Konover v. Kolakowski

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MICHAEL KONOVER ET AL. v. MICHAEL
KOLAKOWSKI ET AL.
(AC 40173)
(AC 40434)
Lavine, Sheldon and Bishop, Js.
Syllabus
The plaintiffs sought to recover damages from the defendants for, inter alia,
breach of contract. The plaintiffs, K and four companies, had entered into
an agreement with the defendants, a group of individuals and companies,
including B Co., to purchase K’s stock in B Co., of which K was the
sole director and shareholder. At the time of the agreement, B Co. was
a defendant in two groups of pending lawsuits, which led the parties
to include indemnification provisions in the purchase agreement regard-
ing the existing litigation involving B Co. Specifically, K promised to
indemnify B Co. and the defendants for damages resulting from any
judgment rendered against B Co. and the defendants in the existing
litigation. In return, K was given the exclusive right to manage the
existing litigation, and the defendants were required to cooperate with
K in the defense of the existing litigation and in any counterclaims or
new actions brought by K in connection with the existing litigation.
Thereafter, K demanded reimbursement from the defendants for legal
fees incurred during the course of defending the existing litigation.
Subsequently, the plaintiffs brought this action, alleging, inter alia,
breach of contract for B Co.’s refusal to reimburse K for legal fees
incurred during the existing litigation. Thereafter, the defendants filed a
counterclaim, alleging, inter alia, that K’s mismanagement of the existing
litigation constituted a breach of contract and a breach of fiduciary
duty owed to them, and that they were not obligated, pursuant to the
agreement, to reimburse K for expenses incurred in conjunction with
the existing litigation. Subsequently, the trial court granted, in part, the
defendants’ motion for summary judgment as to all claims pertaining
to breach of contract for the defendants’ failure to pay attorney’s fees
in the existing litigation, ruling that the agreement clearly and unambigu-
ously did not require B. Co. to reimburse K for legal fees incurred during
the course of the existing litigation. From the judgment rendered in part
thereon, the plaintiffs appealed to this court. Held:
1. The trial court properly rendered summary judgment in the defendants’
favor, as the language of the agreement clearly and unambiguously did
not obligate the defendants to reimburse K for legal fees incurred during
the existing litigation; the plain language of the agreement required K
to pay for legal fees incurred during the existing litigation and the
defendants to pay for their own legal fees should further claims be
brought against B Co., and it was devoid of any language that imposed
an affirmative obligation on the defendants to indemnify K for any legal
fees and, instead, placed an affirmative obligation on K to indemnify
the defendants for any judgment rendered for the named plaintiffs in
the existing litigation, and in the absence of any express language in
the agreement, this court would not impose such an obligation on
the defendants.
2. The plaintiffs could not prevail on their claim that even if the agreement
was clear and unambiguous, this court should look beyond the four
corners of the agreement to consider the meaning that the parties
ascribed to the indemnification provisions of the agreement by their
course of conduct, which was based on their claim that the defendants
should have been bound by certain judicial admissions in their pleadings
and prevented from now making a contrary argument: where, as here,
the contract language is clear and unambiguous, the intent of the parties
is a question of law, subject to plenary review, the contract is to be
given effect according to its terms and courts must look only to the
four corners of the contract to discern the parties’ intent, and because
judicial admissions are knowing concessions of fact, which inform a
trier of fact but in no way bind the court in its independent, plenary
and judicial determination of applicable law, and the contract language
here was clear and unambiguous, the intent of the parties in utilizing
the language in question was not binding on the court’s legal determina-
tion of the import of the contract language, and this court declined to
give deference to the erroneous construction of the agreement initially
advanced by the defendants in their pleadings; moreover, even if there
may be a circumstance in which extrinsic evidence may be referenced
to glean the intent of the parties in their utilization of plain language,
under the facts of this case, this court declined to stray from well
reasoned jurisprudence that plain language should be accorded its
plain meaning.
Argued September 25—officially released December 18, 2018
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 Hartford, where the
named defendant et al. filed a counterclaim; thereafter,
the trial court, Moukawsher, J., granted in part the
motion for summary judgment filed by the named defen-
dant et al. and rendered judgment in part thereon for
the named defendant et al., from which the plaintiff
Konover Development Corporation et al., appealed to
this court; subsequently, following the granting of per-
mission by this court, the named plaintiff filed a sepa-
rate appeal with this court, which consolidated the
appeals. Affirmed.
Frank J. Silvestri, Jr., with whom were Kristen G.
Rossetti and Jeffrey R. Babbin, for the appellants
(plaintiffs).
Richard J. Buturla, with whom was Ryan P. Driscoll,
for the appellees (defendants).
Opinion
BISHOP, J. This action arises from the indemnifica-
tion provisions in a stock purchase and sales agreement
(agreement) between the plaintiff Michael Konover1 and
the defendants Michael Kolakowski, Simon Etzel, and
Eric Brown (the buyers)2 for the buyers’ purchase of
Konover’s stock in the KBE Building Corporation
(KBE).3 The plaintiffs appeal from the trial court’s ren-
dering of partial summary judgment in favor of the
defendants. On appeal, the plaintiffs claim that the trial
court erroneously ruled that the parties’ agreement does
not obligate the defendants to reimburse Konover for
legal fees incurred while litigating certain legal actions
that had been pending against Konover and KBE at the
time the agreement was executed. In the alternative,
the plaintiffs claim that, even if the language of the
agreement does not require the defendants to reimburse
Konover for any legal fees, the trial court should have
considered admissions in the defendants’ pleadings and
other extrinsic evidence, which evinced an understand-
ing between the parties that the defendants were
responsible for paying their own legal fees incurred in
conjunction with the referenced litigation. We affirm
the judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to the resolution of this appeal.
Konover was the sole director and shareholder of KBE.
The buyers formed KBE Holdings, Inc., to acquire all
of Konover’s KBE stock. On March 30, 2007, the buyers
and Konover executed the agreement at issue, which
set forth the terms for the stock purchase and sale of
all of Konover’s stock.
At the time the agreement was executed, KBE was
a defendant in two separate groups of civil actions,
which the agreement referred to as the ‘‘Existing Litiga-
tion.’’4 One group of actions, denominated the Archam-
bault litigation, arose from personal injuries suffered
by several construction workers, employed by a sub-
contractor of KBE, while building a BJ’s Wholesale Club
in Willimantic.5 The second group of actions, referred
to as the Wells Fargo litigation, stemmed from a foreclo-
sure action in Maryland, in which Wells Fargo had
obtained a judgment of foreclosure relating to a failed
shopping center. In the Wells Fargo litigation, both
Konover individually, and other entities related to him,
had been named as defendants. KBE, however, had not
been named as a defendant. After a final judgment was
rendered in Maryland against both Konover in his indi-
vidual capacity, as well as several other entities, the
prevailing plaintiffs commenced an action against
Konover and several entities owned by him, including
KBE, seeking enforcement of the Maryland judgment
in the United States District Court for the District of
Connecticut.
Recognizing the possibility that KBE would need to
satisfy potential judgments and would incur substantial
legal fees as a result of the existing litigation, Konover
and the buyers included indemnification provisions in
the stock purchase and sales agreement. Pursuant to
§ 4.3 (b) (i) and (ii) of the agreement, Konover promised
to indemnify KBE and the buyers for ‘‘Damages’’
resulting from ‘‘any judgment’’ rendered against KBE
or the buyers in the existing litigation. In exchange,
Konover was given the exclusive right to manage the
existing litigation, and the defendants were required to
cooperate with Konover in the defense of the existing
litigation. The defendants were obligated, as well, to
cooperate with Konover in any counterclaims or new
actions brought by Konover against any parties to the
existing litigation. These potential actions were referred
to as ‘‘Successor Actions’’ in the parties’ agreement.6
Section 4.4 further provided, however, that Konover
was responsible for the cost of any successor actions.
During the course of the existing litigation, the defen-
dants became discontent with Konover’s management
of the litigation. Also, Konover demanded reimburse-
ment from the defendants for legal fees incurred during
the course of defending these matters.7 Unable to
resolve these disagreements, Konover and the plaintiffs
filed a twelve count complaint against the defendants,
alleging, inter alia, breach of contract for KBE’s refusal
to reimburse Konover for legal fees he incurred during
the existing litigation. In turn, the defendants filed a
counterclaim, alleging, inter alia, that Konover’s mis-
management of the litigation constituted a breach of
contract and a breach of fiduciary duty owed to them.
The defendants also claimed, in response to the com-
plaint, that they were not obligated pursuant to the
agreement to reimburse Konover for expenses he
incurred in conjunction with the existing litigation. The
defendants subsequently filed a motion for summary
judgment on the same basis.
After briefing and argument, the trial court granted
the motion for summary judgment on all claims per-
taining to breach of contract for failure to pay attorney’s
fees in the existing litigation, ruling that the agreement
clearly and unambiguously did not require KBE to reim-
burse Konover for legal fees incurred during the course
of the existing litigation, and only required the defen-
dants to pay legal fees for any future claims brought
by the Archambault or Wells Fargo plaintiffs. Specifi-
cally, the court ordered: ‘‘Summary judgment is granted
on all claims premised on breach of a contract to pay
attorneys’ fees in the existing litigation in favor of the
defendants that moved for summary judgment. . . .
Because all counts of the current complaint are through
incorporation by reference premised on the existence
of the contract obligation rejected in this opinion, the
plaintiffs may have [thirty] days leave to file a new
complaint if they believe they can state causes of action
without the contract based premise that KBE promised
to pay fees in existing litigation.’’ The trial court’s ruling
disposed of all claims made by Konover Development
Corporation, Konover and Associates, Inc., Blackboard,
LLC, and Ripple, LLC. These entities subsequently filed
an appeal as a matter of right. The trial court’s ruling
did not, however, dispose of all claims made by Konover
in the complaint. As a result, Konover sought and was
granted permission from the trial court, Moukasher, J.,
and this court to appeal, pursuant to Practice Book
§ 61-4. In a separate motion, this court consolidated the
appeals. Additional facts will be set forth as necessary.
At the outset, we note the applicable standard of
review and legal principles relating to motions for sum-
mary judgment. ‘‘Summary judgment shall be granted if
the pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. Practice Book § 17-49. A fact is
material when it will make a difference in the outcome
of a case.’’ (Internal quotations omitted.) McFarline v.
Mickens, 177 Conn. App. 83, 90, 173 A.3d 417 (2017),
cert. denied, 327 Conn. 997, 176 A.3d 557 (2018). ‘‘Appel-
late review of the trial court’s decision to grant summary
judgment is plenary.’’ Id. ‘‘On appeal, we must deter-
mine whether the legal conclusions reached by the trial
court are legally and logically correct and whether they
find support in the facts set out in the memorandum
of decision of the trial court.’’ Lopes v. Farmer, 286
Conn. 384, 388, 944 A.2d 921 (2008).
I
We begin with the plaintiffs’ claim that the trial court
erroneously determined that the agreement clearly and
unambiguously did not obligate the defendants to reim-
burse Konover for any legal fees incurred during the
existing litigation. The plaintiffs assert that the provi-
sions of the agreement, read in the context of the entire
agreement, unambiguously require the defendants to
pay for their own legal fees in the existing litigation.
As a result, the defendants must reimburse Konover
for legal fees that he advanced during the course of
the existing litigation. In support of this argument, the
plaintiffs urge this court to read § 4.3 (b) (i) and (ii) of
the agreement to exclude KBE’s attorney’s fees in the
existing litigation from Konover’s indemnification obli-
gation. We are not persuaded.
We first set forth the standard of review and legal
principles that guide our analysis. ‘‘The court’s determi-
nation as to whether a contract is ambiguous is a ques-
tion of law; our standard of review, therefore, is de
novo.’’ (Internal quotation marks omitted.) Meridian
Partners, LLC v. Dragone Classic Motorcars, Inc., 171
Conn. App. 355, 364, 157 A.3d 87 (2017). ‘‘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 interpre-
tations of the language 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.’’ (Internal quotation marks omit-
ted.) Hirschfeld v. Machinist, 181 Conn. App. 309, 323–
24, 186 A.3d 771, cert. denied, 329 Conn. 913, 186 A.3d
1170 (2018).
Section 4.3 (b) (i) and (ii) are provisions that detail
Konover’s indemnification obligations to the defen-
dants regarding both the existing litigation and any fur-
ther actions. These sections state, in relevant part: ‘‘The
indemnification for Damages by [Konover] as it relates
to the [existing litigation], inclusive, shall be limited to
[Konover’s] obligation to satisfy any judgment in favor
of the named plaintiff against [the defendants] pursuant
to such actions, and specifically excludes the cost of
[the defendants’] legal fees as well as the costs or
expenses incurred by the [defendants] as a result of
any further claims brought by the plaintiffs in such
actions against [the defendants] . . . .’’ The term ‘‘judg-
ment’’ is defined in § 4.3 (b) (iii) to include ‘‘actual
Damages assessed against [the defendants] . . . and
in every instance, shall expressly exclude and be limited
by those matters otherwise specifically set forth above
in [§ 4.3 (b) (i) and (ii)] . . . .’’ Additionally, the term
‘‘Damages’’ is defined in § 4.6 to include ‘‘fees and rea-
sonable expenses of attorneys.’’
The plaintiffs assert that this language clearly and
unambiguously requires the defendants to reimburse
Konover for legal fees incurred in conjunction with the
existing litigation. It does not. The plaintiffs’ construc-
tion of § 4.3 (b) (i) and (ii) requires the use of the
language ‘‘as well as’’ to serve as a buffer between ‘‘cost
of [the defendants’] legal fees’’ and ‘‘further claims.’’
Put differently, the plaintiffs argue that the phrase ‘‘as
well as’’ must be construed to exclude the ‘‘cost of [the
defendants’] legal fees’’ from ‘‘further claims,’’ and must
instead be attributed to the cost of legal fees for the
existing litigation. This interpretation tortures the
words of the agreement to conform to the will of the
plaintiffs. The words ‘‘as well as’’ are commonly used
as an inclusive, connecting phrase, rather than a divid-
ing one.8 Here, ‘‘as well as’’ plainly includes the cost of
the defendants’ legal fees in the category of expenses
specifically excluded from Konover’s indemnification
obligations for further claims. In other words, the plain
language of the contract requires Konover to pay for
legal fees incurred during the existing litigation, but the
defendants must pay for their own legal fees should
further claims be brought against KBE.9 This reading
of § 4.3 (b) (i) and (ii) is supported when construing
the language of the agreement as a whole.
Under § 4.4 of the agreement, Konover had the exclu-
sive authority to manage the existing litigation. Further,
he was obligated to satisfy any judgment against the
defendants in the existing litigation under § 4.3 (b) (i)
and (ii). If this court were to accept the plaintiffs’ read-
ing of the agreement, and §§ 4.3 and 4.4 in particular,
Konover could effectively use his managerial authority
to incur an open ended amount of legal expenses, at
the defendants’ expense, to defend against a judgment
that he alone would be obligated to satisfy. As the trial
court aptly observed in rendering summary judgment
in favor of the defendants: ‘‘There is no way to convert
any language limiting what Konover must do into lan-
guage requiring KBE to do something that would be
extraordinary and was not mentioned in the contract:
assume an affirmative obligation to pay an unlimited
amount of attorneys’ fees to defend against claims that
ultimately Konover alone might have to pay. Indeed,
such an interpretation is not only disconnected from
any language in the contract but is made absurd by the
contract provision that gives Konover the sole right to
manage the litigation—including how much is spent
defending it and for how long. With someone else’s
millions for defense, Konover would have precious little
incentive to pay even a penny for tribute regardless [of]
whether it would make the cases go away entirely.’’
Our courts refuse to ‘‘construe a contract’s language
in such a way that it would lead to an absurd result.’’
Welch v. Stonybrook Gardens Cooperative, Inc., 158
Conn. App. 185, 198, 118 A.3d 675, cert. denied, 318
Conn. 905, 122 A.3d 634 (2015).
The plaintiffs also argue that the trial court’s reading
of § 4.3 (b) (i) and (ii) renders the word ‘‘costs’’ superflu-
ous because the manner in which the court interpreted
the agreement would exclude both the cost of KBE’s
legal fees and the costs incurred by the buyers as a
result of further claims. In other words, the plaintiffs
argue that the words ‘‘cost’’ and ‘‘costs’’ are synonymous
and, thus, cannot both be understood to apply to ‘‘future
claims’’ without being duplicative. We disagree.
The plaintiffs would have the court interchange the
term ‘‘cost’’ and ‘‘costs’’ in its construction. These
words, however, commonly have different meanings.
‘‘We often consult dictionaries in interpreting contracts
. . . to determine whether the ordinary meanings of
the words used therein are plain and unambiguous, or
conversely, have varying definitions in common par-
lance.’’ (Internal quotation marks omitted.) NPC
Offices, LLC v. Kowaleski, 320 Conn. 519, 528, 131 A.3d
1144 (2016). The word ‘‘cost’’ is often defined as the
‘‘amount paid or charged for something.’’ Black’s Law
Dictionary (9th Ed. 2009). Conversely, the word ‘‘costs’’
commonly refers to ‘‘charges or fees taxed by a court’’
or ‘‘expenses of litigation, prosecution, or other legal
transaction, [especially] those allowed in favor of one
party against the other.’’ Id., 398. ‘‘[T]he term costs is
a term of art having a limited, well-defined legal mean-
ing as statutory allowances to a prevailing party in a
judicial action in order to reimburse him or her for
expenses incurred in prosecuting or defending the pro-
ceeding.’’ (Internal quotation marks omitted.) Yeager
v. Alvarez, 134 Conn. App. 112, 121, 38 A.3d 1224 (2012).
Consequently, the ordinary reading of § 4.3 (b) (i) and
(ii) would exclude from Konover’s indemnification obli-
gation the cost (sum or amount charged) of KBE’s attor-
ney’s fees and the costs (statutory allowances of the
prevailing party) or expense incurred by KBE as a result
of future claims, but not the existing litigation.
As noted by the trial court, the stock purchase
agreement is devoid of any language that imposes an
affirmative obligation on the defendants to indemnify
Konover for any legal fees incurred during the existing
litigation. Rather, the agreement squarely places an
affirmative obligation on Konover to indemnify the
defendants for any judgment rendered for the named
plaintiffs in the existing litigation. We decline to impose
such an obligation on the defendants in the absence of
any express language in the agreement. ‘‘[A] court can-
not import into the agreement a different provision nor
can the construction of the agreement be changed to
vary the express limitations of its terms.’’ Deming v.
Nationwide Mutual Ins. Co., 279 Conn. 745, 781–82,
905 A.2d 623 (2006).
We conclude that the language of the agreement is
clear and unambiguous; the defendants are not obli-
gated to reimburse Konover for legal fees incurred dur-
ing the existing litigation. Accordingly, we conclude
that the court properly rendered summary judgment in
the defendants’ favor.
II
The plaintiffs next claim that even if the agreement
is clear and unambiguous, we should look beyond the
four corners of the agreement to consider the meaning
the parties ascribed to the indemnification provisions
of the agreement by their course of conduct. We reject
this invitation to error.
The following additional facts are pertinent to the
plaintiffs’ claim. The defendants initially took the posi-
tion in their counterclaim and memorandum in support
of their motion for summary judgment that KBE was
required to pay for its own legal fees in the existing
litigation. At oral argument on the defendants’ motion
for summary judgment, the trial court opined that the
agreement was clear and unambiguous, and did not
obligate the defendants to indemnify Konover for legal
fees incurred during the existing litigation. Conse-
quently, after oral argument, the defendants adopted
the trial court’s interpretation of the agreement in their
supplemental memorandum of law in support of their
motion for summary judgment. Conversely, the plain-
tiffs argued that the trial court’s reading of the contract
was inconsistent with the intent of the parties.
As a preliminary matter, the plaintiffs urge the court
to look to the admissions in the defendants’ pleadings
to discern the parties’ understanding of the contract
language. In essence, Konover asserts that the defen-
dants should be bound by their judicial admissions and,
therefore, they should be prevented from now making
a contrary argument. ‘‘Judicial admissions are voluntary
and knowing concessions of fact by a party or a party’s
attorney occurring during judicial proceedings. . . .’’
Kopacz v. Day Kimball Hospital of Windham County,
Inc., 64 Conn App. 263, 272, 779 A.2d 862 (2001). ‘‘Admis-
sions, whether judicial or evidentiary, are concessions
of fact, not concessions of law.’’ Borrelli v. Zoning
Board of Appeals, 106 Conn. App. 266, 271, 941 A.2d
966 (2008). ‘‘[C]oncessions of fact inform the trier of
the fact, court or jury, but they in no way bind the court
in its independent, plenary, and judicial determination
of the applicable law.’’ C. Tait & E. Prescott, Connecti-
cut Evidence (5th Ed. 2014) § 8.16.3 (a), p. 529. The
issue at hand is a question of law and not fact. Because
we hold that the language of the contract is clear and
unambiguous, the intent of the parties in utilizing the
language in question is not binding on the court’s legal
determination of the import of the contract language.
Accordingly, the trial court and we, on review, decline
to give deference to the erroneous construction of the
agreement initially advanced by the defendants in
their pleadings.
‘‘If the language of a contract is clear and unambigu-
ous, the intent of the parties is a question of law, subject
to plenary review.’’ Schimenti v. Schimenti, 181 Conn.
App. 385, 396, 186 A.3d 739 (2018). ‘‘Where the language
of the contract is clear and unambiguous, the contract
is to be given effect according to its terms.’’ Awdziewicz
v. Meriden, 317 Conn. 122, 129–30, 115 A.3d 1084 (2015).
‘‘When only one interpretation of a contract is possible,
the court need not look outside the four corners of the
contract.’’ (Internal quotation marks omitted.) Isham v.
Isham, 292 Conn. 170, 180, 972 A.2d 228 (2009); accord
Dejana v. Dejana, 176 Conn. App. 104, 115, 168 A.3d
595, cert. denied, 327 Conn. 977, 174 A.3d 195 (2017).
‘‘[E]xtrinsic evidence may be considered in determining
contractual intent only if a contract is ambiguous.’’
(Internal quotation marks omitted.) Orange Palladium,
LLC v. Readey, 144 Conn. App. 283, 297, 72 A.3d 1191(2013). ‘‘When the intention conveyed by the terms of
an agreement is clear and unambiguous, there is no
room for construction.’’ (Internal quotation marks omit-
ted.) Levine v. Massey, 232 Conn. 272, 278, 654 A.2d
737 (1995). ‘‘The circumstances surrounding the making
of the contract, the purposes which the parties sought
to accomplish and their motives cannot prove an intent
contrary to the plain meaning of the language used.’’
(Internal quotation marks omitted.) Id., 279. In sum,
decisional law holds that if the language of the contract
is clear and unambiguous, our courts must look only
to the four corners of the contract to discern the par-
ties’ intent.
The plaintiffs rely on Sims v. Honda Motor Co., Ltd.,
225 Conn. 401, 623 A.2d 995 (1993), to support the
proposition that our courts do not strictly adhere to
the four corners rule in all circumstances. We find Sims,
however, to be inapplicable to the current case. In Sims,
our Supreme Court recognized that its holding, which
enabled the court to look beyond the four corners of
a contract, even if the language was clear and unambigu-
ous, was limited to the application of General Statutes
§52-572e, which relates to general releases.10 For addi-
tional support, Konover cites to numerous treatises and
Justice Berdon’s dissenting opinion in Levine v. Massey,
supra, 232 Conn. 284, for the proposition that, under
the appropriate circumstances, a court may look
beyond the plain language of a contract to glean the
intention of the parties to the agreement. We do not
find these authorities determinative of the issue we
confront.
In Levine, supra, 232 Conn. 280–83, our Supreme
Court strictly adhered to the four corners approach to
contract interpretation, holding that the plain language
of the contract was clear and unambiguous and did not
entitle the defendant to royalty payments for a new
medical device invented by one of the plaintiffs. In
his dissent, Justice Berdon rejected the four corners
approach as a constant limitation to analysis and
instead advocated for the use of extrinsic evidence in
all instances to determine the parties’ intent. Id., 286–87
(Berdon, J., dissenting). Similarly, Justice Berdon relied
on numerous treatises to support the proposition that
language is inherently ambiguous and that a court must
not ascribe a meaning to a contract outside the contem-
plation of the parties.11 Id., 287.
Even if there may be a circumstance in which extrin-
sic evidence may be referenced to glean the intent of
the parties in their utilization of plain language, we
are unwilling, in this instance, to stray from our well
reasoned jurisprudence that plain language should be
accorded its plain meaning.
Accordingly, we reject the plaintiffs’ argument that
this court should embrace a more modern theory of
contract interpretation that looks outside the four cor-
ners of the contract to discern the intention of the
parties irrespective of whether the contract is
ambiguous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Additional plaintiffs in this appeal include Konover Development Corpo-
ration, Konover & Associates, Inc., Blackboard, LLC, and Ripple, LLC. For
clarity, we refer to Michael Konover individually as Konover, and the parties
associated with him collectively as the plaintiffs.
2
Additional defendants in this appeal include KBE Building Corporation,
KBE Holdings, Inc., Konover Construction Corporation South, Sturdy Fence
Corp., Elite Construction Rentals, LLC, and Conn-struction, LLC. For clarity,
we refer to the defendants individually by name and collectively as the
defendants.
3
The company was named Konover Construction Company before its
sale to the buyers. For simplicity, we refer to the entity as KBE even when
the events described occurred prior to KBE’s renaming.
4
For clarity, we also refer to these lawsuits collectively as the existing liti-
gation.
5
The Archambault litigation also included issues relating to insurance
coverage.
6
Section 4.4 of the agreement states, in relevant part: ‘‘As to the indemnifi-
cations set forth in [§] 4.3 [of the agreement] with respect to the Existing
Litigation and the Successor Actions (as hereinafter defined) . . .
[Konover] shall have and retain the sole right to manage the litigation,
including without limitation, the settlement thereof or the right to prosecute
appeals with respect to any judgment arising thereunder . . . . [The defen-
dants] shall, at no cost to [Konover], cooperate in good faith with reasonable
diligence to assist [Konover] in connection with the defense of the Existing
Litigation and the prosecution, as the case may be, upon request of [Konover]
in the name of any of the Companies, of counter-claims and/or new litigation
against any party . . . . [Konover] will pay the cost of any such Successor
Actions (including reasonable legal fees of the Companies) . . . .’’
7
Specifically, in the Archambault litigation, the defendants objected to
Konover’s decision to retain Attorney Wesley Horton to supplement KBE’s
existing appellate defense counsel, alleging that they were unaware that
Horton had been retained until after Konover sought reimbursement. More-
over, in the Wells Fargo litigation, the defendants claimed that Konover
failed to settle claims involving KBE so that funds from a director and officer
insurance policy could instead be used for his personal defense. The plaintiff
sought to compel KBE to pay its fair share of legal fees, which he calculated
by evenly apportioning legal fees incurred by all defendants in the litigation.
8
‘‘As well as’’ is commonly understood to mean ‘‘and in addition [to]’’ or
‘‘and also.’’ See Merriam-Webster Collegiate Dictionary (11th Ed. 2003);
Ballentine’s Law Dictionary (3rd Ed. 1969).
9
In the alternative, the plaintiffs argue that the reading of the connecting
phrase is, at a minimum, ambiguous, ‘‘creating a factual issue of interpreta-
tion that precludes summary judgment for the defendants.’’ An ambiguity,
however, ‘‘must emanate from the language used in the contract rather than
from one party’s subjective perception of the terms.’’ (Internal quotation
marks omitted.) Bassford v. Bassford, 180 Conn. App. 331, 348, 183 A.3d
680 (2018).
10
In Sims, our Supreme Court stated: ‘‘We recognize that our conclusion is
a departure from the general rule of contract construction that unambiguous
contract provisions are to be given their plain meaning without reference
to evidence outside the four corners of the agreement. . . . Rigid applica-
tion of that general rule would, however, frustrate the purposes of [General
Statutes] § 52-572e, which counsels against uncritical enforcement of boil-
erplate general release language and, therefore, justifies treating such lan-
guage differently from how we treat other contractual provisions.
Accordingly, we hold that, in light of the purposes of § 52-572e, general
releases like that executed by Sims are not subject to that traditional rule
of contract construction.’’ Id., 415.
11
Specifically, Justice Berdon stated, in relevant part: ‘‘[W]hile it is true
that under the ‘four corners’ doctrine, a court may not consider any extrinsic
evidence unless a contract is ambiguous, the more modern view, propounded
by Professors Corbin and Farnsworth, recognizes that ‘the meaning of lan-
guage may vary greatly according to the circumstances’ and that ‘all language
is infected with ambiguity and vagueness and that even language that seems
on its face to have only one possible meaning may take on a different
meaning when all the circumstances are disclosed . . . .’ 2 E. Farnsworth,
Contracts (1990) § 7.12, pp. 277–78. Under this theory, extrinsic evidence
is always available to be used for interpreting the intent of the parties. Id.,
p. 272. After all, as Professor Corbin observed, ‘[n]o contract should ever
be interpreted and enforced with a meaning that neither party gave it.’ 3 A.
Corbin, Contracts (Sup.1994) § 572B, p. 443 . . . . ’’ Levine v. Massey,
supra, 232 Conn. 286–87 (Berdon, J., dissenting).