SEVEN OAKS ENTERPRISES, L.P., ET AL. v. SHERRY DEVITO ET AL.
(AC 38325)
Lavine, Alvord and Beach, Js.
Argued January 29—officially released October 23, 2018
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The plaintiffs, E Co., a limited partnership, and M Co., brought this action for, inter alia, breach of contract against the defendant D in connection with a promissory note and a management contract arising from the purchase of a limited liability company, L Co., by D from E Co. Payment for the purchase consisted of a certain sum in cash and the remaining $1.325 million by a promissory note. D executed the note both as manager of L Co. and individually. The purchase agreement was executed by D individually and by E Co., and C, who was the president and managing member of M Co., signed the purchase agreement on behalf of M Co., which in turn acted in its capacity of E Co.’s general partner. D and C also personally executed a management contract, which was attached to and expressly incorporated into the purchase agreement, and which included provisions that C was not to be removed as comanager so long as any debt was owed to E Co., and that C was to be compensated for his services as comanager. D subsequently unilaterally executed amendments to the operating agreement of L Co., which removed C as comanager and provided no compensation to C. D did not pay any of the $1.325 million owed on the note or anything to C for compensation under the management contract, and the plaintiffs subsequently brought claims for, inter alia, breach of contract regarding D’s failure to make payments on the note, breach of the management contract and breach of the implied covenant of good faith and fair dealing. Thereafter, E Co. assigned to M Co. any and all claims, rights, and title to any and all defaulted loans and damages related to the sale of L Co. During a trial before a jury, the plaintiffs introduced a copy of the note into evidence, rather than the original. The jury returned a verdict in favor of the plaintiffs and awarded them $1.325 million in damages. The trial court denied D’s motions to set aside the verdict and for judgment notwithstanding the verdict, and rendered judgment in accordance with the verdict, from which D appealed to this court. On appeal, D claimed, inter alia, that the plaintiffs did not have the right to enforce the note because M Co. could not satisfy the requirements of the statutory (
- The trial court erred in denying the motions to set aside the verdict and for judgment notwithstanding the verdict as to the plaintiffs’ claim that D breached the contract by failing to make payments on the note, as the plaintiffs were not entitled to enforce the note at the time of trial:
- E Co. lacked the ability to enforce the note after it assigned the note to M Co. approximately one year after the present action was commenced; although E Co., which was a party to both the note and the purchase agreement, was clearly the only party entitled to enforce the note at the time the present action was commenced and prior to the transfer of the note, E Co.’s assignment of the note to M Co. extinguished all rights E Co. had to enforce the note.
- M Co., which was neither a holder nor a nonholder in possession, did not have the power to enforce the note because it could not satisfy the requirements of
§ 42a-3-309 , as it was not in possession of the note when it was lost: the plain language of that statute compelled the conclusion that the only person who can enforce a note is the person in possession of that note when it was lost, the plaintiffs’ public policy arguments were unavailing in light of the clear language of§ 42a-3-309 , and the common law of assignments did not displace the clear provisions of§ 42a-3-309 because that statute was directly applicable to the situation underlying the prеsent case and the legislature did not act to revise that statute, which was clear and unambiguous; moreover, in the present case, there was no evidence presented from which the jury reasonably could have inferred that the note was lost while in M Co.’s possession,and the jury found, instead, that the note was lost while in the possession of E Co., which then assigned the note to M Co.
- D could not prevail on her claim that the trial court abused its discretion in denying her motion for judgment notwithstanding the verdict and in refusing to set aside the verdict in favor of the plaintiffs as to their claims of breach regarding the management contract, which was based on her assertion that neither plaintiff had a right to enforce the management contract: E Co. was the only party that could enforce the management contract, which was signed by C only on the plaintiffs’ side and was expressly incorporated into the purchase agreement, to which E Co., but not M Co., was a party, as the note, which was part of the overall purchase trаnsaction, was issued to E Co. but not to M Co., and the assignment, which was signed by C only, did not have the effect of transferring to M Co. the ability to enforce the terms of the management contract because the management contract stated that no assignment could be effected without the prior written consent of D; moreover, D having abandoned her claim in the trial court that there was insufficient evidence to support the claims of damages regarding the management contract, her claim on appeal that the alleged breaches did not cause any loss to the plaintiffs was not reviewable, and because the jury found in favor of the plaintiffs on more than one count but awarded only a total amount of $1.325 million in undifferentiated damages, and no special interrogatories were submitted showing which road the jury went down, this court presumed that the jury found damages of $1.325 million, whether based on breach of the note or breach of the management contract, and the verdict had to stand.
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 Stamford-Norwalk, where the named defendant filed a counterclaim; thereafter, the court, Hon. Taggart D. Adams, judge trial referee, denied the motion to dismiss filed by the defendant Robert DePaolo; subsequently, the court, Hon. Taggart D. Adams, judge trial referee, denied the defendants’ motion to reargue; thereafter, the action was withdrawn as to the defendant Robert DePaolo; subsequently, the matter was tried to the jury before Lee, J.; verdict for the plaintiffs on the complaint and the counterclaim; thereafter, the court, Lee, J., denied the named defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict, and rendered judgment in accordance with the verdict, from which the named defendant appealed to this court. Reversed in part; judgment directed.
Ridgely Whitmore Brown, with whom, on the brief, was Benjamin Gershberg, for the appellant (named defendant).
Ryan O’Neill, with whom, on the brief, was Mark Sherman, for the appellees (plaintiffs).
BEACH, J. The defendant Sherri DeVito1 appeals from the judgment of the trial court rendered, after a jury trial, in favor of the plaintiffs, Seven Oaks Enterprises, L.P. (SOE), and Seven Oaks Management Corporation (SOM), on two counts alleging breach of contract and one count alleging breach of the implied covenant of good faith and fair dealing. The jury awarded $1.325 million in damages to the plaintiffs. On appeal, the defendant claims that the trial court (1) abused its discretion in denying the defendant’s motion to set aside the verdict and her motion for judgment notwithstanding the verdict because the plaintiffs did not produce the original note at trial, there was insufficient evidence that the note was lost, and the plaintiffs did not have the right to enforce the note; (2) incorrectly instructed the jury regarding SOM’s right to enforce the note; (3) lacked subject matter jurisdiction over SOE because it did not have the legal capacity to commence and continue the action; and (4) abused its discretion in denying her motion for judgment notwithstanding the verdict and in refusing to set aside the verdict because neither plaintiff had a right to enforce the management contract, the alleged breaches did not cause any loss to the plaintiffs, and the jury could not determine with reаsonable certainty the amount of damages sustained. We affirm the judgment as to SOE’s claim regarding breach of the management contract and reverse as to SOE’s claim of breach of contract regarding the note and all of SOM’s claims.
The following facts, which the jury reasonably could have found or are undisputed, and procedural history are pertinent to our decision. This dispute concerns a note and a management contract arising from the purchase of a limited liability company by the defendant. Prior to the events in issue, Murray Chodos had purchased a residential property located at 516 Round Hill Road, Greenwich, in 1999. A limited liability company, 516, LLC, had been created to own the property, and SOE was the sole owner of 516, LLC.
SOM was the general partner of SOE and Chodos was the president and managing member of SOM. Chodos met the defendant and her husband in late 2005 or early 2006. Chodos helped the defendant and her husband obtain life insurance policies and referred the defendant to an attorney, who could draft trusts for their children. In October, 2006, Chodos agreed to sell 516, LLC, to the defendant. The defendant purchased 516, LLC, from SOE for $4 million. Payment consisted of $2.675 million in cash by wire transfer and the remaining $1.325 million by a promissory note (note), which listed property located at 516 Round Hill Road as collateral. The purchase agreement was executed by the defendant individually and by SOE. Chodos signed the purchase agreement on behalf of SOM, which in turn acted in its
In addition, the purchase agreement provided that until the note was paid, Chodos was to be the comanager of 516, LLC, pursuant to a management contract, which was attached to and expressly incorporated into the purchase agreement. The defendant and Chodos personally executed the management contract, which included provisions that Chodos was not to be removed as comanager so long as any dеbt was owed to SOE, that Chodos was to be compensated for his services as comanager, and that he would have all powers available to the manager under the operating agreement of 516, LLC.
On April 4, 2008, the defendant, unknown to Chodos or to the plaintiffs, unilaterally executed an amendment to the operating agreement of 516, LLC. The amendment removed Chodos as comanager, provided Chodos with no voting rights, and provided no compensation to Chodos. On May 1, 2008, the defendant executed another amendment to the operating agreement. This amendment recognized a mortgage of $365,000 in favor of Allied International Fund, Inc. (Allied), and placed the Allied security interest above SOE’s note in priority.
The defendant did not pay any of the $1.325 million owed on the note or anything to Chodos for compensation under the management contract. In April, 2010, the plaintiffs initiated this action against the defendant. On December 31, 2011, SOE executed a “Bill of Sale and Assignment” (assignment), which assigned to SOM “any and all claims, rights and title to any and all defaulted loans and damages relating to the sale of 516, LLC.” The plaintiffs alleged four counts: (1) breach of contract for the defendant’s breach of the management contract; (2) breach of the implied covenant of good faith and fair dealing for the defendant’s bad faith breaches of the management contract; (3) breach of contract regarding the defendant’s failure to make payments on the note; and (4) reckless and wanton misconduct by the defendant. The defendant raised several special defenses and counterclaims. There are no claims on appeal regarding the special defenses and counterclaims.
The trial commenced on January 23, 2015. The plaintiffs withdrew their claim of reckless and wanton misconduct before the jury was charged. On February 6, 2015, the jury returned a verdict in favor of the plaintiffs on all three remaining counts, as well as the defendant’s special defenses and counterclaims. It awarded the plaintiffs $1.325 million in damages. The verdict did not attribute dаmages to any specific count or counts.2 At the same time, the jury provided answers to a set of written jury interrogatories. On February 23, 2015, the defendant filed a motion for judgment notwithstanding
On appeal, the defendant claims that the trial court abused its discretion in denying her motion to set aside the verdict and her motion for judgment notwithstanding the verdict because the plaintiffs did not produce the original note at trial, there was insufficient evidence that the note was lost, and the plaintiffs did not have the right to enforce the note; that the court incorrectly instructed the jury regarding SOM’s right to enforce the note; that the court lacked subject matter jurisdiction over SOE because SOE did not have the legal capacity to commence and continue the action; and that the court abused its discretion in denying her motion for judgment notwithstanding the verdict and in refusing to set aside the verdict because neither plaintiff had a right to enforce the management contract, the alleged breaches did not cause any loss to the plaintiffs, and the jury could not have determined with reasonable certainty the amount of damages required. We consider the claims in a different order for the purpose of clarity, and, in light of our conclusions, it is not necessary to address several of them.
We begin with our standard of review. “The proper appellate standard of review when considering the action of a trial court in granting or denying a motion to set aside a verdict is the abuse of discretion standard. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done. . . . [T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as [an added] juror . . . but, rather, to decidе whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. . . . In reviewing the action of the trial court in denying [or granting a motion] . . . to set aside the verdict, our primary concern is to determine whether the court abused its discretion . . . .” (Internal quotation marks omitted.) Rendahl v. Peluso, 173 Conn. App. 66, 94–95, 162 A.3d 1 (2017).
“The standards for appellate review of a directed verdict are well settled. Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court’s decision [to deny the defendant’s motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven
I
We first consider various issues regarding the third count of the operative complaint, which alleged nonpayment of the note. The jury indicated in its answers to interrogatories that it had found that SOE and the defendant originally had been the parties to the note, that SOE possessed the note when it was lost, that the note nonetheless had effectively been assigned to SOM, and that the defendant failed to make payments on the note. A note, of course, is a form of contract, and principles of contract construction are used to interpret its language. Federal National Mortgage Assn. v. Bridgeport Portfolio, LLC, 150 Conn. App. 610, 620, 92 A.3d 966, cert. denied, 312 Conn. 926, 95 A.3d 523 (2014). “The standard of review for contraсt interpretation is well established. Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [when] there is definitive contract language, the determination of what the parties intended by their . . . commitments is a question of law [over which our review is plenary].” (Internal quotation marks omitted.) Meeker v. Mahon, 167 Conn. App. 627, 632, 143 A.3d 1193 (2016). “In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction. . . . We accord the language employed in the contract a rational construction based on its common, natural and ordinary meaning and usage as applied to the subject matter of the contract.” (Internal quotation marks omitted.) Welch v. Stonybrook Gardens Cooperative, Inc., 158 Conn. App. 185, 197, 118 A.3d 675, cert. denied, 318 Conn. 905, 122 A.3d 634 (2015). “Furthermore, [i]n giving meaning to the language of a contract, we presume that the parties did not intend to create an absurd result.” (Internal quotаtion marks omitted.) South End Plaza Assn., Inc. v. Cote, 52 Conn. App. 374, 378, 727 A.2d 231 (1999).
A
Prior to the transfer of the note, which occurred after this action was initiated, SOE was clearly entitled to enforce the note, as the parties to the purchase agreement, which referenced the note, were the defen-
Approximately one year after the action was commenced, SOE transferred the note to SOM. The next question is whether SOE, SOM, or both entities retained the power to enforce the note. The assignment provided in pertinent part that SOE “does hereby grant, convey, sell, assign, and transfer over to [SOM] all [SOE’s] right, title, and interest in and to . . . any and all claims, rights and title to any and all defaulted loans and damages relating to the sale of 516, LLC.” The note was referenced in the purchase agreement, and the note itself referenced 516, LLC. Where no interest in the assigned prоperty is retained or the assignment is otherwise qualified, the assignment extinguishes all of the assignor’s rights in the assigned matter. Bozelko v. Milici, 139 Conn. App. 536, 539, 57 A.3d 762 (2012), cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013). The first paragraph of the note specified that the defendant “acknowledges that [SOE] may transfer this [n]ote . . . .” The assignment clearly stated that SOE was assigning its “claims, rights and title to any and all defaulted loans and damages relating to the sale of 516, LLC.” SOE’s assignment of the note to SOM extinguished all rights SOE had to enforce the note. Therefore, from December 31, 2011, onward, SOE lacked the ability to enforce the note.6
B
The jury reported in its answers to interrogatories that SOE transferred the note to SOM, and apparently concluded that SOM was entitled to enforce the note. The trial court determined, in its memorandum of decision dated August 21, 2015, on the defendant’s motion for judgment notwithstanding the verdict, that “[t]here was sufficient evidence for the jury to have found that, in accord with
The plaintiffs argue that the verdict was proper, in light of the jury’s findings, and supported by the evidence, because the note was lost while in the possession of SOE, and that SOE assigned all rights under the note to SOM.8 The defendant claims that SOM did not have the power to enforce the note because it could not satisfy the requirements of
Our analysis of the UCC involves questions of statutory interpretation over which our review is plenary. W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704, 709, 817 A.2d 91 (2003). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, [we first] consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Mayer v. Historic District Commission, 325 Conn. 765, 774–75, 160 A.3d 333 (2017).
Article 3 of the UCC governs negotiable instruments, including notes. See
In a different cоntext, our Supreme Court considered the language of
In Dennis Joslin Co., LLC v. Robinson Broadcasting Corp., 977 F. Supp. 491, 495 (D.D.C. 1997) (Dennis Joslin), the District Court held that the District of Columbia’s version of UCC § 3-309 precluded the plaintiff from recovering on a note it did not possess at the time the note was lost. The court noted that both UCC § 3-309 (1990) and its predecessor, the original UCC § 3-804 (1952), “are intended to protect defendants from being obligated to two persons or entities with conflicting claims—the original holder who lost the instrument and a subsequent holder who innocently acquired the lost note.” Id., 494. After attempting to discern the intent behind the revision, the court nonetheless concluded “that the languagе of [UCC § 3-309 (1990)] clearly states that the person suing on a lost note is entitled to enforce the note only if that person was in possession of the instrument when loss of possession occurred.” (Emphasis in original; internal quotation marks omitted.) Id., 494–95. The court acknowledged that although “there does not appear to be a logical reason to distinguish between a person who was in possession at the time of the loss and one who later comes into possession of the rights to the note, the plain language of the provision mandates that the plaintiff suing on the note must meet two tests, not just one: it must have been both in possession of the note when it was lost and entitled to enforce the note when it was lost.” (Emphasis in original.) Id., 495.
In 2002, The American Law Institute and the National Conference of Commissioners on Uniform State Laws, the drafters of the model UCC, revised § 3-30912 with the intent of rejecting the result in Dennis Joslin. Uniform Commercial Code § 3-309 (2003) official comment 2. The District of Columbia adopted this revision in 2013. D.C. Code § 28:3-309 (2013). Connecticut has not adopted this revision. Had it done so prior to the events in issue, SOM might well have been entitled to enforсe the note. Because the legislature has not acted, we look to other nonbinding authorities regarding the application of UCC § 3-309 (1990).
Some courts have interpreted the 1990 revision of UCC § 3-309 in the same manner as Dennis Joslin. See In re Harborhouse of Gloucester, LLC, 505 B.R. 365, 369–72 (Bankr. D. Mass.), aff‘d, 523 B.R. 749 (B.A.P. 1st Cir. 2014); In re Kemp, 440 B.R. 624, 632–33 (Bankr. D.N.J. 2010); McKay v. Capital Resources Co., Ltd., 327 Ark. 737, 740–41, 940 S.W.2d 869 (1997); Zullo v. HMC Assets, LLC, Docket No. 16 MISC 000413 (RBF), 2017 WL 2720319, *9 (Mass. Land June 22, 2017); Emerald Portfolio, LLC v. Outer Banks/Kinnakeet Associates, LLC, 790 S.E.2d 721, 725 (N.C. App. 2016); U.S. Bank, N.A. v. Jones, 71 N.E.3d 1233, 1239–40 (Ohio App. 2016).14 Other courts have rejected that interpretation, supplementing the statute with the common law of assignments. See In re Caddo Parish-Villas South, Ltd., 250 F.3d 300, 301–302 (5th Cir. 2001) (applying Louisiana law); see also Southeast Investments, Inc. v. Clade, Docket No. 3:97-CV-1799-L, 1999 WL 476865, *3 (N.D. Tex. July 7, 1999), aff‘d, Docket No. 99-11085, 2000 WL 423350 (5th Cir. April 3, 2000) (decision without published opinion, 212 F.3d 595 [5th Cir. 2000]); National Loan Investors, L.P. v. Joymar Associates, 767 So. 2d 549, 551 (Fla. App. 2000); NAB Asset Venture II, L.P. v. Lenertz, Inc., Docket No. C4-97-2181, 1998 WL 422207, *3 (Minn. App. July 28, 1998); YYY Corp. v. Gazda, 145 N.H. 53, 60–61, 761 A.2d 395 (2000); Bobby D. Associates v. DiMarcantonio, 751 A.2d 673, 675–76 (Pa. Super. 2000); JP Morgan Chase Bank, N.A. v. Stehrenberger, Docket No. 70295-5-I, 2014 WL 1711765, *3–4 (Wn. App. April 28, 2014) (decision without published opinion, 180 Wn. App. 1047), cert. denied, 181 Wn. 2d 1017, 337 P.3d 325 (2014).15
Our Superior Court’s decisions regarding an assignee’s entitlement to enforce a lost note under
The plain language of the statutes persuades us that Dennis Joslin and its progeny properly interpret and apply UCC § 3-309 (1990), especially in light of our Supreme Court’s holding in New England Savings Bank. As previously stated, the application of
There are, of course, dueling policies. The defendant maintains that if only the person who lost the note is entitled to enforce the note, the debtor is better protected against the prospect of paying twice. See
The plaintiffs also argue that assignability is favored by the common law, and that common law may be used to supplement the UCC. See, e.g., Wykeham Rise, LLC v. Federer, 305 Conn. 448, 471, 52 A.3d 702 (2012) (“[a]ssignability of rights is clearly favored with respect to contracts generally“). Connecticut courts also recog-
We also note that although the UCC has been revised by The American Law Institute and the National Conference of Commissioners on Uniform State Laws, and the revision has been available for the legislature to adopt for sixteen years, our legislature has thus far not acted on the proposed revision.16 This court is “not permitted to supply statutory language that the legislature may have chosen to omit.” (Internal quotation marks omitted.) Mayer v. Historic District Commission, supra, 325 Conn. 776. “[C]ourts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them. . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” (Internal quotation marks omitted.) Tuxis Ohr’s Fuel, Inc. v. Administrator, Unemployment Compensation Act, 309 Conn. 412, 435, 72 A.3d 13 (2013). “If the legislature believes we have mistaken its silence, it can easily overrule us.” Maio v. New Haven, 326 Conn. 708, 722, 167 A.3d 338 (2017). Thus, the common law of assignments does not supplement
We now apply
II
We next consider the issues regarding the management contract. The defendant claims that the trial court abused its discretion in denying her motion for judgment notwithstanding the verdict and in refusing to set aside the verdict in favor of SOE and SOM as to their claims of breach regarding the management contract. The defendant argues that there was no evidence that the breach of the management contract caused any loss, and that neither the breach of the management contract nor the breach of the implied covenant of good faith and fair dealing, if any, resulted in damages that could be fairly ascertained.
A preliminary question is whether either SOM or SOE were parties to the management contract. The management contract was signed only by Chodos on the plaintiffs’ side; the management contract was expressly incorporated into the purchase agreement, to which SOE was a party. In regard to the purchase agreement, SOM is not listed as a seller either in thе opening paragraph or in the list of parties to be noticed in § 12 of the agreement. SOM appears in the purchase agreement only on the signature page, where Chodos, as the duly authorized president of SOM, signed for SOM, which was SOE’s general partner. Because partnerships are entities distinct from their partners;
We must then consider the effect, if any, of the assignment on the right to enforce the management contract.19 The assignment purported to assign “any and all claims, rights and title to any and all defaulted loans and damages relating to the sale of 516, LLC“; but the management contract itself stated that no assignment could be effected “without the prior written consent of the [m]anager and the [c]o-[m]anager.” Because the assignment was signed by Chodos alone—as agent for SOM on behalf of SOE—and not by the defendant, the “manager” of 516, LLC, the assignment document was ineffective to transfer SOE’s rights under the management contract to SOM. Therefore, the assignment did not have the effect of trаnsferring to SOM the ability to enforce the terms of the management contract. Only SOE, then, retained any right to enforce the management contract.20
The defendant’s claim that the trial court abused its discretion in denying the motion to set aside the verdict on this ground is, however, unreviewable. The defendant claimed in her motion to set aside the verdict that there was insufficient evidence to support the claims for damages arising from breach of the management contract, but the motion itself was, in its entirety, a list of issues. The relevant claim, in its entirety, was the following: “5. There is insufficient evidence to support the verdict on the claim that [the] defendant, Sherri DeVito, breached any agreement not to change the operating agreement and, also, there was insufficient evidence to support any damage claim arising from the breach of contract claim, including lack of standing.” (Emphasis added.) Her corresponding brief to the trial court did not address the claim of insufficient evidence to support damagеs at all. In its memorandum of decision, the trial court acknowledged that “[t]he defendant originally listed nine grounds in her motion to set aside the verdict but has only briefed four . . . . Accordingly, the court addresses those four grounds.” The defendant did not request the trial court to rule further on the issue. See Practice Book § 60-5.
The trial court’s memorandum of decision did not address the defendant’s claim because she did not brief the issue. On appeal, the defendant has not challenged the trial court’s apparent finding of abandonment, but claims an abuse of discretion for failure to set aside the verdict for insufficient evidence. “Both our Supreme Court and this court have stated the principle that, when a party abandons a claim or argument before the trial court, that party waives the right to appellate review
We briefly address the award of $1.325 million in damages. Neither party requested that the jury award damages as to the individual counts, and the jury simply awarded undifferentiated damages in the amount of $1.325 million. In such circumstances, “an appellate court will presume that the jury found every issue in favor of the prevailing party . . . and decline further appellate review. . . . Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed.” (Emphasis in original; internal quotation marks omitted.) Brown v. Bridgeport Police Dept., 155 Conn. App. 61, 69, 107 A.3d 1013 (2015). In the circumstances of this case, because the jury found in favor of the plaintiffs on more than one count but awarded only a total amount of $1.325 million in damages, we presume that the jury found damages of $1.325 million, whether based on breach of the note or breach of the management contract. Accordingly, the verdict must stand.
The judgment is reversed as to SOE’s claim of breach of contract regarding the note and all of SOM’s claims, and the case is remanded with direction to render judgment in favor of the defendant on those claims; the judgment is affirmed as to SOE’s claim regarding breach of the management contract.
In this opinion the other judges concurred.
Notes
“The Court: [Plaintiffs’ counsel], why is [SOE] the plaintiff if it has assigned its interest?
“[The Plaintiffs’ Counsel]: Well, initially, when . . . this case was started in 2010, they were in existence.
“The Court: I see. . . . They’re just in the caption, I believe.
“[The Plaintiffs’ Counsel]: That’s right. They’re in the caption. It remained that way; and again . . . at the end of the day . . . once we approve the assignment and all these claims have been assigned, technically, it will be [SOM] that will have the right to recoup any judgment found in our favor.”
The court then deferred considering the issue of whether SOE should remain as a plaintiff, at least regarding its ability to enforce the note after the assignment, but then never specifically addressed the issue.“(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made,
Additionally, the jury was instructed that, under
We note that the plaintiffs did not allege in their complaint that SOE had assigned the management contract to SOM; rather, the complaint seems to allege that SOE and SOM were both parties to the management contract. “It is axiomatic that the parties are bound by their pleadings.” (Internal quotation marks omitted.) Harborside Connecticut Ltd. Partnership v. Witte, 170 Conn. App. 26, 34, 154 A.3d 1082 (2016). Likewise, the jury was never charged with deciding whether the management contract was assigned, as opposed to the note; the issue was not a subject of the jury interrogatories. Finally, although Chodos testified that the assignment was meant to assign “everything” to SOM, Chodos’ list of “everything” included “the binder issued by the Secretary of State of Delaware, the seal, any books and records that we would have had . . . .” Chodos was later asked if the note was intended to be included in the assignment. He replied, “Everything pursuant to the sale of 516, LLC, was intended to be transferred to the successor entity as we closed the former entity formally.” The language of the assignment itself is not so broad: the management contract was not necessarily part of a claim, right, or title ”to any and all defaulted loans and damages . . . .” (Emphasis added.)
Chodos’ answer was in reply to a question about the intent to transfer the note, which the plaintiffs alleged had been assigned. The plaintiffs have never claimed, even on appeal, that the management contract was assigned.