MSO, LLC v. DeSIMONE

petitioner’s case. See Vinesv. Commissioner Correc App. (court tion, 288, 296-97, 94 Conn. 892 A.2d 312 fopnd there was “sufficient tactical basis” for counsel’s not to call when decision witness counsel determined testimony petitioner), that would not benefit cert. (2006);

denied, 278 Conn. 901 A.2d 1222 Chace App. (court Bronson, 564 A.2d 303 present determined that trial counsel’s decision not to eyewitness testimony “range was within of reasonable “any might trial tactics” when benefit that have inured petitioner testimony [the] to the weighed from would be out the deleterious effect of other unfavorable testimony upon might give”), [the witness] be called (1989). denied, cert. 567 A.2d 832 experts McQuillan Because consulted with two in rele strategic vant fields and made reasonable petitioner’s choices at the trial, criminal we conclude properly petition corpus. denied the for a writ of habeas judgment is affirmed. opinion judges

In this the other concurred. MSO, LLCv. ANTHONY DESIMONE,COEXECUTOR

(ESTATE DESIMONE), OF CHARLESE. ET AL.

(AC 33042) Beach, Alvord, Robinson and Js. January officially April 17,

Argued released Hawkins, Stuart appellant the (plaintiff).

John M. Keyes, Looney, A. Martin was whom appellees defendant et (named al.).

Opinion ALVORD, plaintiff, MSO, LLC, appeals J. The from judgment the trial motion granting Anthony defendants DeSimone and Charles DeSimone, Jr., personal capacities and as coexecutors of the estate of E. DeSimone, proceed- Charles parties ings ordering to arbitration to an arbitration parties’ clause lease agreement.1 On appeal, argues court improperly ordered the to arbi- tration because the court failed to find that the defen- dants waived their to enforce right the arbitration clause after the defendants allegedly engaged in extensive liti- gation prior to seeking enforcement of the clause. We affirm the judgment the trial court.

The following undisputed procedural facts and his- tory are disposition relevant to our the appeal. plaintiff The leased a space commercial for its liquor store, Budget Liquors, Rite from the defendants pursuant to a agreement. lease The lease agreement permitted sublease or assignment only of the lease the written consent of the defendants. The lease agreement also included an arbitration clause. The validity of the lease agreement disputed by is not either party. In original complaint, May 9, its filed 2006, the plaintiff unlawfully claimed that the defendants with- held consent to assign lease, the which withholding deprived plaintiff the opportunity the to enter into “contracts with multiple ready, buyers” and able willing complaint the sale of its business. The sounded contract, implied breach of breach of the covenant of good faith and fair tortious dealing, interference with business relations and violation of the Connecticut Act, Unfair Trade Practices General Statutes 42-110a § seq. et On the defendants filed an August plaintiff against seeking repay The defendants filed a counterclaim the attorney’s Additionally, ment of rent owed to them as well as fees and costs. impleaded Shields, guarantor the defendants Maria the of the lease agreement, purposes clarity, MSO, LLC, as a defendant. For we refer to plaintiff Anthony DeSimone, Jr., as the and DeSimone and Charles as the throughout opinion. defendants this inter

answer, special alleging, defense and counterclaim lawfully assign- to consent the alia, refused plain- to the lease agreement ment subject had the unpaid damaged owed rent and tiff property vacating. before plaintiff its first September 25, 2006, the filed

On complaint. for leave to amend the request original answer, special an amended defenses defendants filed 3, 2006. On the same and a counterclaim on November separate motions for default date, the filed inter- alleging each defendant failure answer against documents, produce requested and failure to rogatories which did not rule. On November on motions court 2006, special defenses the defen- plaintiff filed reply to defen- counterclaim and an amended dants’ special and answer. On December dants’ defenses permission to filed a motion for defendants which Shields, lease, Maria implead guarantor they subsequently filed granted, motion complaint Shields on the same date. against plaintiff requested an exten- February 2, 2007, On with the 26, 2007, comply of time until March to sion discovery which the requests, request defendants’ on the April did not rule. On defendants court against plaintiff filed their first motion for nonsuit the January 26, discov- comply failure to with their requested, alia, inter ery requests. The defendants had years the plaintiff’s the tax returns for the claimed plaintiff objected motion, the loss. The to but the objection. The not on either the motion or the did rule for a nonsuit on defendants filed second motion January plaintiff that had failed 28, 2008, claiming the discovery as to comply requests damages, to with their ordering plaintiff which motion the court the granted, respond the because interrogatories to to defendants’ plaintiff’s the answers were unclear.2 The defendants 27, 2008, filed their third motion for nonsuit on June plaintiff provide that the still had failed to them alleging a precise calculation of and its tax returns damages years supposed loss. The court granted plaintiff the third motion for nonsuit and ordered the respond thirty days. to within July 15, 2008, plaintiff request

On the filed its second complaint. for leave to amend its In third version this plaintiff of its the complaint, allegation the removed that the .withholding assign defendants’ of consent multiple ready, lease interfered with “contracts with buyers” willing able for the sale of its business.

Rather, plaintiffs complaint second amended only plaintiff “attempted to sell the alleged multiple buy- business ... ready, willing and able ... .” objection ers The defendants filed a written plaintiff provided any that still had not alleging attempts documentation of the to sell the busi- alleged prejudiced by ness and were arguing change theory liability. in the The court never ruled on the plaintiffs request complaint second to amend its or on objection. the defendant’s On December defendants filed their fourth motion for nonsuit due to plaintiffs respond continued failure to alleged discovery requests even as the assigned case had been a trial date.3 The objected, responding that the years tax returns for the of the claimed loss were not accompanying The defendants’ counsel sent a letter the defendants’ stating following: for nonsuit to the motion counsel truly discovery form, incomplete “Isent the trial but here. You claim: $75,000.00 Business’, 1) ‘Sale of based on what? $5,212.17 Why pay your liquor 2) we DiChello. do bills? Why your 3) $6,391.08. pay do we Discover Card? 4) $25,000for state taxes? $14,000.00 your 5) car? appreciated.” greatly

Your attention 3 this matter is parties preliminary enpaneled jury. trial had The had filed motions and a did not defense. The court

relevant to the defendants’ objection. for nonsuit or the rule on this fourth motion 2008, the defendants Thereafter, 16, on December stay and a motion proceedings a motion for a filed to to parties to order the requesting the court clause in their to the arbitration arbitration objection. an The plaintiff The filed lease agreement. 2009. The defen- parties on March court heard in the participation litigation that their argued dants compliance lack of was “frustrated” plaintiff discovery process. argued The with the automatically right waived their the defendants had to their involvement enforce the arbitration clause due the motion granted The court lengthy litigation. parties to arbitra- for a and ordered fully enter a contract tion. It stated: “When individuals are, contract and aware of what the elements of the past I in the an and ... have found agreement, enter clause, that the arbitration that if there is an arbitration ... I am consis- control, being and going clause coming decisions I have made since tent with other Haven.” New file a motion to or seek plaintiff reargue

The did not ruling. of the court’s each clarification neutral arbitrator also selected an arbitrator and third Evidentiary before the arbitra- participated. hearings July 19, 2010, August held on 2010. tors were September 16, In of decision dated a memorandum stated: “After the testi- hearing the arbitrators position mony witnesses, a review of the exhibits and ... of coun- papers considering closing argument the arbitrators that the sel, it is the decision of . complaint. of its . . prove allegations has failed to the arbitrators find counterclaim, With to the regard to six months of entitled defendants] [are] $875 In per $5,260.00. month for a total of lost rent at attorney’s entitled to addition, the defendants] [are] to third of the lease.” paragraph fees and costs a to plaintiff filed motion September 20, On that the arbitrators award, stating vacate the arbitration executed them power imperfectly “exceeded their or so subject upon final and definite award mutual, that was not made.” The claim matter submitted to that the arbitrators failed allegation rested on the complaint. its second amended On take into account con- the defendants filed a motion to 7, 2010, October firm arbitration award. In a memorandum of deci- December the court denied sion, dated confirm vacate and the motion to granted motion to plaintiff “provided award, noting the arbitration for its claim that the arbitrators support” no substantive imperfectly. powers or executed them exceeded plaintiff did not file a motion appeal This followed. The par- the court’s decision to order the for articulation of any it file motions proceed ties to to arbitration nor did the arbitration the court’s confirmation of regarding award. improperly ordered plaintiff claims that the court to arbitration because it failed to to enforce right the defendants waived their

to find that engaged the arbitration clause after the defendants enforcement of prior seeking extensive litigation pro- has failed to We conclude that the clause. adequate record for review.

vide this court with an statutory framework. applicable We first set forth the party when a “provides 52-4094 relief General Statutes § any legal equitable provides: or § “If action General Statutes 52-409 by any party agreement proceeding brought to a written relief or other is upon proceeding pending, arbitrate, the court in which the action or proceeding any being in the action or is referable issue involved satisfied any shall, party agreement, to the motion of under the on to arbitration stay proceeding has agreement, until an arbitration arbitration the action making provided person compliance agreement, with the been had ready willing application with the arbi shall be tration.” an arbitration clause desires a contract that contains party, and the other instead dispute,

arbitration of a institutes a civil action to arbitration, proceeding arbitration can party desiring dispute. resolve the Centers, stay of the civil action.” Success then seek a Centers, Inc., 223 Conn. Huntington Learning Inc. v. (1992). 613 A.2d 1320 761, 768, the standard of review. “Our review We next set forth party whether a of the trial court’s determination [of enforce an arbitration right waived the to clause] estop- waiver and principle that, because guided will disturb the pel questions are of fact ... we not clearly they unless are erroneous. findings trial court’s trial court’s conclusions must stand Therefore, . . . they inconsistent with the legally logically unless are application of facts found or unless involve the law material to the case.” (Cita some erroneous rule of Mat omitted; quotation omitted.) tion internal marks Co. v. Rizzo Construction Contracting tie & O’Brien Pool 1083, 17 Co., App. 537, 542-43, 128 Conn. A.3d 906, Conn. 23 A.3d 1247 denied, (2011). cert. 302 present We cannot conclude in the case that the court of waiver. The court’s entire made a on the issue finding parties to arbitration ordering the ruling only a few sentences in which the court does amounts to question the issue of waiver. Waiver is a of not mention appellate fact and is axiomatic that courts do not “[i]t Listenes, Listenes v. 102 Conn. fact-finding.” engage 925 A.2d 1249 After the court App. 642, n.4, (2007). 648 arbitration, plain ordered the “To the extent tiff did not file a motion for articulation. decision is ... it was ambiguous that the court’s [the have it clarified.” appellant’s] responsibility to seek to DeRienzo Mechan marks (Internal quotation omitted.) Associates, Contractors, Contracting ical Inc. Salce v. 998 A.2d 820, cert. Inc., 173, denied, App. 163, 122 Conn. 4 (2010). 298 Conn. A.3d 831

829 responsibility It is well established that it is the present adequate this court with an appellant Orcutt v. 61-10; record for review. See Practice Book § Correction, Commissioner 284 Conn. 937 Disciplinary Villeneuve, Counsel v. A.2d 656 (2007); Ng v. Wal App. 692, 700, 126 Conn. 14 A.3d 358 (2011); Stores, Inc., mart App. 533, A.2d Koch, Forrestt v. App. 99, Conn. (2010); Bank/City Chase Manhattan 996 A.2d 1236 (2010); Co., Trust v. AECO Elevator App. 605, 607, appellant provide When the fails to (1998). 710 A.2d 190 adequate review, presume us with an record for we Orcutt properly. See, trial acted e.g., Correction, supra, Commissioner (“in 739 n.25 appellant of an articulation —which the is absence responsible presume that the trial obtaining —we Candy S & S Tobacco & Co. v. acted properly”); Co., Greater New YorkMutual Ins. 313, a A.2d 1388 the absence of such 321-22, (1992) (“[i]n 617 trial in record, presume court, rendering we proper analysis . . . undertook the of the judgment its v. Zoning Hescock Board law and the facts”); Appeals, 244-45 A.2d 177 App. 239, n.6, 962 the factual or basis of the trial (2009) (“Where legal seek artic unclear, appellant court’s should ruling . . . ulation to Practice Book § [66-5]. [W]hen factual the decision of the trial court does not make the clear, will, of its we in the absence predicates findings assume that the trial court articulation, of a motion for properly.” quotation omitted.]). marks acted [Internal adequate reviewing of an record for In the absence must con- plaintiff, factual claims made we analysis proper that the court undertook the clude parties in directing the law and the facts “This provided agreement. arbitration as in the lease possibilities, at but to review guess court’s role is not to complete developed a factual record claims based on [Otherwise], guess . . . we are left to by the trial court. predicate. factual as to the existence of a speculate pertinent findings, factual ... In the absence omitted; inter inadequate.” (Citation is rendered record Kalican, State omitted.) nal marks quotation denied, cert. App. 955 A.2d Conn. we cannot Accordingly, A.2d 1038 949, 960 (2008). Conn. improperly the court ordered the conclude that to arbitration. is affirmed. judgment concurred. opinion ROBINSON, J., In this I have BEACH, J., respectfully I dissent. dissenting. majority’s description with the disagreement no complaint in the trial court. The was served proceedings Various May, the return of service was filed in 2006. and motions were filed. The arbitration clause pleadings and December, until pleadings was never mentioned Anthony DeSimone and 2008, when the defendants personal capacities DeSimone, Jr., Charles E. DeSimone, as coexecutors of the estate of Charles plain- a motion for a arbitration. The pending filed MSO, LLC, promptly objected to the motion tiff, ability that the defendants had waived the argued jury report- A trial was enforce the arbitration clause. edly Appar- December 2008.1 begin scheduled to on ently postponed, trial was and the court did not 2009, after the motion for until March rule on day which jury had been selected and on the on begin. evidence was to 1 copies postcard provided appendix has in its of several The “jury One such notice indicated that trial was

notices for trial date-certain.” 19, 2008, begin begin August on December on another ordered trial February January 9, 2009, finally 11, 2008, and the last for another for stay, then, the first “firm” trial The motion for was filed well after 2009. just after the second. date and

831 On March 10, 2009, immediately plain- following tiffs on the issue of argument waiver, the court ruled: “When individuals fully enter a contract aware of what the elements of the contract and are, enter an agreement, and ... I have found in past that if clause, there is an arbitration that the arbitration clause control, and ... I am going consistent with being other decisions I made since to New coming have by Haven.” As noted the majority, express there was no question mention of the ruling waiver, there was no finding conclusion on the issue of just waiver. In the context of heard having arguments waiver, about however, unavoidably implied the court always that it enforced clauses, arbitration regardless they circumstances which were In asserted. these circumstances, adequate the record is for review.

The facts are found in record; the court’s ruling, although compact, quite was clear. majority clearly

The states that the erroneous stan dard is applicable to the issue party of whether a has waived enforcement of an arbitration clause. It is indeed true that this court has stated that such is the case; see Mattie & O’Brien Contracting Co. Rizzo Construc v. Co.,

tion Pool 128 Conn. App. 537, 542-43, 17 A.3d 1083, denied, cert. 302 Conn. 906, 23 A.3d 1247 (2011); I, course, that we agree prior are bound our holdings.2 2 authority through relied on can be tracked a number of cases that estoppel” See, e.g., state the standard of review for “waiver and claims. Co., 340, 350,

Hanover Ins. Co. v. Fireman’s Fund Ins. 586 A.2d (1991) (“because estoppel questions waiver and are of fact ... we findings clearly will not disturb the trial court’s unless are erroneous” omitted]). Hanover Ins. Co. cites New York Annual [citation Conference Fisher, proposition (1980), A.2d estoppel questions fact,” actually “waiver and are but that case states an entirely proposition: “Estoppel, waiver, unjust different enrichment and depend upon questions unclean hands are all defenses which of fact that determined, instance, by (Emphasis must be in the first the trial court.” added.) Pandolphe’s Parts, Id. Hanover Ins. Co. cites Auto Inc. v. Manches ter, 217, 221-22, proposition (1980), 181 Conn. 435 A.2d 24 for the that “we did not decide the court difficulty arises because by their conduct had waived the defendants

whether clause; rather, the arbitration ability to enforce by waiver the defense of implicitly held that the court is an arbitration whenever there is immaterial conduct plain- the rationale in a contract. Because clause have may be deemed to i.e., party a objection, tiffs by its con- an arbitration clause enforcement of waived & see, e.g., Mattie clearly recognized; and is duct, was Pool Co. v. Rizzo Construction Contracting O’Brien 542-43; I would reverse Co., supra, App. consideration of the remand the case for judgment objection to the defendants’ of the merits arbitration.3 stay proceedings pending motion dissent. respectfully I therefore they clearly findings are erroneous.” unless will not disturb the trial court’s appeal, Parts, Inc., however, Pandolphe’s “On it states: The court in Auto trial whether the decision of the function of this court to determine is the part clearly where . . involves a two function: erroneous. . This court is challenged, legal we must determine whether of the court are conclusions they support they in legally logically find correct and whether are decision; factual basis of where the set out in the memorandum facts challenged facts set we must determine whether the decision is the court’s by supported are the evidence or memorandum of decision out in the record, pleadings whether, light in the whole in of the evidence and the omitted.) clearly (Citation Id. facts are erroneous.” those by clearly are, course, Findings erroneous fact reviewed of historical fact, only dealing also is not with historical but But when the court standard. plenary exercising judgment, reaching the standard is conclusions or with App. 493, 498-502, Boutilier, abuse of discretion. See State by performed (2012) (discussing “function the trial court that A.3d 282 underlying scope review”). issuing ruling The facts will dictate the of our its clearly appropriately ruling erroneous reviewed on waiver are court’s those facts is one of law and The conclusion reached from standard. plenary subject of a motion review. To the extent that consideration stay judgment, is abuse of discretion. the standard involves the exercise stay proceedings argued moved for a The defendants complying pending had been derelict arbitration because discovery requests. not a that the case can be arbitrated is A so See, discovery requests. e.g., Practice sanction for violation of standard 13-14. § Book

Case Details

Case Name: MSO, LLC v. DeSIMONE

Court Name: Connecticut Appellate Court

Date Published: Apr 17, 2012

Citation: 2012 Conn. App. LEXIS 187

Docket Number: AC 33042

Court Abbreviation: Conn. App. Ct.