SHELDON, J.
This breach of contract action, filed by the plaintiff, R.S. Silver Enterprises, Inc., against the defendants, Henry Pascarella and Riversedge Partners, returns to this court following our remand to the trial court for resolution of a jurisdictional challenge to the plaintiff's standing to prosecute this action, as pleaded in the defendants' twenty-first special defense. R.S. Silver Enterprises, Inc. v. Pascarella, 148 Conn.App. 359, 366, 86 A.3d 471 (2014). Pending resolution of that challenge, which was based upon the plaintiff's alleged assignment to a nonparty of its rights and interests under the contract it here claims that the defendants breached, we retained jurisdiction over and stayed further proceedings as to the defendants' remaining claims in their prior appeal. Id. On remand, the trial court, Lee, J., rejected the defendants' jurisdictional challenge, finding that the plaintiff never assigned away its rights and interests under the contract here at issue. The defendants now challenge that determination, along with several earlier rulings by the trial court, J. Downey, J., and Hon. Alfred J. Jennings, Jr., judge trial referee, over which we retained jurisdiction pending the remand hearing. Because we agree with the trial court's rejection of the jurisdictional challenge presented in the defendants' twenty-first special defense, we must now reach and address those other challenged rulings on this appeal.
The other challenged rulings over which we retained jurisdiction involve alleged errors of two types. The first are alleged errors by the pretrial motions judge, J. Downey, J., in striking certain of the defendants' special defenses. Specifically, the defendants challenge the trial court's orders striking: their second special defense, in which they alleged that the plaintiff is barred from pursuing this action as a matter of public policy because reinstatement of the plaintiff as a corporation by the Secretary of the State in order to pursue this case was made possible only by the plaintiff's defrauding of the Commissioner
This court recited the following relevant factual and procedural history in deciding the defendants' prior appeal. "On April 28, 1997, the plaintiff entered into a `participation agreement' with the defendants, under which the plaintiff invested $1,250,000 in a partnership formerly known as SPD Associates (SPD), and now known as Riversedge Partners, involving owning and managing a commercial building in Greenwich. Pursuant to that agreement, the plaintiff, in exchange for its investment, was given the contractual right to participate `in any increase in the economic value' and `future economic enhancement' of the building. More specifically, the agreement entitled the plaintiff to split equally all amounts received by the defendants in connection with the building after the making of certain priority payments.
"On October 11, 2006, the plaintiff commenced this action, alleging that the defendants had failed to split with it any amounts they had received in connection with the building, and, in fact, had never paid the plaintiff anything pursuant to the agreement. The plaintiff also sought an accounting of the business and affairs of SPD and alleged breach of fiduciary duty. In response, the defendants filed an answer and twenty-two special defenses. On August 19, 2008, the plaintiff filed a motion to strike all but two of the defendants' special defenses, in response to which the defendants filed an objection. On September 26, 2008, the plaintiff responded to the defendants' objection by filing a reply memorandum of law. On September 29, 2008, Judge Downey orally granted the plaintiff's motion to strike several of the defendants' special defenses, including the defendants' second, fourth, sixth and twenty-first special defenses, which are the subject of the defendants' appeal. In so doing, the court noted simply, without further explanation, that the special defenses it was striking `are either not recognized under Connecticut law or are not appropriately drafted such that they would survive a motion to strike.' The court then stated: `I adopt the foundation for my decision all the arguments advanced in [the plaintiff's] brief of August 19, [2008] and September 26, [2008]....
"The case was then tried before Judge Jennings on various dates in early 2009. At the conclusion of trial, the defendants sought to withdraw their counterclaims, but the court, having determined that no good cause existed to permit the withdrawal, instead dismissed the counterclaims. The court ultimately rendered judgment in favor of the plaintiff on its breach of contract claim, awarding it damages in the
As previously noted, this court remanded this case for adjudication of the jurisdictional challenge asserted in the defendants' twenty-first special defense. On remand, the trial court held hearings over several days, during which testimony and exhibits were presented, and the parties submitted posthearing memoranda. The court issued a memorandum of decision dated January 26, 2015, in which it concluded that the "plaintiff did not assign its right to payment under the [p]articipation [a]greement to Silver LLC, did not lack standing to sue, and accordingly, that the court has subject matter jurisdiction over this controversy." The defendants have appealed from that determination. Additional facts will be set forth as necessary.
We begin, as we must, with an examination of the defendants' claims that the plaintiff did not have standing to bring this action, and thus that the trial court did not have subject matter jurisdiction to hear it. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518-19, 970 A.2d 583 (2009) (when issue affecting court's subject matter jurisdiction raised, court is obliged to decide that issue before taking one step further to adjudicate other matters pending before it in the action). They have challenged the plaintiff's standing in two of their special defenses, the twenty-first and the sixth, which we will address in turn.
We begin by setting forth the applicable standard of review. "If a party is found to lack standing, the court is without subject matter jurisdiction to hear the case. Because standing implicates the court's subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing. A trial court's determination of whether a plaintiff lacks standing is a conclusion of law that is subject to plenary review on appeal. We conduct that plenary review, however, in light of the trial court's findings of fact, which we will not overturn unless they are clearly erroneous.... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.... A court's determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made." (Citations omitted; internal quotation marks omitted.). Success, Inc. v.
With these principles in mind, we turn to the merits of the defendants' two challenges to the plaintiff's standing, and thus to the trial court's jurisdiction.
We first address the defendants' challenge to the trial court's rejection of their twenty-first special defense, in which they alleged that before this action was commenced, the plaintiff had assigned to a nonparty its rights under the participation agreement, the contract which it claims in this action that the defendants breached. The defendants claim that the trial court erred in determining that the formation agreement, under which the plaintiff allegedly assigned its rights under the participation agreement to a nonparty, was clear and unambiguous, and that the plaintiff did not thereby assign its rights under the participation agreement to any other party. We are not persuaded by the defendants' arguments.
The following additional facts are relevant to this claim. In the defendants' prior appeal, this court decided that the trial court, J. Downey, J., had improperly stricken the defendants' twenty-first special defense. In so concluding, we reasoned as follows: "In their twenty-first special defense, the defendants alleged the occurrence of a transaction that purportedly resulted in the transfer of all of the plaintiff's rights under the participation agreement to a third party.... A valid assignment transfers to the assignee exclusive ownership of all of the assignor's rights to the subject assigned and extinguishes all of those rights in the assignor.... If proven, the facts set forth in the defendants' twenty-first special defense would establish that the plaintiff had no right to sue the defendants for breach of the participation agreement. Because such allegations were not inconsistent with the allegations of the plaintiff's complaint, but, nevertheless, if proven, would have defeated the plaintiff's claims against them, the trial court improperly struck that special defense." (Citation omitted; internal quotation marks omitted.) R.S. Silver Enterprises, Inc. v. Pascarella, supra, 148 Conn.App. at 365-66, 86 A.3d 471.
On remand, the trial court made the following findings of fact.
"On or about April 28, 1997, the investment was documented in a handwritten draft of the [p]articipation [a]greement, which recites that in return for the $1,250,000 investment, R.S. Silver & Company was assigned an economic interest in the anticipated restructured SPD Associates partnership (which owned the Pemberwick
"In 2001, Silver Co. needed an infusion of money to continue operating. Silver was introduced by Nick DeLuca, who had worked for Silver's company for fifteen years, to Robert Gillon, a successful, retired businessman, who was interested in investing and participating in a commercial real estate brokerage firm.... After several rounds of discussions, Silver, Silver Co. (referred to as `Silvercorp'), Gillon and DeLuca entered into a [f]ormation and [c]ontribution [a]greement as of September 28, 2001 (the `[f]ormation [a]greement'). Pursuant to the [formation] agreement, the parties formed a limited liability company to be known as R.S. Silver & Co., LLC (`Silver LLC') to engage in the business of commercial real estate brokerage. Silver Co. was to change its name and to discontinue the conduct of real estate brokerage `except as may be necessary to wind up its affairs.' ... Silver's capital contribution was described in Paragraph 2 and on Schedule A as customer files/lists, including databases and customer relationships, including `the name `R.S. Silver & Co.' and any variation and any goodwill associated therewith.' Robert Silver had been in the brokerage business for approximately forty years at the time....
"Paragraph 8 of the [f]ormation] [a]greement provided: `As of the effective date of this [a]greement, all commissions and other income resulting from the business of real estate brokerage conducted under the name of `R.S. Silver & Co.' shall be paid to and belong to the LLC. However, as a transitional matter, the Parties agree to adjust the commissions payable on the following transactions if and when the commissions are earned and paid.' ...
"Paragraph 9 of the [f]ormation [a]greement provided: `The effective date of this [a]greement shall be September 1, 2001. This shall mean that any `R.S. Silver' income or reasonable and necessary expense shall be adjusted between Silvercorp and the LLC as of such date.' ...
"The [f]ormation [a]greement does not mention the Silver Participation in the [p]articipation [a]greement."
On examining the language of the formation agreement, the trial court on remand found that: "The language of the [f]ormation [a]greement must be interpreted on the strength of its language and the ordinary usage of its terms. It is uncontested that the agreement makes no mention of the [p]articipation [a]greement or the Silver Participation, although DeLuca testified that he was generally aware of it at the time of the execution of the [f]ormation [a]greement. The schedule of assets transferred by Silver Co. to the new LLC, contained in Paragraph 2 and Schedule A, does not include any reference to Silver's interest in the [p]articipation [a]greement.
"As a result, if transferred, the interest would have to be included in the general revenue flow assigned under Paragraph 8.
"[The] defendants' assertion that the Silver Participation might be considered as arising from real estate brokerage because the money used to purchase it was earned as a commission from the 9 West transaction is not persuasive. Because Silver had spent his career earning brokerage commissions, this construction would put any asset or revenue of any kind purchased by Silver within the ambit of the clause, including stock dividends, the gain from the sale of his residence, or even lottery tickets.
"Paragraph 9 points away from this absurd conclusion. It apportions R.S. Silver income earned or expenses incurred prior to September 1, 2001, to Silver Co. and income earned or expenses incurred thereafter to Silver LLC. Because the 9 West commission was earned in 1997, it would remain with Silver Co. under Paragraph 9.
"In summary, the court concludes that the only reasonable construction of the language of the [f]ormation [a]greement is that the Silver Participation was not assigned by its terms.
"As a result of the foregoing, the court has found the relevant language of the [f]ormation [a]greement to be unambiguous and that it should be interpreted on the basis of its language and the circumstances of the transaction. [The] defendants assert that this is error and that they should have been allowed to present evidence of the parties' views on the purpose or meaning of the language of the
"By reason of the foregoing, the court concludes that the defendants have not satisfied their burden of proving by a fair preponderance of the evidence that the Silver Participation was assigned to the Silver LLC as alleged in the twenty-first special defense. Accordingly, their challenge to the jurisdiction of the court in these proceedings fails." (Footnote added; internal quotation marks omitted.)
The defendants now claim that the trial court erred in finding the formation agreement clear and unambiguous and that the plaintiff had not assigned to a nonparty its rights under the participation agreement. "It is well established that the determination as to whether language of a contract is plain and unambiguous is a question of law subject to plenary review.... If, however, the contractual language is found to be ambiguous, [s]uch ambiguity permits the trial court's consideration of extrinsic evidence as to the conduct of the parties.... [T]he trial court's interpretation of a contract, being a determination of the parties' intent, is a question of fact that is subject to reversal on appeal only if it is clearly erroneous.... Accordingly, our review is twofold. First, we must determine de novo whether the contractual language is ambiguous. If we conclude that it is, we must determine whether the trial court's factual findings are clearly erroneous.
"In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning.... A contract is unambiguous when its language is clear and conveys a definite and precise intent.... The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.... Moreover, the mere fact that the parties advance different interpretations of the 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 susceptible to more than one reasonable interpretation, the contract is ambiguous." (Citations omitted; internal quotation marks omitted.) Perez v. Carlevaro, 158 Conn.App. 716, 722-23, 120 A.3d 1265 (2015).
"The key language in paragraph 8 is, all commissions, or other income resulting from the business of real estate brokerage conducted under the name R.S. Silver & Co. shall be paid to and belong to the LLC....
"The key language in paragraph 9 is, any R.S. Silver income ... shall be adjusted between Silvercorp [plaintiff] and the LLC as of such date [September 1, 2001]." (Citations omitted; internal quotation marks omitted.)
The defendants contend that "[t]he question is whether this language in paragraphs 1, 8 and 9 can reasonably be read to support this special defense," namely, that the plaintiff assigned its rights under the participation agreement to a third party. There is no language in the previously quoted provisions of the agreement, or, in fact, in the entire agreement, that explicitly states that the plaintiff assigned such contractual rights. Rather, to prove their case, the defendants parse the language of various phrases in the previously quoted provisions of the formation agreement, focusing on certain words or phrases, which, when read in isolation, might be claimed to suggest ambiguity. It cannot reasonably be doubted that, taken individually, various words or phrases taken from the subject language, such as "any" or "other," could be given differing interpretations, and thus, potentially, be considered ambiguous. When, however, those words or phrases are read, as they must be, both in the particular sentences in which they are used and considered in the broader context of the entire agreement, we agree with the trial court that they unambiguously did not assign any of the plaintiff's rights under the participation agreement to a third party. Instead, the plain language of the formation agreement makes it clear that that agreement is strictly a real estate brokerage agreement. Accordingly, it makes no mention whatsoever of the participation agreement. The trial court appropriately rejected the defendants' arguments to the contrary, and thereby properly determined that it did not lack subject matter jurisdiction over this action on the ground asserted in the defendants' twenty-first special defense.
The defendants also challenged the trial court's subject matter jurisdiction in their sixth special defense, wherein they claimed that the plaintiff lacked the legal capacity to bring this action because it should have been barred from reinstatement as a Connecticut corporation before this action was commenced. The plaintiff counters that the defendants have no standing to assert this jurisdictional challenge because they are not aggrieved by the Secretary of the State's reinstatement of it. We agree with the plaintiff.
"It is axiomatic that aggrievement is a basic requirement of standing.... If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the
The defendants similarly challenged the reinstatement of R.S. Silver & Company, Inc., in a previous action in which they sought a declaratory judgment that the reinstatement had been based on a fraudulently induced statement by the Commissioner of Revenue Services to the Secretary of the State that back taxes owed by R.S. Silver & Company, Inc., had been paid. Pascarella v. Commissioner of Revenue Services, 119 Conn.App. 771, 772-73, 989 A.2d 1092, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010). The plaintiffs named the Commissioner of Revenue Services, the Secretary of the State and R.S. Silver Enterprises, Inc., as defendants in the previous action. The trial court dismissed the action for lack of subject matter jurisdiction. On appeal, this court affirmed the judgment of dismissal, reasoning as follows: "The plaintiffs are defendants in an unrelated action brought against them in 2006 by the defendant, R.S. Silver Enterprises, Inc.... The plaintiffs claim that they are aggrieved because they are forced to defend a lawsuit against R.S. Silver Enterprises, Inc., and argue that R.S. Silver Enterprises, Inc., would not be able to maintain its lawsuit if it had not been reinstated by the secretary of the state. We review the plaintiffs' claim de novo ... and conclude that the plaintiffs failed to provide evidence of aggrievement. The plaintiffs' participation in an unrelated lawsuit does not establish classical aggrievement, and this court has held that § 33-892 [the statute concerning reinstatement following administrative dissolution] does not extend statutory standing to third parties to challenge the general fitness of an applicant for reinstatement." (Citation omitted; footnotes omitted.) Id., at 772-74, 989 A.2d 1092.
On the basis of this court's prior determination that the defendants are not aggrieved by the reinstatement of the plaintiff following its administrative dissolution, they likewise lack standing to assert a challenge to the plaintiff's reinstatement as a special defense to this action. The trial court thus properly rejected this challenge to its subject matter jurisdiction.
The defendants also claim that the trial court erred by striking their second special defense, in which they alleged that the plaintiff is barred from pursuing this action as a matter of public policy because reinstatement of the plaintiff as a corporation by the Secretary of the State in order to pursue this case was made possible by the plaintiff's defrauding of the Commissioner of Revenue Services; and their
We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling... is plenary.... We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.... Thus, [i]f facts provable in the [pleading] would support a [special defense], the motion to strike must be denied.... Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a [pleading] challenged by a ... motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006).
"Practice Book § 10-50, which sets forth the basic parameters for special defenses, provides: No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own." (Internal quotation marks omitted.) R.S. Silver Enterprises, Inc. v. Pascarella, supra, 148 Conn.App. at 365, 86 A.3d 471.
The defendants claim that the trial court erred in striking their second special defense, in which they alleged that the plaintiff is barred from pursuing this action as a matter of public policy because reinstatement of the plaintiff as a corporation by the Secretary of the State in order to pursue this case was made possible only because of the plaintiff's defrauding of the Commissioner of Revenue Services. As explained in part I B of this opinion, and this court's previous decision in Pascarella v. Commissioner of Revenue Services, supra, 119 Conn.App. 771, 989 A.2d 1092, the defendants lack standing to challenge the plaintiff's reinstatement. We thus conclude that the trial court properly struck the defendants' second special defense.
The defendants also claim that the trial court improperly struck their fourth special defense, in which they alleged that the plaintiff is barred from pursuing this matter as a matter of public policy because it engaged in bankruptcy fraud when it entered into the contract here at issue. In their brief to this court, the defendants explained this claim as follows: "The fourth special defense alleged, in clear and detailed terms set forth in twenty-three
"The doctrine [of unclean hands] generally applies [only] to the particular transaction under consideration, for the court will not go outside the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing. The wrong must ... be in regard to the matter in litigation.... Though an obligation be indirectly connected with an illegal transaction, it will not thereby be barred from enforcement, if the plaintiff does not require the aid of the illegal transaction to make out his case.... [S]ee... Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245, 54 S.Ct. 146, 78 L.Ed. 293 (1933) (courts `do not close their doors because of [a] plaintiffs misconduct, whatever its character, that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication'); Orsi v. Orsi, 125 Conn. 66, 70, 3 A.2d 306 (1938) (clean hands doctrine prevents `a party from asserting in court a title where, in order to do so, he must rely upon a transaction tainted with illegality or inequity'). In addition, the conduct alleged to be unclean must have been done directly against the interests of the party seeking to invoke the doctrine, rather than the interests of a third party. Orsi v. Orsi, supra, at 69-70, 3 A.2d 306 (`[t]he wrong must be done to the defendant himself and must be in regard to the matter in litigation'....)" Thompson v. Orcutt, supra, 257 Conn. at 310-11, 777 A.2d 670.
In the twenty-three paragraphs of their fourth special defense, the defendants never mention unclean hands. Rather, they allege that Silver defrauded the Bankruptcy Court and his creditors, and thus that the plaintiff is barred from maintaining this action because "[i]t is contrary to established public policy of the state of Connecticut for its courts to be used in furtherance of a fraud on the administration of a United States Bankruptcy Court by entertaining a Silver lawsuit based on funds Silver washed through a bank account controlled by Silver, in the name of the administratively dissolved entity R.S. Silver & Co., Inc., to hide a commission that Silver and his companies had assigned to Silver's creditors in the Bankruptcy Court." The twenty-three paragraphs of the defendants' fourth special defense contain allegations as to the factual circumstances that resulted in the plaintiff's alleged defrauding of Silver's creditors and the Bankruptcy Court. Other than asserting that Silver used funds that he had previously pledged to his bankruptcy creditors to fund his interest in the participation agreement, the defendants have not alleged any connection between their allegations of unclean hands and the plaintiff's breach of contract claim. There is no allegation as to how its special defense is connected to the allegations of the complaint or how the defendants allegedly were harmed by the plaintiff's alleged bankruptcy fraud. The origin or source from which the plaintiff obtained the funds for the participation agreement does not have any bearing on the plaintiff's breach
Finally, the defendants claim that the trial court's judgment is "ineffective because it was issued 966 days after the completion of trial in violation of ... General Statutes § 51-183b [which requires a court to issue a decision on a matter heard by it within 120 days from the date of the end of the proceeding]." The plaintiff argues that the defendants waived the 120 day rule. We agree with the plaintiff.
The following additional procedural history is relevant to this claim. The trial in this matter was held on various dates in early 2009. The final posttrial brief was filed by the defendants on September 1, 2009, and the trial court declared the trial complete at that time and reserved its decision. Prior to the expiration of the 120 day period within which it was required to issue its decision, the court, through its court officer, asked the parties to extend the due date of its decision.
On June 4, 2010, counsel for the plaintiff sent an e-mail to the court clerk, with copies to all parties, inquiring as to the status of the decision in this matter. On June 9, 2010, the clerk responded to the inquiry, with copies to all parties, reporting that "[t]he court should have a decision in two weeks." Again, on the morning of July 14, 2010, counsel for the plaintiff e-mailed the court clerk, with copies to all parties, asking when the court would be issuing its decision. The court issued its memorandum of decision later that afternoon.
In its July 14, 2010 memorandum of decision, the court found in favor of the plaintiff on its breach of contract claim — as to liability only — and in favor of the defendants on the plaintiff's breach of fiduciary duty claim.
On July 23, 2010, the plaintiff filed a memorandum of law in response to the court's order, advancing its position that further proceedings were necessary on the matters as to which the court had reserved decision. On August 3, 2010, the defendants filed separate memoranda of law in response to the plaintiff's memorandum of law.
On August 13, 2010, the defendants filed a motion to set aside the decision and for a new trial pursuant to § 51-183b, arguing that their December 24, 2009 consent to the extension of the 120 day deadline had been a "limited purpose consent."
The court held a hearing on the defendants' motion on September 8, 2010. At the hearing, the parties presented their respective arguments to the court and agreed to the introduction into evidence of the previously described e-mails that had been attached to the previously filed motions. Because the defendants took issue with the court's statement that they had agreed that the plaintiff's claim for an accounting would be deferred to a later date, the court reserved its ultimate decision on the defendants' motion to give them time to order and examine the transcripts of all of the proceedings prior to trial to ascertain the accuracy of the court's determination in that regard. Despite its determination to reserve judgment on the defendants' motions, the court explained at length why it had taken 197 days after the expiration of the initial 120 day period to render its July 14, 2010 decision, noting its intensive workload and trial schedule while the decision was pending, in addition to the difficulty of the case and the voluminous record that it reviewed multiple times.
On October 6, 2010, the defendants filed a supplemental memorandum of law in support of their motion to set aside the trial court's decision and for a new trial.
On March 23, 2012, the court issued an order rejecting all of the defendants' challenges to the timeliness of its decision. In its order, the court recounted the tortuous procedural history of this case, and found that "both defendants by virtue of [defense counsel]'s e-mail of December 24, 2009, had waived compliance with § 51-183b." The court explained: "Although [the] defendants attempt to differentiate between `extension' and a `waiver,' claiming that they had only agreed to some unspecified limited extension of time, there was no time limitation, or any limitation, on the extension consented to. Under these circumstances, the defendants have given a blanket waiver of the statutory limit, which grants the court an `unfettered' amount of time to decide the case.... Nor is there any authority for the argument made that the court's failure in the July 14, 2010 memorandum of decision to make an award of damages on Count One or adjudicate Count Two of the complaint seeking the remedy of an accounting started a new 120 [day] period commencing with the last filing of the supplemental briefs requested on those issues. There was evidence at trial on the issue of damages, but there was also Count Two asking for an accounting. The parties had agreed at the commencement of trial that Count Two was derivative of the breach of contract claim in Count One, that is, it would only come up if the court found for the plaintiff on Count One. No party briefed Count Two. The court was reluctant to issue an award of damages on July 14, 2010, because of the possibility that there could still be an accounting, which, if granted, would very likely lead to facts or evidence relevant to the issue of damages. Accordingly, the court deferred judgment on Count Two and ordered supplemental memoranda of law `whether or not further proceedings are requested on Count Two and, if so, the scope of such proceedings contemplated by the plaintiff.' The plaintiff was also asked, in view of the judgments entered, to list in its memorandum each item in its `Prayer for Relief' and `Demand for Relief' of the amended complaint, indicating which items of relief it is presently seeking. The court concluded: `After reviewing those memoranda the court will determine what further proceedings, if any, will be held prior to a determination of damages on Count One and the disposition of Count Two.' Under these circumstances, the filing of those supplemental memoranda between July 23 and October 6, 2010, did not start a new 120 day period. They were part of the original proceedings, covered by the waivers of December, 2009.... For the foregoing reasons, [the defendants' motions] are denied." (Citations omitted.) The trial court issued its final memorandum of decision on April 25, 2012, denying the plaintiff's request for an accounting
The defendants claim that the trial court's judgment is "ineffective because it was issued 966 days after the completion of trial, in violation of both ... § 51-183b and minimally acceptable standards of judicial administration, and the defendants did not waive their right to reasonably prompt adjudication." Section 51-183b provides: "Any judge of the Superior Court and any judge trial referee who has the power to render 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." The 120 day period begins to run from the date that the parties file posttrial briefs or other material that the court finds necessary for a well reasoned decision. Cowles v. Cowles, 71 Conn.App. 24, 26, 799 A.2d 1119 (2002).
Generally, the first step in assessing the timeliness of a trial court's decision is to determine the completion date of the trial. The defendants argue that the completion date was the date on which posttrial briefs were filed, September 1, 2009. The plaintiff contends that the completion date was the date on which supplemental posttrial briefs were filed, December 15, 2010. The trial court's April 25, 2012 decision was issued well beyond 120 days from both of those dates. That is immaterial, however, if, as argued by the plaintiff and determined by the trial court, the defendants waived their statutory rights under § 51-183b by consenting unconditionally to the extension of the 120 day deadline in their December, 2009 e-mail to the court.
"[I]n order to reduce delay and its attendant costs, [§ 51-183b] imposes time limits on the power of a trial judge to render judgment in a civil case." Waterman v. United Caribbean, Inc., 215 Conn. 688, 691, 577 A.2d 1047 (1990). The court explained: "[T]he defect in a late judgment is that it implicates the trial court's power to continue to exercise jurisdiction over the parties before it.... [A] late judgment [i]s voidable rather than ... void ... and ... the lateness of a judgment [may] be waived by the conduct or the consent of the parties.... Thus, if both parties simultaneously expressly consent to a late judgment, either before the judgment is issued, or immediately thereafter, the judgment is valid and binding upon both parties, despite its lateness. Express consent, however, is not required. If a late judgment has been rendered and the parties fail to object seasonably, consent may be implied." (Citations omitted.) Id., at 692, 577 A.2d 1047.
"Waiver is the intentional relinquishment of a known right.... Intention to relinquish [must] appear, but acts and conduct inconsistent with intention [to assert a right] are sufficient.... Thus, [w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied.... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.... Whether conduct 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 quotation marks omitted.) Jacobson v. Zoning Board of Appeals, 137 Conn.App. 142, 150, 48 A.3d 125 (2012).
The defendants contend that waiver of the statutory time limit, an intentional relinquishment of a known right, is distinguishable from an extension of that time limit, which is defined as a "lengthening, furthering, developing." Although it cannot reasonably be disputed that those terms carry distinct meanings, when language consenting to an extension is not accompanied by any language of limitation or conditions, the difference between such an extension of a deadline and a waiver disappears. Thus, when an extension is unaccompanied by conditions or limitations, as in this case, it necessarily operates as a waiver.
In concluding that the defendants had waived the 120 day deadline in this case, the trial court explained that "the defendants have given a blanket waiver of the statutory limit, which grants the court an unfettered amount of time to decide the case." In so concluding, the trial court relied upon Matthews v. Nagy Bros. Construction Co., 88 Conn.App. 787, 871 A.2d 1067, cert. denied, 274 Conn. 907, 876 A.2d 1199 (2005). In that quiet title action, which was tried to the court, "both parties unconditionally waived the 120 day time limit for the rendering of a decision." Id., at 789, 871 A.2d 1067. Almost fifteen months after the completion of the trial, the plaintiff filed a "Revocation of Waiver" and a motion for a mistrial, to which the defendant objected. Id. Neither the motion nor the objection was ever ruled on, and the court issued its decision almost two full years after the completion of the trial. Id. On appeal, the plaintiff argued that the judgment was void because she had revoked her waiver of the 120 day deadline by filing her motion for mistrial before the court rendered judgment. Id., at 790, 871 A.2d 1067. This court disagreed with the plaintiff, explaining that "once a waiver of the provisions of a statute is made in a pending case, it is waived for the purposes of all further proceedings in the same action." (Emphasis omitted; internal quotation marks omitted.) Id., at 791, 871 A.2d 1067. In response to the plaintiff's argument that treating the waiver
Although the defendants in this case do not contend that they waived and then revoked their waiver of the 120 day rule, Matthews is nevertheless instructive, in that it concludes that a waiver does permit a trial court "unfettered"; id., at 792, 871 A.2d 1067; discretion in issuing its decision, that there is no implied notion of reasonableness that accompanies a waiver, requiring or even permitting a court to examine newly asserted restrictions on the waiver. That is simply not provided for in the statute.
Here, then, because the defendants consented to an extension of the 120 day time period within which the court was required to issue its decision, and did not set forth any conditions or limitations on the agreed upon extension, the court's determination that they waived the 120 day rule was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
