Wilson v. Hryniewicz

Decision Date02 February 1999
Docket Number(AC 16643)
PartiesWILLIAM H. WILSON v. PAUL HRYNIEWICZ ET AL.
CourtConnecticut Court of Appeals

Schaller, Spear and Dupont, Js. 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 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 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 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 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 in Stretcher v. Resch, 20 Conn. App. 714, 717, 570 A.2d 230 (1990), the attachments to the plaintiffs 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 sheriffs return that describes all of the details of the sale.

We disagree with the defendants' view that Stretcher holds that such attachments can never be considered unless introduced into evidence. We said in Stretcher: "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 Stretcher 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 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, [490-91], 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) § 3.2. 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, 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 (a) (4)4 or a "water company" under General Statutes § 16-1 (a) (10),5 the department would 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.

The defendants invoke the doctrine of primary jurisdiction to support their claim. "Primary jurisdiction is a doctrine used by courts to allocate initial decisionmaking 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...

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