WILSON v. HRYNIEWICZ, 51 Conn. App. 627 (1999)

724 A.2d 531

(AC 16643)Appellate Court of Connecticut

SCHALLER, SPEAR and DUPONT, Js.

Syllabus
The plaintiff, who had been awarded damages in a breach of contract action against the defendants, obtained a postjudgment order for sale of the defendant H’s shares of stock in a certain water company. At the sale, the plaintiff was the successful bidder and the trial court rendered judgment ordering H to transfer the shares of stock to the plaintiff. On the defendants’ appeal to this court, held:
1. The trial court’s approval of all aspects of the sale, including the sale price, was supported by the evidence and was not clearly erroneous; implicit in the trial court’s approval of the sale after it had ordered a sale conducted in a commercially reasonable manner was the finding that the sale had been conducted in such a manner, that court properly

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took the plaintiff’s allegations as admitted and properly considered exhibits attached to the motion for sale, and that court was free to reject H’s testimony as to the value of the shares. 2. There was no merit to the defendants’ claim that the trial court should have stayed the order to transfer the stock pending the resolution of a separate proceeding before the department of public utility control; the resolution of the plaintiff’s claim to H’s stock did not require any prior determination by the department. This court having affirmed the trial court’s denial of a petition for a new trial, the defendants’ claim that the order should have been stayed pending the resolution of that appeal was moot.

Argued September 23, 1998,

Officially released February 2, 1999

Procedural History
Action to recover damages for, inter alia, breach of contract, brought to the Superior Court in the judicial district of Hartford-New Britain at New Britain and tried to the jury befor Jackaway, J.; verdict for the plaintiff on the first count and directed verdict for the defendants on the second count; thereafter, the court rendered judgment in accordance with the verdict, from which the defendants appealed and the plaintiff cross appealed to this court, which affirmed the trial court’s judgment; subsequently, the court, Jackaway, J., granted the plaintiff’s motion for an order of sale of certain of the named defendant’s personal property; thereafter, the court, Handy, J., granted the plaintiff’s motion for approval of the sale and rendered judgment ordering the named defendant to transfer the property to the plaintiff, from which the defendants appealed to this court. Affirmed.

John M. Wyzik, with whom was Anthony M. MacLeod, for the appellants (defendants).

Neil F. Murphy, Jr., with whom was P. Jo Anne Burgh, for the appellee (plaintiff).

Opinion
SPEAR, J.

The defendants, Paul Hryniewicz and West Service Corporation, are indebted to the plaintiff as a

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result of a judgment in the original amount of $525,000. The plaintiff obtained a postjudgment order for a public sale of Hryniewicz’ shares of stock in Mountain Laurel Realty, Inc. (Mountain Laurel). The trial court thereafter approved the sale for $200,000 and ordered Hryniewicz to transfer the shares of stock to the plaintiff, who was the successful bidder.[1]

The defendants appeal from the trial court’s order and claim that the trial court improperly approved the sale because (1) the plaintiff offered no evidence to demonstrate that the sale was commercially reasonable and the court failed to find such commercial reasonableness, (2) a proceeding was pending before the department of public utilities (department) in which one of the parties claimed that Mountain Laurel was a publicly regulated water company with attendant restrictions on the transfer of its stock and (3) a petition for a new trial was pending in the trial court and should have been considered. We find the claims to be without merit and affirm the judgment of the trial court.

I
The defendants’ first claim, relating to commercial reasonableness, involves the trial court’s fact-finding function and, therefore, our standard of review is whether the findings are clearly erroneous. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when

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although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Helen B., 50 Conn. App. 818, 829, 719 A.2d 907
(1998).

The defendants present three arguments in support of this claim. First, the defendants assert that the trial court’s failure to make a finding as to commercial reasonableness mandates a new hearing. Second, they contend that although the plaintiff attached exhibits to the motion to approve the sale, no evidence was offered and, therefore, the trial court had nothing on which it could have premised a finding of commercial reasonableness. Third, the defendants argue that Hryniewicz offered the only evidence as to the value of the stock and his testimony that the stock was worth over $2,000,000 demonstrated that the sale price of $200,000 was commercially unreasonable. We address and reject these arguments in turn.

A
We note that the trial court made no express finding as to whether the sale was commercially reasonable. The motion for the order of sale requested that Hryniewicz’ shares of stock in Mountain Laurel “be sold at a public sale in a commercially reasonable manner pursuant to § 52-356a of the Connecticut General Statutes.” (Emphasis added.)[2] In granting the motion, the

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trial court set the date, time and place of the sale, required that the sale be advertised in the Hartford Courant fourteen and seven days prior to the sale, provided that the sheriff follow the notice requirements of General Statutes § 52-356a (2) and (3), set the deposit at $50,000 and ordered the sheriff to make a return of his actions with respect to the sale and to bring the proceeds of the sale into court.

Implicit in the trial court’s granting of the motion is an order that the sale be conducted in a commercially reasonable manner as the requirement of commercial reasonableness was an integral part of the order sought by the motion. See Fiaschetti v. Nash Engineering Co., 47 Conn. App. 443, 448, 706 A.2d 476, cert. denied, 244 Conn. 906, 714 A.2d 1 (1998) (where motion unopposed, it can be assumed that in granting motion, court granted each request of moving party). The trial court’s subsequent approval of the sale implies that the trial court found both that the sale was conducted as ordered and that the sale was in fact commercially reasonable. Therefore, the defendants are not entitled to relief based on their claim that the trial court failed to find that

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the sale was conducted in a commercially reasonable manner.

B
The defendants claim that even if a finding of commercial reasonableness is implicit in the trial court’s order, the plaintiff presented no evidence on which such a finding could be based. He asserts that, pursuant to this court’s holding i Streicher v. Resch, 20 Conn. App. 714, 717, 570 A.2d 230 (1990), the attachments to the plaintiff’s motion for approval of the sale could not be considered because they were not introduced into evidence. The attachments consisted of (1) a copy of the order of sale, (2) an affidavit of publication of notice as ordered by the court, (3) copies of the subject stock certificates and (4) the sheriff’s return that describes all of the details of the sale.

We disagree with the defendants’ view that Streicher holds that such attachments can never be considered unless introduced into evidence. We said in Streicher. “Exhibits attached to a complaint can be considered by the factfinder if the defendant, through his answer or other responsive pleading, admits to the factual allegations contained therein so that the pleading constitutes a judicial admission. . . . Any allegation that is denied by the defendant, however, must be proven by the plaintiff.” (Citations omitted.) Id., 716.

Although the motion here is not a complaint, we discern no reason why the rationale of Streicher should not apply. The defendants withdrew their objection to the motion for the order of sale and agreed to the terms as ordered by the trial court. By withdrawing the objection and agreeing to the terms of the sale, the defendants conceded that the sale as ordered was commercially reasonable. The defendants did not object to the motion for approval of the sale except as to the reasonableness of the sale price. Hryniewicz testified briefly as to his

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opinion of the value of the stock at the hearing. The defendants’ primary claim at that hearing was that the trial court should not rule pending the outcome of a proceeding before the department. They never contested the validity of the attachments or challenged the conduct of the sale in any way. Their claim as to commercial reasonableness was first raised during oral argument to the trial court, admittedly as an afterthought. We conclude that absent any objection to the motion for approval of the sale except as to the sale price, the trial court properly took the allegations as admitted and properly considered the attached exhibits.

C
The defendants’ last claim with respect to this issue is that the lack of any evidence from the plaintiff as to the value, coupled with Hryniewicz’ testimony that the stock was worth $2 million makes the $200,000 sale price commercially unreasonable.[3] As we have previously discussed, the trial court properly considered the exhibits that were attached to the motion on all aspects of the sale, including the reasonableness of the price. Even though Hryniewicz owned the stock, the court was not required to accept his opinion of its value. It is well established that “[t]he trier of fact may accept or reject the testimony of any witness. State v. Cooley, 24 Conn. App. 489, 490, 589 A.2d 377, cert. denied, 219 Conn. 905, 593 A.2d 131
(1991). The trier can, as well, decide what all, none, or some — of a witness’ testimony to accept or reject. 5 Connecticut Practice, D. Borden L. Orland, Criminal Jury Instructions (1986) § 32. State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 [cert. denied, 519 U.S. 1044, 117 S.Ct. 617,

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136 L.Ed.2d 541] (1996).” (Internal quotation marks omitted.)State v. Knight, 50 Conn. App. 109, 113, 717 A.2d 274 (1998). Upon review of all of the evidence, we conclude that the trial court’s approval of all aspects of the sale, including the sale price, was supported by the evidence and was not clearly erroneous.

II
The defendants next claim that the trial court improperly refused to stay the order to transfer the stock even though an unrelated proceeding was pending before the department in which one of the parties claimed that Mountain Laurel was a publicly regulated water company with attendant restrictions on the transfer of its stock. Specifically, the defendants argue that if it is determined in that unrelated proceeding that Mountain Laurel is a “public service company” under General Statutes §16-1 (4)[4] or a “water company” under General Statutes §16-1 (10),[5] the department would

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have jurisdiction over it and any sale of Mountain Laurel’s assets or stock would then require department approval pursuant to General Statutes §§ 16-19e (a)[6] and 16-262o.[7] We conclude that this claim is without merit.

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The defendants invoke the doctrine of primary jurisdiction to support their claim. “Primary jurisdiction is a doctrine used by courts to allocate initial decision making responsibility between agencies and courts where such overlaps and potential for conflicts exist.” (Internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn. App. 324, 349, 695 A.2d 1072
(1997), citing 2 K. Davis R. Pierce, Administrative Law Treatise (3d Ed. 1994) § 14.1, p. 271.

“It has been said that [the primary jurisdiction] doctrine `applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.’ United States v. Western Pacific R. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), citing General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S.Ct. 325, 84 L.Ed. 361 (1940). . . . Stated another way, `[t]he threshold issue in determining whether [the] doctrine [of primary jurisdiction] applies is whether both the court and an agency have jurisdiction over the same issue.’ Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 59 (2d Cir. 1994).” (Citations omitted; emphasis in original.) Second Injury Fund v. Lupachino, supra, 45 Conn. App. 348-49.

Here, the defendants argue that the trial court should have suspended its decision in this case until the distinct proceeding before the department was resolved. The defendants further assert that if, in that proceeding, it is eventually determined that Mountain Laurel is a publicly regulated water company, the Superior Court would be bound by that determination. While this assertion is true, to the present time Mountain Laurel has

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never been determined to be a water company. Because Mountain Laurel is not considered a water company as defined by § 16-1
(10), jurisdiction over Mountain Laurel’s transactions lies with the Superior Court. Even if the department eventually determines that Mountain Laurel is a water company, Hryniewicz offers no analysis as to how his stock could be considered an asset of Mountain Laurel or why it would make a difference whether he or the plaintiff owns the stock. The resolution of the plaintiff’s claim to Hryniewicz’ stock in the Superior Court does not require any prior determination by the department. The trial court, therefore, had no valid reason to delay its decision making pending the outcome of the proceeding before the department and did not improperly refuse to stay the order to transfer the stock.

III
The defendants’ final claim is that the trial court improperly rendered an order for the relief requested in view of the fact that the defendants had a petition for new trial pending, and the court knew that that petition was pending and had not been tried. This issue is moot in view of our affirmance of the denial of the defendants’ petition for a new trial in Hryniewicz v. Wilson, 51 Conn. App. 440, A.2d (1999).[8]

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The judgment is affirmed.

In this opinion the other judges concurred.