither of
which is binding on this court, were decided before
this court issued its decision in Foote v. Commissioner
of Correction, supra, 125 Conn. App. 296, in which this
court rejected the reasoning employed by the trial
courts in each case. In Foote, this court noted that ‘‘it
has been stated that consent to a late judgment may
be implied . . . from the silence of the parties until
the judgment has been rendered . . . . On several
occasions, however, our Supreme Court has clarified
that silence may be implied consent only when the
silent party is faced with a duty to speak or to protest.’’
(Citations omitted; emphasis in original.) Id., 303 n.7.
Here, the defendant claims that the plaintiff had a
duty to speak or to protest during the thirty-one days
after the parties’ deadline had passed but before judg-
ment was rendered and, therefore, the plaintiff’s pre-
judgment silence alone constituted implied consent to
a late judgment. The defendant’s attempt to draw a
distinction between a party’s silence after the statutory
120 day deadline has passed and a party’s silence after
an agreed upon extension of the deadline has passed is
unpersuasive. The same considerations apply in either
situation, and we reiterate that prejudgment silence
alone is not sufficient to support a finding of waiver
under § 51-183b. There must be ‘‘some other act or
conduct that either delayed the start of the 120 day
deadline, created a duty to protest in the silent party
or served as an affirmative act of waiver or consent.’’
Id., 303.
In sum, because the plaintiff in the present case was
under no duty to speak or protest after the court failed
to issue a decision by the agreed upon deadline, the
court’s finding that the plaintiff did not waive his right
to object to the untimely decision was not clearly erro-
neous. Accordingly, the court properly granted the
motion to open and vacate the judgment.
II
The defendant next claims that the court, Jacobs,
J., violated the parol evidence rule by relying on the
testimony of witnesses rather than the written contract
in finding that the 2015 contract was executed on Octo-
ber 13, 2015. The defendant argues that the 2015 con-
tract is fully integrated and, therefore, that the court
improperly relied on parol evidence to contradict its
terms. The plaintiff responds that the date on which
the 2015 contract was executed is not a term of the
contract subject to the parol evidence rule. We agree
with the plaintiff.
We begin with the applicable standard of review.
‘‘Because the parol evidence rule is not an exclusionary
rule of evidence . . . but a rule of substantive contract
law . . . the [defendant’s] claim involves a question
of law to which we afford plenary review.’’ (Internal
quotation marks omitted.) Medical Device Solutions,
LLC v. Aferzon, 207 Conn. App. 707, 728, 264 A.3d 130,
cert. denied, 340 Conn. 911, 264 A.3d 94 (2021).
The following legal principles govern our resolution
of the defendant’s claim. ‘‘[I]t is well established that
the parol evidence rule is . . . a substantive rule of
contract law that bars the use of extrinsic evidence to
vary the terms of an otherwise plain and unambiguous
contract. . . . The rule does not prohibit the use of
extrinsic evidence for other purposes, however, such
as to prove mistake, fraud or misrepresentation in the
inducement of the contract. . . .
‘‘The rule also does not prevent a party from using
extrinsic evidence to establish the existence of a condi-
tion precedent to the formation of a contract. . . . As
[our Supreme Court] explained long ago, [t]he rule . . .
is, that [one] may show that a writing purporting to be
a contract never came into existence as a contract, or
has ceased to be a contract, and [this] may [be] show[n]
. . . by evidence outside of the writing. This . . . rule
is not an exception to the [parol evidence rule or] an
infringement of it. . . . The practical distinction
between the two rules . . . is that evidence to vary the
terms of an agreement in writing is not admissible, but
evidence to show that there is not an agreement at all
is admissible.’’ (Citations omitted; internal quotation
marks omitted.) Zhou v. Zhang, 334 Conn. 601, 620–22,
223 A.3d 775 (2020).
In the present case, the defendant claimed in its pre-
trial memorandum that ‘‘despite the plaintiff’s efforts
to establish that the 2015 contract was executed by
the then board of directors on October 13, 2015, the
evidence will bear out that same was executed on Octo-
ber 12, 2015, during an executive session of the board
of directors, in violation of . . . § 47-250 (b) (1), which
statute prohibits the taking of a final vote or action
during an executive session.’’ Given that a party may use
extrinsic evidence to prove that a purported contract
‘‘never came into existence’’; (internal quotation marks
omitted) Zhou v. Zhang, supra, 334 Conn. 621; it follows
that a party may do so to prove that a contract, in fact,
exists. See id.The defendant relies on our Supreme Court’s decision
in Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn.
599, 612–13, 849 A.2d 804 (2004), in which the court
concluded that the trial court properly determined that
extrinsic evidence was inadmissible to vary the effective
date of the parties’ agreement. In the present case,
however, the effective date of the 2015 contract is not
varied or contradicted by the court’s finding that it was
executed on October 13, 2015.
Moreover, because the date on which the contract
was approved and executed is not a negotiated term
of the contract, the evidence admitted in the present
case was not used to vary or contradict any terms of the
contract. Consequently, the court properly considered
parol evidence in determining whether the 2015 con-
tract was valid and enforceable.12 See Zhou v. Zhang,
supra, 334 Conn. 622.
III
Finally, the defendant claims that the court improp-
erly awarded prejudgment interest under § 37-3a on the
plaintiff’s award for back pay because § 37-3a does not
apply in the present case.13 We disagree.
We begin with the applicable standard of review. ‘‘The
decision of whether to grant interest under § 37-3a is
primarily an equitable determination and a matter lying
within the discretion of the trial court. . . . In
determining whether the trial court has abused its dis-
cretion, we must make every reasonable presumption
in favor of the correctness of its action. . . . To the
extent that the defendant is challenging the applicability
of § 37-3a under the circumstances, however, our
review is plenary.’’ (Citation omitted; internal quotation
marks omitted.) Chapman Lumber, Inc. v. Tager, 288
Conn. 69, 99–100, 952 A.2d 1 (2008).
The following additional facts are relevant to the
defendant’s claim. On March 2, 2022, after allowing
reargument on its award of prejudgment interest under
§ 37-3a, the court issued a memorandum of decision
declining to alter its award. The court concluded that
the defendant’s failure to pay the plaintiff’s wages under
the 2015 contract constituted the wrongful detention
of money after it became payable and, therefore, that
an award of prejudgment interest pursuant to § 37-3a
was warranted under the circumstances. The court
awarded the plaintiff $11,672.46 in interest on back
wages at a rate of 5 percent. See footnote 8 of this
opinion.
On appeal, the defendant argues that § 37-3a does
not apply in the present case because the plaintiff’s
claim ‘‘is not that he performed duties for which he
was never compensated, but rather that his contract
was rescinded such that he was never able to perform
his duties.’’ The plaintiff argues that the court properly
awarded prejudgment interest on his back wages
because the defendant wrongfully withheld his wages
after they became payable and because the amount due
is a liquidated sum under the terms of the 2015 contract.
We conclude that the court properly awarded prejudg-
ment interest on the plaintiff’s back wages under
§ 37-3a.
Section 37-3a provides in relevant part: ‘‘[I]nterest at
the rate of ten per cent a year, and no more, may be
recovered and allowed in civil actions . . . as damages
for the detention of money after it becomes payable.
. . .’’ ‘‘Although § 37-3a does not use the word ‘wrong-
ful’ to describe a compensable detention of money
under the statute, [our Supreme Court] has long
employed that term to describe such a detention. . . .
[The] earliest cases interpreting § 37-3a reveal that the
term ‘wrongful’ invariably was used interchangeably
with ‘unlawful’ to describe the narrow category of
claims for which prejudgment interest was allowed
under the statute, namely, claims to recover money that
remained unpaid after it was due and payable. . . .
Consistent with this precedent, [our Supreme Court]
. . . clarified that, under § 37-3a, proof of wrongfulness
is not required ‘above and beyond proof of the underly-
ing legal claim.’ . . . In other words, the wrongful
detention standard of § 37-3a is satisfied by proof of
the underlying legal claim, a requirement that is met
once the plaintiff obtains a judgment in his favor on
that claim. . . .
‘‘In fact, an award of interest under § 37-3a . . . is
discretionary with the trial court. Interest is awarded
under [§ 37-3a] when the court determines that such
an award is appropriate to compensate the plaintiff for
the loss of the use of his or her money. ‘Basically, the
question is whether the interests of justice require the
allowance of interest as damages for the loss of use of
money.’ ’’ (Citations omitted; footnotes omitted.)
DiLieto v. County Obstetrics & Gynecology Group,
P.C., 310 Conn. 38, 50–54, 74 A.3d 1212 (2013).
‘‘It is well established that [§] 37-3a provides a sub-
stantive right [to prejudgment interest] that applies only
to certain claims. . . . As early as 1814, [our Supreme
Court] stated that [prejudgment] interest [under § 37-
3a should] be allowed only . . . where there is a writ-
ten contract for the payment of money on a day certain,
as on bills of exchange, and promissory notes; or where
there has been an express contract; or where a contract
can be presumed from the usage of trade, or course of
dealings between the parties; or where it can be proved
that the money has been used, and interest actually
made. . . . Section 37-3a also authorizes prejudgment
interest in cases involving tortious injury to property
when the damages were capable of being ascertained
on the date of the injury. . . . Prejudgment interest is
permitted in such cases on the theory that [a] loss of
property having a definite money value is practically
the same as the loss of so much money; the loss of the
use of the property is practically the same as the loss
of the use (or interest) of so much money. . . . Thus,
[§ 37-3a] does not allow prejudgment interest on claims
that are not yet payable, such as awards for punitive
damages . . . or on claims that do not involve the
wrongful detention of money, such as personal injury
claims . . . . Prejudgment interest is not permitted on
such claims for the simple reason that, until a judgment
is rendered, the person liable does not know what sum
he owe[s], and therefore cannot be in default for not
paying.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Id., 49–50 n.11.
‘‘Prejudgment interest pursuant to § 37-3a is appro-
priate only [if] the essence of the action itself involves
the wrongful withholding of money due and payable to
the plaintiff. The prejudgment interest statute does not
apply when the essence of the action is the recovery
of damages to compensate a plaintiff for injury, damage
or costs incurred as a result of a defendant’s negligence.
It ordinarily does not apply to contract actions in which
the plaintiff is not seeking the recovery of liquidated
damages or the recovery of money advanced under a
contract and wrongfully withheld after a breach of that
contract. The prejudgment interest statute does not
apply to such actions because they do not advance
claims based on the wrongful withholding of money,
but rather seek damages to compensate for losses
incurred as a result of a defendant’s negligence. More-
over, such damages are not considered due and payable
until after a judgment in favor of the plaintiff has been
rendered.’’ Tang v. Bou-Fakhreddine, 75 Conn. App.
334, 349, 815 A.2d 1276 (2003).
Thus, a ‘‘court’s determination [as to whether interest
should be awarded under § 37-3a] should be made in
view of the demands of justice rather than through the
application of any arbitrary rule. . . . Whether interest
may be awarded depends on whether the money
involved is payable . . . and whether the detention of
the money is or is not wrongful under the circum-
stances.’’ (Internal quotation marks omitted.) Sosin v.
Sosin, 300 Conn. 205, 229, 14 A.3d 307 (2011); see also
Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn.
App. 419, 427, 840 A.2d 578 (‘‘Connecticut case law
establishes that prejudgment interest is to be awarded
if, in the discretion of the trier of fact, equitable consid-
erations deem that it is warranted’’ (internal quotation
marks omitted)), cert. denied, 268 Conn. 922, 846 A.2d
881 (2004).
In the present case, the plaintiff sought his salary
pursuant to the 2015 contract. At its core, his claim is
that the defendant unlawfully detained his wages after
January 25, 2016, pursuant to the 2015 contract. Thus,
the plaintiff sought to recover money that remained
unpaid after it was due, and the court found that the
defendant’s breach of the 2015 contract, i.e., preventing
the plaintiff from performing under the 2015 contract
and refusing to pay the plaintiff’s salary, constituted
the wrongful detention of money under § 37-3a. See
DiLieto v. County Obstetrics & Gynecology Group,
P.C., supra, 310 Conn. 48 (‘‘a wrongful detention of
money, that is, a detention of money without the legal
right to do so, is established merely by a favorable
judgment on the underlying legal claim’’). Under these
circumstances, where there is no question that the fail-
ure to pay the plaintiff his wages deprived the plaintiff
of the use of that money, it follows that interest may
be awarded under § 37-3a ‘‘to compensate the plaintiff
for the loss of the use of his . . . money.’’ Id., 54.
Indeed, this is the primary purpose of the statute. See
Sosin v. Sosin, supra, 300 Conn. 230 (‘‘primary purpose
of § 37-3a . . . is not to punish persons who have
detained money owed to others in bad faith but, rather,
to compensate parties that have been deprived of the
use of their money’’). Such compensation ‘‘reimburses
plaintiffs for the interest they could have earned on the
money that was rightfully theirs, but that was not paid
when it became due.’’ Flynn v. Kaumeyer, 67 Conn.
App. 100, 105, 787 A.2d 37 (2001).
The defendant nevertheless claims that the damages
awarded in the present case are akin to damages in a
personal injury action. It argues that the plaintiff ‘‘seeks
damages that will place him in the same position that
he would have been in had the contract been performed,
which such claims have previously been found not to
set forth claims for liquidated damages satisfying the
legal prerequisite for the imposition of prejudgment
interest . . . .’’ (Internal quotation marks omitted.) In
support of its argument, the defendant relies on Foley
v. Huntington Co., 42 Conn. App. 712, 742, 682 A.2d
1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996),
for the proposition that prejudgment interest under
§ 37-3a is not warranted in an action for breach of con-
tract when the damages ‘‘are similar to damages in a
personal injury claim in negligence where a party is
seeking to be made whole for the loss caused by
another.’’ Although we agree with this proposition, we
are not persuaded by the defendant’s argument and
conclude that Foley is distinguishable from the pres-
ent case.
In Foley, the plaintiff claimed that the defendant
breached a contract for the sale of a nursing home
facility. Id., 715–16. A jury returned a plaintiff’s verdict,
awarding him $938,000 on the breach of contract claim,
but the trial court reserved for itself whether to award
prejudgment interest on the breach of contract dam-
ages. Id., 720, 737. In finding that there was sufficient
evidence to support the jury’s award of $938,000, the
trial court noted that the ‘‘plaintiff provided expert testi-
mony that valued the property at $7 million as of the
time for performance of the contract. The price fixed
in the contract was $5.25 million. The difference
between the two figures was the range for damages.’’
Id., 722. The trial court determined that the plaintiff
was not entitled to prejudgment interest under § 37-3a
on the breach of contract damages. Id., 737.
On appeal, this court first determined that the trial
court incorrectly concluded that whether to award
interest under § 37-3a is a legal question for the court
and held that ‘‘the determination of whether interest
pursuant to § 37-3a should be awarded is a question for
the trier of fact.’’ Id., 738. The court then considered
whether § 37-3a applied to the breach of contract dam-
ages, concluding that ‘‘[t]he damages for the breach of
contract in this case are similar to damages in a personal
injury claim in negligence where a party is seeking to
be made whole for the loss caused by another. The
damages claimed and awarded to the plaintiff were for
the loss of the benefit of his bargain. In this case, neither
party claimed to have performed fully or substantially
under the contract so as to invoke the other’s obligation
to pay a liquidated sum or to provide services under
the contract.’’ Id., 742.
In the present case, the defendant breached the con-
tract for the payment of wages by preventing the plain-
tiff from performing fully under the contract, and, unlike
the damages awarded in Foley, the determination of
which required expert testimony regarding the valua-
tion of property, the damages awarded in the present
case were ascertainable at the time of the defendant’s
breach pursuant to the terms of the 2015 contract.14 Cf.
Whitney v. J.M. Scott Associates, Inc., 164 Conn. App.
420, 438–39, 137 A.3d 866 (2016) (‘‘[T]he damages at
issue . . . are not liquidated damages that fall within
the scope of § 37-3a. These damages were uncertain at
the time of the breach, and the defendants could not
know the amount owed until the court determined
them.’’). Further, although the defendant emphasizes
that the plaintiff is not seeking liquidated damages
under the contract and argues that, therefore, § 37-3a
should not apply, much like liquidated damages, the
award for unpaid wages here was determined by the
terms of the contract governing the amount of the plain-
tiff’s salary. See Foley v. Huntington Co., supra, 42
Conn. App. 740 (‘‘[p]rejudgment interest pursuant to
§ 37-3a has been applied to breach of contract claims
for liquidated damages, namely, where a party claims
that a specified sum under the terms of the contract,
or a sum to be determined by the terms of the contract,
owed to that party has been detained by another party’’).
Indeed, the court awarded interest on the plaintiff’s
weekly salary, as each payment would have become
due under the terms of the 2015 contract if the plaintiff
had been allowed to perform under the contract. See
footnote 8 of this opinion. Accordingly, we are not per-
suaded that the damages sought in the present case are
akin to damages in a personal injury action. Rather,
we conclude that the primary purpose of the statute
supports the court’s award of interest on the plaintiff’s
unpaid wages.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also named as defendants eight individuals who served on
the defendant’s board of directors, but he withdrew the complaint as to those
defendants before the second trial. All references herein to the defendant
are to the named defendant.
2
General Statutes (Rev. to 2015) § 31-71b (a) (1) provides in relevant part:
‘‘[E]ach employer . . . shall pay weekly all moneys due each employee on
a regular pay day, designated in advance by the employer . . . .’’
All references herein to § 31-71b are to the 2015 revision of the statute.
General Statutes § 31-72 provides in relevant part: ‘‘When any employer
fails to pay an employee wages in accordance with the provisions of sections
31-71a to 31-71i . . . such employee . . . shall recover, in a civil action,
(1) twice the full amount of such wages, with costs and such reasonable
attorney’s fees as may be allowed by the court, or (2) if the employer
establishes that the employer had a good faith belief that the underpayment
of wages was in compliance with law, the full amount of such wages or
compensation, with costs and such reasonable attorney’s fees as may be
allowed by the court. . . .’’
3
General Statutes § 51-183b provides: ‘‘Any judge of the Superior Court
and any judge trial referee who has the power to render judgment, 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.’’
4
On February 22, 2016, the plaintiff filed an application for prejudgment
remedy and a proposed summons and complaint. After a hearing on April
27 and 28, 2016, the court, Radcliffe, J., granted the plaintiff a prejudgment
remedy in the amount of $62,500. See General Statutes § 52-278d (a) (1).
5
The defendant also asserted an eighth special defense claiming that it
was entitled to a setoff, but the defendant withdrew that special defense
before trial.
6
Our Supreme Court has construed ‘‘completion date’’ under § 51-183b
as including the filing of posttrial briefs. See Frank v. Streeter, 192 Conn.
601, 605, 472 A.2d 1281 (1984) (‘‘When litigation raises difficult questions
of law, a trial court is well-advised to request briefs and to defer its written
decision until such time as the court has had the opportunity to deliberate
and to reach a thoughtful, reasoned conclusion. . . . Delay in the trial courts
is not remedied by affording disappointed litigants automatic access to new
trials whenever the just resolution of their cases requires time for study
and reflection.’’ (Citation omitted.)).
7
On appeal, the defendant does not challenge the applicability of §§ 31-
71b and 31-72 to the circumstances of the present case, in which the employ-
ee’s claim for unpaid wages was not based on services he actually performed.
See, e.g., Assn. Resources, Inc. v. Wall, 298 Conn. 145, 172, 2 A.3d 873 (2010)
(defendant claimed that plaintiff’s claim was for bonuses under employment
agreement, not wages under General Statutes § 31-71a (3)). Because that
issue has not been raised in the present case, we leave it for another day.
8
Although the court did not explain how it calculated the prejudgment
interest on the back wages, it appears that the court adopted the plaintiff’s
methodology for calculating prejudgment interest. Under the plaintiff’s meth-
odology, interest at a rate of 10 percent accrued on the plaintiff’s weekly
salary as it became due, beginning with the week ending January 29, 2016.
As of the week ending August 5, 2016, interest accrued on the difference
between the plaintiff’s weekly salary under the 2015 contract and the amount
he earned from his new job. In his posttrial brief, the plaintiff sought
$23,344.93 in prejudgment interest at a rate of 10 percent per annum pursuant
to § 37-3a, and the court awarded him one half of that amount, $11,672.46
at a rate of 5 percent per annum.
9
General Statutes (Rev. to 2011) § 20-457 (b) provides: ‘‘No person shall:
(1) Present or attempt to present, as his own, the certificate of another, (2)
knowingly give false evidence of a material nature to the commission or
department for the purpose of procuring a certificate, (3) represent himself
falsely as, or impersonate, a registered community association manager, (4)
use or attempt to use a certificate which has expired or which has been
suspended or revoked, (5) offer to provide association management services
without having a current certificate of registration under sections 20-450 to
20-462, inclusive, (6) represent in any manner that his registration constitutes
an endorsement of the quality of his services or of his competency by the
commission or department. In addition to any other remedy provided for
in sections 20-450 to 20-462, inclusive, any person who violates any provision
of this subsection shall be fined not more than five hundred dollars or
imprisoned for not more than one year or be both fined and imprisoned. A
violation of any of the provisions of sections 20-450 to 20-462, inclusive,
shall be deemed an unfair or deceptive trade practice under subsection (a)
of section 42-110b.’’
10
General Statutes (Rev. to 2011) § 20-458 provides in relevant part: ‘‘(a) No
contract between a person contracting to provide association management
services and an association which provides for the management of the
association shall be valid or enforceable unless the contract is in writing
and: (1) Provides that the person contracting to provide management ser-
vices shall be registered as provided in sections 20-450 to 20-462, inclusive,
and shall obtain a bond as provided in section 20-460 . . . .’’
11
We briefly address the jurisdictional issue raised by this court—whether
the rationale of Gardner v. Falvey, supra, 45 Conn. App. 699, requires
dismissal of the defendant’s appeal for lack of a final judgment because the
trial court granted reargument but had not heard reargument at the time
the appeal was filed.
In Gardner, which involved an action for adjudication of paternity and
visitation rights, the defendant mother appealed from an order of the trial
court granting unsupervised visitation to the plaintiff, claiming that the trial
court abused its discretion by denying her motion to appoint an attorney
for the minor child. Id., 700. The day after the defendant appealed, she filed
a motion for reargument as to her motion for appointment of counsel for
the minor child. Id. The trial court granted the defendant’s motion but never
heard reargument. Id. This court concluded ‘‘that, because the trial court
granted a motion for reargument filed by the defendant on [the sole] issue
[raised by the defendant on appeal], but never heard the reargument, the
appeal must be dismissed for lack of a final judgment.’’ Id. This court
further stated: ‘‘[Because] there was no disposition of the reargument, the
controversy is not ripe for our review, and there is no final judgment.’’ Id.,
702. Since Gardner was decided, this court has cited the opinion for this
finality principle only once. See Lambert v. Donahue, 69 Conn. App. 146,
149, 794 A.2d 547 (2002).
In the present case, because the trial court subsequently resolved the
defendant’s motion for reargument and because the defendant amended its
appeal to challenge that ruling, the rationale of Gardner does not require
the dismissal of the appeal. See Practice Book § 61-9 (‘‘[i]f the original
appeal is dismissed for lack of jurisdiction, any amended appeal shall remain
pending if it was filed from a judgment or order from which an original
appeal properly could have been filed’’). Nevertheless, we note that Gard-
ner’s finality principle—that a pending motion for reargument renders the
underlying judgment nonfinal for purposes of appeal—has been overruled
sub silentio by our Supreme Court in RAL Management, LLC v. Valley View
Associates, 278 Conn. 672, 899 A.2d 586 (2006).
In RAL Management, LLC, the court noted that ‘‘a trial court properly
may open a judgment while an appeal is pending, even to address the issue
raised on appeal’’; id., 682; and that, ‘‘[w]hen a timely appeal has been filed
before a motion to open has been filed, however, there is an effective,
final judgment at the time of the appeal, and thus [an appellate] court has
jurisdiction to consider the appeal.’’ Id., 686. Thus, the court explained,
‘‘[b]ecause we may suspend the exercise of our jurisdiction while a trial
court resolves a matter necessary to the proper resolution of the appeal,
the granting of a motion to open while the appeal is pending does not divest
us of jurisdiction to consider the appeal upon the resolution of that motion.’’
Id., 687. Although RAL Management, LLC, involved a motion to open, the
same principles apply to a motion to reargue.
In fact, these principles arguably apply with even greater force to a motion
to reargue because, unlike the granting of a motion to open, the granting
of a motion to reargue a judgment does not alter the judgment. See, e.g.,
Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 187
Conn. 509, 510 n.2, 446 A.2d 1082 (1982) (‘‘[t]he fact that the trial court has
the power to open a judgment . . . does not mean that the judgment is not
final for purposes of appeal’’ (citations omitted)), overruled on other grounds
by Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993). Indeed,
Practice Book § 11-12 (c) provides in relevant part that, ‘‘[i]f the judge grants
the motion [to reargue], the judge shall schedule the matter for hearing on
the relief requested.’’ Practice Book § 11-12 (c). Of course, a court is not
required to hold a hearing upon granting a motion to reargue a decision
that is a final judgment because such motions are governed by Practice
Book § 11-11. See Disturco v. Gates in New Canaan, LLC, 204 Conn. App.
526, 536, 253 A.3d 1033 (2021) (‘‘provisions of Practice Book § 11-11 do not
require the court to schedule a hearing upon granting a movant’s motion
to reargue’’). Nevertheless, after granting reargument, a court still must
determine whether to grant the relief sought, i.e., to alter the judgment.
In other words, although the granting of reargument establishes that the
judgment may change, the judgment is neither vacated nor modified unless
the court grants additional relief upon reargument. For this reason, a court’s
decision to allow reargument does not affect the finality of the judgment.
12
On appeal, the defendant also claims that the court improperly found
that the 2012 contract and the 2013 renewal were enforceable despite the
fact that neither contract complied with General Statutes (Rev. to 2011)
§ 20-458. The defendant argues that this court ‘‘should hold, because the
2012 contract and the 2013 renewal were invalid as a matter of statute
under General Statutes (Rev. to 2011) § 20-458, that the defendant was not
bound by any of the terms therein, including the termination provisions,
and therefore could not have breached [the] same as a matter of law, such
that judgment should enter for the defendant on all counts of the plaintiff’s
complaint.’’ (Emphasis added.)
For his part, the plaintiff notes that the court found that the defendant
breached the 2015 contract and that the defendant ‘‘never argues . . . that
the 2015 contract was affected somehow by the alleged invalidity of the
2012 or 2013 contracts, nor does it explain why invalidation of the 2012 or
2013 contracts would result in invalidation of the 2015 contract.’’ In its reply
brief, the defendant explained that, because the 2012 contract and the 2013
renewal were invalid pursuant to General Statutes (Rev. to 2011) § 20-458
and ‘‘because [the] 2015 contract was void ab initio as entered into in
violation of . . . § 47-250 (b) (1) and unenforceable . . . as a matter of
law,’’ judgment should enter for the defendant on all counts of the complaint.
Because the court found that the defendant breached the 2015 contract,
which was the sole basis for all counts of the plaintiff’s complaint, whether
the 2012 contract and 2013 renewal were invalid is simply irrelevant to the
judgment on appeal. See In re Jaccari J., 153 Conn. App. 599, 609, 101 A.3d
961 (2014) (‘‘Errors of law constitute no ground of reversal if they are
immaterial or such as have not injuriously affected the appellant. . . . It
is axiomatic that to require reversal, error must be harmful.’’ (Citation
omitted; internal quotation marks omitted.)). Consequently, because the
court’s judgment does not depend on the validity of the 2012 contract or
the 2013 renewal and because the defendant fails to demonstrate how the
court’s finding as to those contracts was harmful, we decline to consider
the merits of this claim.
13
The defendant does not challenge the court’s calculation of prejudgment
interest; see footnote 8 of this opinion; but rather the court’s authority to
award prejudgment interest in any amount under § 37-3a.
14
Although we recognize that the damages awarded in the present case
were reduced because the plaintiff mitigated his damages by finding a new
job in July, 2016, at the time that the defendant breached the 2015 contract,
the amount of the plaintiff’s salary was fixed by the terms of that contract.
We are not persuaded that the plaintiff should lose his entitlement to prejudg-
ment interest simply because he took steps that reduced the defendant’s
liability to him for breach of the 2015 contract. Moreover, the manner in
which the court calculated the prejudgment interest results in the defendant
only paying interest on funds that the plaintiff did not have available to him
when they should have been paid by the defendant.