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DOCKET NO.: AAN-CV18-6031256-S : SUPERIOR COURT
DEFOREST W. SMITH and
DEFOREST INDUSTRIES, INC. : J.D. OF ANSONIA / MILFORD
V. : AT MILFORD
H. PEARCE REAL ESTATE :
COMPANY, INC. : OCTOBER 26, 2023
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DOCKET NO.: AAN-CV21-6041913-S : SUPERIOR COURT
THE MILFORD BANK : J.D. OF ANSONIA / MILFORD
V. : AT MILFORD
DEFOREST INDUSTRIES, INC., :
and H. PEARCE REAL ESTATE :
COMPANY, INC. : OCTOBER 26, 2023
MOTION TO REARGUE (P.B. § 11-11)
The undersigned respectfully moves for reargument and reversal of the following:
1. The decision and judgment for H. Pearce Real Estate Company (“Pearce”)
on its special defense of set-off, which was entered by the court (Grogins,
J.) on or about October 10, 2023; and
2. Those portions of decision and judgment on count 3 of the operative
complaint and in the interpleader action, which was entered by the court
(Grogins, J.) on or about October 10, 2023, that are based on a finding
that the date following the address for lease renewals in Schedule 1.1(a)
of Exhibit 1 was a limiting date.
ORAL ARGUMENT REQUESTED
TESTIMONY NOT REQUIRED
FILED PURSUANT TO P.B. § 11-11
The decision and judgment referenced above can be found at dkt. entry #s 144.00 and
145.00 in AAN-CV18-6031256-S, and dkt entry #s 129.00 and 130.00 in AAN-CV21-
6041913-S).
1. Reargument and reversal of the judgment for Pearce on its claimed $80,000 set-
off.
The specific grounds for reargument and reversal of the judgment for $80,000 on
the claimed set-off by Pearce is found on p. 12 of the Memorandum of Decision:
The court importantly notes that the date listed on the summary form for the sale of 126
Boston Post Road is July 26, 2017. The offer date listed on the Disbursement Form
prepared by Smith is July 25, 2017. The closing date listed on the summary sheet for the
sale of this property is December 29, 2017. Exhibit A, p. 1. The closing date that listed on
the Disbursement form for the sale of this property is September 30, 2017. Exhibit A, p.
3. The court finds that the sale of this property was not completed after the effective date
of the Agreement and prior to July 1, 2017. The court also finds that this transaction was
not pending as of July 17, 2017.
DeForest Smith was the only witness at trial. He never testified that he prepared the
Disbursement Form identifying the offer date as July 25, 2017. To the left of the
handwritten date on the Commercial Division Disbursement form of 7/25/2017, p. 3 of
Exhibit A (“Ex. A”) (upper lefthand corner), are the words “Posting Date” not “offer date.”
The court never received any evidence explaining what the “Posting Date” means,
much less whether the term “Posting Date” was synonymous with the term “offer date.”
Therefore, it was error to conclude, as the court wrote, that: “The offer date listed on the
Disbursement Form prepared by Smith is July 25, 2017.”
Additionally, the first two pages of the typewritten forms in Exhibit A, which have
the number “151700034” (emphasis added) printed in the upper right hand corner, list
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July 26, 2017 as the “Offer Date” and the “Firm Date”. Yet, the typewritten forms at
pages 6 and 7 of Exhibit A, which have the number “151700063” (emphasis added)
printed in the upper right hand corner, identify the “Offer Date” and the “Firm Date” as
being a day earlier, on July 25, 2017 not July 26, 2017, for the same property. No
evidence was introduced at trial explaining or even attempting to explain how the “Offer
Date” and the “Firm Date” could be both July 25, 2017 (Ex. A, pp. 6-7), and July 26,
2017 (Ex. A, pp. 1-2), for the same property. In fact, there is no evidence in the record
explaining what the terms “Offer Date” and “Firm Date” mean. Similarly, there is no
evidence establishing who made those entries, what information the individual relied
upon in making those entries, or whether those dates satisfy the definition in the Asset
Purchase Agreement (“APA”), Exhibit 1, Article II, § 2.1 of a transaction that was
pending as of July 17, 2017.
Mr. Smith testified that a pending transaction for purposes of the APA, Exhibit 1,
Article II, § 2.1, is: “any pending transactions … was defined as anything under contract,
under letter of intent, lease that had not commenced, those were to be treated the same
way with the 20 percent override.” Trial Transcript (“Tr.”). p. 30:8-12. Pearce, who has
the burden of proof on the issue, never introduced a letter of intent or contract
concerning the property at 126 Boston Post Road, Milford, CT. Additionally, there was
no evidence before the court showing that the entries of July 25, 2017, and July 26,
2017 for “Offer Date” and “Firm Date” were entered in pages 1, 2, 6, and 7 of Exhibit A
by someone in the ordinary course of performing their duties, and that in performing
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those duties in the ordinary couse they entered those dates from a letter of intent or the
purchase and sale agreement for the property at 126 Boston Post Road, Milford, CT.
Accordingly, reargument and reversal of the court’s conclusion that $80,000
should be awarded to the defendant on its special defense is warranted.
2. Reargument and reversal of those portions of decision and judgment on count 3
of the operative complaint and in the interpleader action that are based on a
finding that the date listed following the address for lease renewals in Schedule
1.1(a) was a limiting date.
As noted by the court in its Memorandum of Decision, pp. 7-8:
"[T]he question of contract interpretation is· a question of the parties' intent. ...
Ordinarily, that is a question of fact. ... If, however, the language of the contract is clear
and unambiguous, the courts determination of what the parties intended in using such
language is a conclusion of law." (Citations omitted.) CAS Construction Co. v. East
Hartford, 82 Conn. App. 543, 552, 845 A.2d 466 (2004). "A contract is ambiguous if the
intent of the parties is not clear and certain from the language of the contract itself."
(Internal quotation marks omitted.) Johnson v. Vita Built, LLC, 217 Conn. App. 71, 84,
287 A.3d 197 (2022). "Moreover, in construing contracts, [the courts] give effect to all
the language included therein, as the law of contract interpretation ... militates against
interpreting a contract in a way that renders a provision superfluous." (Internal quotation
marks omitted.) Id., 85.
The specific grounds for reargument and reversal of the judgment for Pearce on Count
3 of the Plaintiff’s Complaint and in the Interpleader Action is found on p. 18 of the
Memorandum of Decision:
In interpreting this Agreement and the excluded asset schedule, the court finds that the date
listed next to each lease renewal on the excluded asset schedule is the expected renewal date
for that lease. This date identifies those lease renewals, which the Plaintiffs intended to be
excluded from the Agreement. The court further finds that if a lease renewal listed on the
excluded asset schedule closed within a reasonable period of time of the date listed, it should
be considered an excluded asset. However, if any claimed lease renewal did not close within
a reasonable period of time of the date listed on the excluded asset schedule, it should not be
considered as an excluded asset. Therefore, no additional commission would be due to the
Plaintiff for such lease renewal.
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Reargument and reversal is warranted because this is an erroneous conclusion.
Schedule 1.1 states in relevant part:
Notwithstanding the foregoing, the following assets are Excluded Assets:
…
- Accounts receivable of the Business, notes receivable, shareholder
loans, or similar obligations. Accounts receivable shall include, without
limitation, commissions due to Seller on lease renewals for leases
executed prior to the Closing Date.
…
- All client listing agreements for which letters of intent or purchase
agreements have been signed prior to Closing, and client listing
agreements for which commissions have been earned but not yet paid as of
the Closing date, as listed on Schedule l.l(a) attached(''Excluded
Agreements").
Ex. 1, pp. 17-18. From the plain language of the APA, excluded assets are the lease
renewals in Schedule 1.1(a) and lease renewals for leases executed prior to the Closing
Date by virtue of their being defined as Accounts receivable. The court’s decision
interprets this definition of “accounts receivable” as being limited by the lease renewals
identified in Schedule 1.1(a), thereby materially changing the definition of the term
“accounts receivable.”
Additionally, while the undersigned agree that the date following the address of
lease renewals identified in Schedule 1.1(a) is the date of the expected renewal, there
was no evidence at trial or language in the contract that can support the conclusion this
expected lease renewal date was also a limiting date as advocated by Pearce and
employed by the court. Consequently, the court’s interpretation of the date following the
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address of lease renewals in Schedule 1.1(a) as a limiting date has no legal or factual
predicate.
For these reasons, reargument and reversal of those portions of decision and
judgment on count 3 of the operative complaint and in the interpleader action that are
based on a finding that the date listed following the address for lease renewals in
Schedule 1.1(a) was a limiting date is warranted.
DeFOREST W. SMITH and DEFOREST
INDUSTRIES, INC.
BY: /s/ John-Henry M. Steele (#404743)
DEY SMITH STEELE, LLC (#412130)
9 Depot Street, 2nd Floor
Milford, CT 06460
Tel.: (203) 882-3351
Fax: (203) 882-3359
Email: jhs@deysmith.com
CERTIFICATION
I certify that a copy of the above was or will immediately be mailed or delivered
electronically or non-electronically on Thursday, October 26, 2023, to all counsel and
self-represented parties of record, and that written consent for electronic delivery was
received from all counsel and self-represented parties of record who were or will
immediately be electronically served.
Peter T. Fay, Esq.
Neubert, Pepe & Monteith, P.C.
195 Church Street, 13th Floor
New Haven, CT 06510
Tel.: 203.821.2000
Fax: 203.821.2009
E-mail: PFay@npmlaw.com
/s/ John-Henry M. Steele (#404743)
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DOCKET NO.: AAN-CV18-6031256-S : SUPERIOR COURT DEFOREST W. SMITH and DEFOREST INDUSTRIES, INC. : J.D. OF ANSONIA / MILFORD V. : AT MILFORD H. PEARCE REAL ESTATE : COMPANY, INC. : OCTOBER 26, 2023 --------------------------------------------------------------------------------------------------------------------- DOCKET NO.: AAN-CV21-6041913-S : SUPERIOR COURT THE MILFORD BANK : J.D. OF ANSONIA / MILFORD V. : AT MILFORD DEFOREST INDUSTRIES, INC., : and H. PEARCE REAL ESTATE : COMPANY, INC. : OCTOBER 26, 2023 MOTION TO REARGUE (P.B. § 11-11) The undersigned respectfully moves for reargument and reversal of the following: 1. The decision and judgment for H. Pearce Real Estate Company (“Pearce”) on its special defense of set-off, which was entered by the court (Grogins, J.) on or about October 10, 2023; and 2. Those portions of decision and judgment on count 3 of the operative complaint and in the interpleader action, which was entered by the court (Grogins, J.) on or about October 10, 2023, that are based on a finding that the date following the address for lease renewals in Schedule 1.1(a) of Exhibit 1 was a limiting date. ORAL ARGUMENT REQUESTED TESTIMONY NOT REQUIRED FILED PURSUANT TO P.B. § 11-11 The decision and judgment referenced above can be found at dkt. entry #s 144.00 and 145.00 in AAN-CV18-6031256-S, and dkt entry #s 129.00 and 130.00 in AAN-CV21- 6041913-S). 1. Reargument and reversal of the judgment for Pearce on its claimed $80,000 set- off. The specific grounds for reargument and reversal of the judgment for $80,000 on the claimed set-off by Pearce is found on p. 12 of the Memorandum of Decision: The court importantly notes that the date listed on the summary form for the sale of 126 Boston Post Road is July 26, 2017. The offer date listed on the Disbursement Form prepared by Smith is July 25, 2017. The closing date listed on the summary sheet for the sale of this property is December 29, 2017. Exhibit A, p. 1. The closing date that listed on the Disbursement form for the sale of this property is September 30, 2017. Exhibit A, p. 3. The court finds that the sale of this property was not completed after the effective date of the Agreement and prior to July 1, 2017. The court also finds that this transaction was not pending as of July 17, 2017. DeForest Smith was the only witness at trial. He never testified that he prepared the Disbursement Form identifying the offer date as July 25, 2017. To the left of the handwritten date on the Commercial Division Disbursement form of 7/25/2017, p. 3 of Exhibit A (“Ex. A”) (upper lefthand corner), are the words “Posting Date” not “offer date.” The court never received any evidence explaining what the “Posting Date” means, much less whether the term “Posting Date” was synonymous with the term “offer date.” Therefore, it was error to conclude, as the court wrote, that: “The offer date listed on the Disbursement Form prepared by Smith is July 25, 2017.” Additionally, the first two pages of the typewritten forms in Exhibit A, which have the number “151700034” (emphasis added) printed in the upper right hand corner, list 2 July 26, 2017 as the “Offer Date” and the “Firm Date”. Yet, the typewritten forms at pages 6 and 7 of Exhibit A, which have the number “151700063” (emphasis added) printed in the upper right hand corner, identify the “Offer Date” and the “Firm Date” as being a day earlier, on July 25, 2017 not July 26, 2017, for the same property. No evidence was introduced at trial explaining or even attempting to explain how the “Offer Date” and the “Firm Date” could be both July 25, 2017 (Ex. A, pp. 6-7), and July 26, 2017 (Ex. A, pp. 1-2), for the same property. In fact, there is no evidence in the record explaining what the terms “Offer Date” and “Firm Date” mean. Similarly, there is no evidence establishing who made those entries, what information the individual relied upon in making those entries, or whether those dates satisfy the definition in the Asset Purchase Agreement (“APA”), Exhibit 1, Article II, § 2.1 of a transaction that was pending as of July 17, 2017. Mr. Smith testified that a pending transaction for purposes of the APA, Exhibit 1, Article II, § 2.1, is: “any pending transactions … was defined as anything under contract, under letter of intent, lease that had not commenced, those were to be treated the same way with the 20 percent override.” Trial Transcript (“Tr.”). p. 30:8-12. Pearce, who has the burden of proof on the issue, never introduced a letter of intent or contract concerning the property at 126 Boston Post Road, Milford, CT. Additionally, there was no evidence before the court showing that the entries of July 25, 2017, and July 26, 2017 for “Offer Date” and “Firm Date” were entered in pages 1, 2, 6, and 7 of Exhibit A by someone in the ordinary course of performing their duties, and that in performing 3 those duties in the ordinary couse they entered those dates from a letter of intent or the purchase and sale agreement for the property at 126 Boston Post Road, Milford, CT. Accordingly, reargument and reversal of the court’s conclusion that $80,000 should be awarded to the defendant on its special defense is warranted. 2. Reargument and reversal of those portions of decision and judgment on count 3 of the operative complaint and in the interpleader action that are based on a finding that the date listed following the address for lease renewals in Schedule 1.1(a) was a limiting date. As noted by the court in its Memorandum of Decision, pp. 7-8: "[T]he question of contract interpretation is· a question of the parties' intent. ... Ordinarily, that is a question of fact. ... If, however, the language of the contract is clear and unambiguous, the courts determination of what the parties intended in using such language is a conclusion of law." (Citations omitted.) CAS Construction Co. v. East Hartford, 82 Conn. App. 543, 552, 845 A.2d 466 (2004). "A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself." (Internal quotation marks omitted.) Johnson v. Vita Built, LLC, 217 Conn. App. 71, 84, 287 A.3d 197 (2022). "Moreover, in construing contracts, [the courts] give effect to all the language included therein, as the law of contract interpretation ... militates against interpreting a contract in a way that renders a provision superfluous." (Internal quotation marks omitted.) Id., 85. The specific grounds for reargument and reversal of the judgment for Pearce on Count 3 of the Plaintiff’s Complaint and in the Interpleader Action is found on p. 18 of the Memorandum of Decision: In interpreting this Agreement and the excluded asset schedule, the court finds that the date listed next to each lease renewal on the excluded asset schedule is the expected renewal date for that lease. This date identifies those lease renewals, which the Plaintiffs intended to be excluded from the Agreement. The court further finds that if a lease renewal listed on the excluded asset schedule closed within a reasonable period of time of the date listed, it should be considered an excluded asset. However, if any claimed lease renewal did not close within a reasonable period of time of the date listed on the excluded asset schedule, it should not be considered as an excluded asset. Therefore, no additional commission would be due to the Plaintiff for such lease renewal. 4 Reargument and reversal is warranted because this is an erroneous conclusion. Schedule 1.1 states in relevant part: Notwithstanding the foregoing, the following assets are Excluded Assets: … - Accounts receivable of the Business, notes receivable, shareholder loans, or similar obligations. Accounts receivable shall include, without limitation, commissions due to Seller on lease renewals for leases executed prior to the Closing Date. … - All client listing agreements for which letters of intent or purchase agreements have been signed prior to Closing, and client listing agreements for which commissions have been earned but not yet paid as of the Closing date, as listed on Schedule l.l(a) attached(''Excluded Agreements"). Ex. 1, pp. 17-18. From the plain language of the APA, excluded assets are the lease renewals in Schedule 1.1(a) and lease renewals for leases executed prior to the Closing Date by virtue of their being defined as Accounts receivable. The court’s decision interprets this definition of “accounts receivable” as being limited by the lease renewals identified in Schedule 1.1(a), thereby materially changing the definition of the term “accounts receivable.” Additionally, while the undersigned agree that the date following the address of lease renewals identified in Schedule 1.1(a) is the date of the expected renewal, there was no evidence at trial or language in the contract that can support the conclusion this expected lease renewal date was also a limiting date as advocated by Pearce and employed by the court. Consequently, the court’s interpretation of the date following the 5 address of lease renewals in Schedule 1.1(a) as a limiting date has no legal or factual predicate. For these reasons, reargument and reversal of those portions of decision and judgment on count 3 of the operative complaint and in the interpleader action that are based on a finding that the date listed following the address for lease renewals in Schedule 1.1(a) was a limiting date is warranted. DeFOREST W. SMITH and DEFOREST INDUSTRIES, INC. BY: /s/ John-Henry M. Steele (#404743) DEY SMITH STEELE, LLC (#412130) 9 Depot Street, 2nd Floor Milford, CT 06460 Tel.: (203) 882-3351 Fax: (203) 882-3359 Email: jhs@deysmith.com CERTIFICATION I certify that a copy of the above was or will immediately be mailed or delivered electronically or non-electronically on Thursday, October 26, 2023, to all counsel and self-represented parties of record, and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served. Peter T. Fay, Esq. Neubert, Pepe & Monteith, P.C. 195 Church Street, 13th Floor New Haven, CT 06510 Tel.: 203.821.2000 Fax: 203.821.2009 E-mail: PFay@npmlaw.com /s/ John-Henry M. Steele (#404743) 6