AMERICAN FIRST FEDERAL, INC.
SHELDON M. GORDON ET AL.
January 5, 2017
from Superior Court, judicial district of Stamford-Norwalk,
Complex Litigation Docket, Genuario, J.
Patrick A. Linsey, with whom was Aaron A. Romney, for the
appellants in AC 38217, appellees in AC 38365 (defendants).
Jonathan P. Vuotto, pro hac vice, with whom were William N.
Wright, and, on the brief, John F. Carberry, David T. Martin,
Jeffrey B. Gardner, and Laura J. Petrie, for the appellee in
AC 38217, appellant in AC 38365 (plaintiff).
Lavine, Keller and Pellegrino, Js.
consolidated appeals arise from an action brought by the
plaintiff, American First Federal, Inc., against the
defendants, Sheldon M. Gordon and Gordon Group Investments,
LLC (GGI), to collect on a commercial loan. Following a trial
to the court, judgment was rendered in favor of the
plaintiff. In AC 38217, the defendants claim that the court
erred by concluding that the plaintiff's predecessor in
interest assigned its rights under the loan to the plaintiff.
In AC 38365, the plaintiff claims that the court erred in its
determination of attorney's fees and calculation of
postjudgment interest. We disagree with the parties'
claims. Accordingly, we affirm the judgment of the court.
following facts, as found by the court, undisputed evidence,
and procedural history are relevant to the parties'
claims. On or about September 18, 2006, Gordon and Sovereign
Bank (Sovereign), which is not a party to these appeals,
executed a business loan agreement. As part of the agreement,
Gordon executed a promissory note (2006 note) in favor of
Sovereign in the principal amount of $3, 000, 000 with a
maturity date of December 1, 2006. GGI, through Gordon as its
manager, guaranteed repayment of the loan. On or about
November 21, 2008, Gordon executed a second promissory note
(2008 note), amending and restating the terms of the 2006
note. The 2008 note evidenced the same debt as the 2006 note
and had a maturity date of June 30, 2009.
Gordon, and GGI subsequently executed two agreements relating
to the loan. The first (2009 modification agreement) extended
the maturity date of the 2008 note to December 31, 2009.
Under the second agreement (2010 forbearance agreement),
Sovereign promised to forbear from bringing an action to
collect on the loan until September 30, 2010.
about September 22, 2010, Sovereign and the plaintiff
executed an asset sale agreement in which Sovereign agreed to
sell, and the plaintiff agreed to purchase, Sovereign's
interest in the loan on a subsequent closing date. Prior to the
execution of the agreement, however, Sovereign lost the
original 2006 and 2008 notes. Those originals were never
recovered. Nevertheless, copies of all operative loan
documents, with the exception of the 2008 note, were
transferred to the plaintiff on or about the closing
and an agent for the plaintiff each informed Gordon via
letter that Sovereign had transferred the loan to the
plaintiff. Gordon made several loan payments to the
plaintiff; however, he failed to make any after February 9,
plaintiff commenced this action on May 27, 2011. In its
operative complaint, dated December 12, 2014, the plaintiff
alleged, inter alia, that Gordon was in breach of the
business loan agreement and the 2008 note, or, in the
alternative, the business loan agreement and the 2006 note,
for unpaid principal, interest, and fees totaling $4, 238,
179.72. The plaintiff also sought attorney's fees and
prejudgment and postjudgment interest under General Statutes
§ 37-3a. Trial commenced on January 13, 2015, and
concluded the following day.
of a memorandum of decision dated May 26, 2015, the court
rendered judgment for the plaintiff. The court concluded that
Sovereign had assigned the loan to the plaintiff and,
accordingly, that the plaintiff was entitled to collect on
the debt. The court awarded damages of $4, 325,
778.80, consisting of unpaid principal, interest, late
charges, and other costs. The court reserved judgment as to
attorney's fees and postjudgment interest to allow for a
hearing on those matters. After that hearing, and by way of a
memorandum of decision dated August 25, 2015, the court
awarded the plaintiff attorney's fees and costs of $483,
451.86. The court further concluded that the plaintiff was
entitled to postjudgment interest on the outstanding
principal balance of the loan, which would continue to accrue
until the loan was paid off. These appeals followed.
Additional facts will be provided as necessary.
defendants claim that the court erred by concluding that
Sovereign assigned the loan to the plaintiff. We disagree.
following facts, as found by the court, and undisputed
evidence are pertinent to this claim. As previously noted,
Sovereign and the plaintiff executed an asset sale agreement
in which Sovereign agreed to sell, and the plaintiff agreed
to purchase, the Gordon debt on a subsequent closing date.
The asset sale agreement provided that, on the closing date,
the plaintiff would pay Sovereign the purchase price, and
Sovereign would provide the plaintiff with any notes or lost
note affidavits related to the Gordon loan, as well as a
‘‘Bill of Sale and Assignment'' (bill of
sale) ‘‘selling, assigning, transferring and
conveying to the [plaintiff] all rights, title and interests
of [Sovereign]'' in the loan. No bill of sale was produced
their posttrial brief, the defendants argued that the
plaintiff was not an assignee of the loan, or was otherwise
estopped from asserting that it was an assignee. Their
argument was threefold. First, the defendants argued that the
asset sale agreement did not, by itself, effectuate an
assignment of the Gordon loan because the agreement merely
bound Sovereign to assign the loan to the plaintiff in
the future, i.e., on the closing date. See 3 Restatement
(Second), Contracts § 330 (1), p. 49 (1981)
(‘‘[a] contract to make a future assignment of a
right . . . is not an assignment''). Thus, the
defendants argued, the plaintiff was not an assignee of the
loan, and accordingly was not entitled to collect under it.
and in the alternative to the first argument, the defendants
argued that, to the extent that the plaintiff asserted that
evidence other than the asset sale agreement
demonstrated that an assignment occurred, the plaintiff was
estopped from advancing such argument because the
plaintiff's operative complaint specifically alleged that
‘‘[b]y an Asset Sale Agreement
. . . Sovereign sold, assigned, transferred and conveyed all
of its rights, title and interests'' in the debt to
the plaintiff. (Emphasis added.) See A. V. Giordano Co.
v. American Diamond Exchange, Inc., 31
Conn.App. 163, 166, 623 A.2d 1048 (1993) (‘‘[o]ur
law provides that a plaintiff's recovery is limited to
the allegations made in its complaint'').
and in the alternative to the second argument, the defendants
argued that, even if evidence other than the asset
sale agreement could be considered in determining whether an
assignment occurred, such evidence was insufficient to show
an assignment in the absence of the bill of sale.
court concluded that Sovereign did in fact effectuate an
assignment of the loan to the plaintiff. The court first
observed that, ‘‘[g]enerally, to constitute an
assignment there must be a purpose to assign or transfer the
whole or a part of some particular thing, debt, or chose in
action, and the subject matter of the assignment must be
described with such particularity as to render it capable of
identification.'' (Internal quotation marks omitted.)
The court concluded that the asset sale agreement
‘‘contains a clear purpose to assign or transfer
the whole of the Gordon debt and documentation.'' The
court also determined that the asset sale agreement, as well
as other documents relating to the loan, identified the
Gordon debt ‘‘with sufficient
particularity.'' The court concluded that, despite
the fact that the plaintiff did not produce the bill of sale
at trial, there was ample other evidence demonstrating that
the debt and related documents were ‘‘actually
conveyed'' to the plaintiff. Such actual conveyance
was evidenced, the court found, by the following:
‘‘First, the Asset Sale Agreement clearly
establishes the intent to convey the documents and the debt
in the broadest possible sense and identifies the documents
and debt with sufficient particularity to render it capable
of identification. Second, copies of all of the operative
documents except the 2008 note were transferred to the
plaintiff at or about the time of closing. Third, the Asset
Sale Agreement calls for lost note affidavits in the event of
lost notes and a lost note affidavit was executed by
representatives of Sovereign and delivered to the plaintiff
with regard to the 2006 note at or about the time of closing.
Fourth, an allonge relating to the 2006 note was executed at
or about the time of closing. Fifth, while the 2008 note was
not discovered by the plaintiff or Sovereign until well after
the closing, upon its discovery an allonge was executed by
Sovereign and a lost note affidavit covering the 2008 note
was executed by Sovereign, both of which were delivered to
the plaintiff. Sixth, shortly after the closing Sovereign
sent a letter to . . . Gordon stating that the loan had been
transferred to the plaintiff. Similarly, representatives of
the plaintiff sent a letter to the defendants utilizing the
same account number as indicated in the Sovereign letter
notifying the defendants that the loan had been transferred
to the plaintiff. Seventh, Gordon made payments to the
plaintiff and forwarded financial statements to the plaintiff
subsequent to these letters, indicating his concurrence that
the debt had been transferred to the plaintiff. Eighth and
finally, the testimony of the various representatives of
Sovereign and the plaintiff are all consistent with their
intent and understanding that the documents and debt had been
conveyed to Sovereign.''
appeal, the defendants make essentially the same three
arguments previously described. We do not find ...