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*********************************************** 
MICHAEL KONOVER ET AL. v. MICHAEL

KOLAKOWSKI ET AL.

(AC 40173)

(AC 40434)

Lavine, Sheldon and Bishop, Js.

Syllabus

The plaintiffs sought to recover damages from the defendants for, inter alia,

breach of contract. The plaintiffs, K and four companies, had entered into

an agreement with the defendants, a group of individuals and companies,

including B Co., to purchase K’s stock in B Co., of which K was the

sole director and shareholder. At the time of the agreement, B Co. was

a defendant in two groups of pending lawsuits, which led the parties

to include indemnification provisions in the purchase agreement regarding the existing litigation involving B Co. Specifically, K promised to

indemnify B Co. and the defendants for damages resulting from any

judgment rendered against B Co. and the defendants in the existing

litigation. In return, K was given the exclusive right to manage the

existing litigation, and the defendants were required to cooperate with

K in the defense of the existing litigation and in any counterclaims or

new actions brought by K in connection with the existing litigation.

Thereafter, K demanded reimbursement from the defendants for legal

fees incurred during the course of defending the existing litigation.

Subsequently, the plaintiffs brought this action, alleging, inter alia,

breach of contract for B Co.’s refusal to reimburse K for legal fees

incurred during the existing litigation. Thereafter, the defendants filed a

counterclaim, alleging, inter alia, that K’s mismanagement of the existing

litigation constituted a breach of contract and a breach of fiduciary

duty owed to them, and that they were not obligated, pursuant to the

agreement, to reimburse K for expenses incurred in conjunction with

the existing litigation. Subsequently, the trial court granted, in part, the

defendants’ motion for summary judgment as to all claims pertaining

to breach of contract for the defendants’ failure to pay attorney’s fees

in the existing litigation, ruling that the agreement clearly and unambiguously did not require B. Co. to reimburse K for legal fees incurred during

the course of the existing litigation. From the judgment rendered in part

thereon, the plaintiffs appealed to this court. Held:

1. The trial court properly rendered summary judgment in the defendants’

favor, as the language of the agreement clearly and unambiguously did

not obligate the defendants to reimburse K for legal fees incurred during

the existing litigation; the plain language of the agreement required K

to pay for legal fees incurred during the existing litigation and the

defendants to pay for their own legal fees should further claims be

brought against B Co., and it was devoid of any language that imposed

an affirmative obligation on the defendants to indemnify K for any legal

fees and, instead, placed an affirmative obligation on K to indemnify

the defendants for any judgment rendered for the named plaintiffs in

the existing litigation, and in the absence of any express language in

the agreement, this court would not impose such an obligation on

the defendants.

2. The plaintiffs could not prevail on their claim that even if the agreement

was clear and unambiguous, this court should look beyond the four

corners of the agreement to consider the meaning that the parties

ascribed to the indemnification provisions of the agreement by their

course of conduct, which was based on their claim that the defendants

should have been bound by certain judicial admissions in their pleadings

and prevented from now making a contrary argument: where, as here,

the contract language is clear and unambiguous, the intent of the parties

is a question of law, subject to plenary review, the contract is to be

given effect according to its terms and courts must look only to the

four corners of the contract to discern the parties’ intent, and because

judicial admissions are knowing concessions of fact, which inform a

trier of fact but in no way bind the court in its independent, plenary

and judicial determination of applicable law, and the contract language
here was clear and unambiguous, the intent of the parties in utilizing

the language in question was not binding on the court’s legal determination of the import of the contract language, and this court declined to

give deference to the erroneous construction of the agreement initially

advanced by the defendants in their pleadings; moreover, even if there

may be a circumstance in which extrinsic evidence may be referenced

to glean the intent of the parties in their utilization of plain language,

under the facts of this case, this court declined to stray from well

reasoned jurisprudence that plain language should be accorded its

plain meaning.

Argued September 25—officially released December 18, 2018

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 Hartford, where the

named defendant et al. filed a counterclaim; thereafter,

the trial court, Moukawsher, J., granted in part the

motion for summary judgment filed by the named defendant et al. and rendered judgment in part thereon for

the named defendant et al., from which the plaintiff

Konover Development Corporation et al., appealed to

this court; subsequently, following the granting of permission by this court, the named plaintiff filed a separate appeal with this court, which consolidated the

appeals. Affirmed.

Frank J. Silvestri, Jr., with whom were Kristen G.

Rossetti and Jeffrey R. Babbin, for the appellants

(plaintiffs).

Richard J. Buturla, with whom was Ryan P. Driscoll,

for the appellees (defendants).
Opinion

BISHOP, J. This action arises from the indemnification provisions in a stock purchase and sales agreement

(agreement) between the plaintiff Michael Konover1 and

the defendants Michael Kolakowski, Simon Etzel, and

Eric Brown (the buyers)2for the buyers’ purchase of

Konover’s stock in the KBE Building Corporation

(KBE).3 The plaintiffs appeal from the trial court’s rendering of partial summary judgment in favor of the

defendants. On appeal, the plaintiffs claim that the trial

court erroneously ruled that the parties’ agreement does

not obligate the defendants to reimburse Konover for

legal fees incurred while litigating certain legal actions

that had been pending against Konover and KBE at the

time the agreement was executed. In the alternative,

the plaintiffs claim that, even if the language of the

agreement does not require the defendants to reimburse

Konover for any legal fees, the trial court should have

considered admissions in the defendants’ pleadings and

other extrinsic evidence, which evinced an understanding between the parties that the defendants were

responsible for paying their own legal fees incurred in

conjunction with the referenced litigation. We affirm

the judgment of the trial court.

The following undisputed facts and procedural history are relevant to the resolution of this appeal.

Konover was the sole director and shareholder of KBE.

The buyers formed KBE Holdings, Inc., to acquire all

of Konover’s KBE stock. On March 30, 2007, the buyers

and Konover executed the agreement at issue, which

set forth the terms for the stock purchase and sale of

all of Konover’s stock.

At the time the agreement was executed, KBE was

a defendant in two separate groups of civil actions,

which the agreement referred to as the ‘‘Existing Litigation.’’4 One group of actions, denominated the Archambault litigation, arose from personal injuries suffered

by several construction workers, employed by a subcontractor of KBE, while building a BJ’s Wholesale Club

in Willimantic.5 The second group of actions, referred

to as the Wells Fargo litigation, stemmed from a foreclosure action in Maryland, in which Wells Fargo had

obtained a judgment of foreclosure relating to a failed

shopping center. In the Wells Fargo litigation, both

Konover individually, and other entities related to him,

had been named as defendants. KBE, however, had not

been named as a defendant. After a final judgment was

rendered in Maryland against both Konover in his individual capacity, as well as several other entities, the

prevailing plaintiffs commenced an action against

Konover and several entities owned by him, including

KBE, seeking enforcement of the Maryland judgment

in the United States District Court for the District of

Connecticut.
Recognizing the possibility that KBE would need to

satisfy potential judgments and would incur substantial

legal fees as a result of the existing litigation, Konover

and the buyers included indemnification provisions in

the stock purchase and sales agreement. Pursuant to

§ 4.3 (b) (i) and (ii) of the agreement, Konover promised

to indemnify KBE and the buyers for ‘‘Damages’’

resulting from ‘‘any judgment’’ rendered against KBE

or the buyers in the existing litigation. In exchange,

Konover was given the exclusive right to manage the

existing litigation, and the defendants were required to

cooperate with Konover in the defense of the existing

litigation. The defendants were obligated, as well, to

cooperate with Konover in any counterclaims or new

actions brought by Konover against any parties to the

existing litigation. These potential actions were referred

to as ‘‘Successor Actions’’ in the parties’ agreement.6

Section 4.4 further provided, however, that Konover

was responsible for the cost of any successor actions.

During the course of the existing litigation, the defendants became discontent with Konover’s management

of the litigation. Also, Konover demanded reimbursement from the defendants for legal fees incurred during

the course of defending these matters.7 Unable to

resolve these disagreements, Konover and the plaintiffs

filed a twelve count complaint against the defendants,

alleging, inter alia, breach of contract for KBE’s refusal

to reimburse Konover for legal fees he incurred during

the existing litigation. In turn, the defendants filed a

counterclaim, alleging, inter alia, that Konover’s mismanagement of the litigation constituted a breach of

contract and a breach of fiduciary duty owed to them.

The defendants also claimed, in response to the complaint, that they were not obligated pursuant to the

agreement to reimburse Konover for expenses he

incurred in conjunction with the existing litigation. The

defendants subsequently filed a motion for summary

judgment on the same basis.

After briefing and argument, the trial court granted

the motion for summary judgment on all claims pertaining to breach of contract for failure to pay attorney’s

fees in the existing litigation, ruling that the agreement

clearly and unambiguously did not require KBE to reimburse Konover for legal fees incurred during the course

of the existing litigation, and only required the defendants to pay legal fees for any future claims brought

by the Archambault or Wells Fargo plaintiffs. Specifically, the court ordered: ‘‘Summary judgment is granted

on all claims premised on breach of a contract to pay

attorneys’ fees in the existing litigation in favor of the

defendants that moved for summary judgment. . . .

Because all counts of the current complaint are through

incorporation by reference premised on the existence

of the contract obligation rejected in this opinion, the

plaintiffs may have [thirty] days leave to file a new
complaint if they believe they can state causes of action

without the contract based premise that KBE promised

to pay fees in existing litigation.’’ The trial court’s ruling

disposed of all claims made by Konover Development

Corporation, Konover and Associates, Inc., Blackboard,

LLC, and Ripple, LLC. These entities subsequently filed

an appeal as a matter of right. The trial court’s ruling

did not, however, dispose of all claims made by Konover

in the complaint. As a result, Konover sought and was

granted permission from the trial court, Moukasher, J.,

and this court to appeal, pursuant to Practice Book

§ 61-4. In a separate motion, this court consolidated the

appeals. Additional facts will be set forth as necessary.

At the outset, we note the applicable standard of

review and legal principles relating to motions for summary judgment. ‘‘Summary judgment shall be granted if

the pleadings, affidavits and any other proof submitted

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law. Practice Book § 17-49. A fact is

material when it will make a difference in the outcome

of a case.’’ (Internal quotations omitted.) McFarline v.

Mickens, 177 Conn. App. 83, 90, 173 A.3d 417 (2017),

cert. denied, 327 Conn. 997, 176 A.3d 557 (2018). ‘‘Appellate review of the trial court’s decision to grant summary

judgment is plenary.’’ Id. ‘‘On appeal, we must determine whether the legal conclusions reached by the trial

court are legally and logically correct and whether they

find support in the facts set out in the memorandum

of decision of the trial court.’’ Lopes v. Farmer, 286

Conn. 384, 388, 944 A.2d 921 (2008).

I

We begin with the plaintiffs’ claim that the trial court

erroneously determined that the agreement clearly and

unambiguously did not obligate the defendants to reimburse Konover for any legal fees incurred during the

existing litigation. The plaintiffs assert that the provisions of the agreement, read in the context of the entire

agreement, unambiguously require the defendants to

pay for their own legal fees in the existing litigation.

As a result, the defendants must reimburse Konover

for legal fees that he advanced during the course of

the existing litigation. In support of this argument, the

plaintiffs urge this court to read § 4.3 (b) (i) and (ii) of

the agreement to exclude KBE’s attorney’s fees in the

existing litigation from Konover’s indemnification obligation. We are not persuaded.

We first set forth the standard of review and legal

principles that guide our analysis. ‘‘The court’s determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is de

novo.’’ (Internal quotation marks omitted.) Meridian

Partners, LLC v. Dragone Classic Motorcars, Inc., 171

Conn. App. 355, 364, 157 A.3d 87 (2017). ‘‘A contract is

unambiguous when its language is clear and conveys
a definite and precise intent. . . . The court will not

torture words to impart ambiguity where ordinary

meaning leaves no room for ambiguity. . . . Moreover,

the mere fact that the parties advance different interpretations of the language in question does not necessitate

a conclusion that the language is ambiguous. . . .

‘‘In contrast, a contract is ambiguous if the intent of

the parties is not clear and certain from the language

of the contract itself. . . . [A]ny ambiguity in a contract

must emanate from the language used by the parties.

. . . The contract must be viewed in its entirety, with

each provision read in light of the other provisions . . .

and every provision must be given effect if it is possible

to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the

contract is ambiguous.’’ (Internal quotation marks omitted.) Hirschfeld v. Machinist, 181 Conn. App. 309, 323–

24, 186 A.3d 771, cert. denied, 329 Conn. 913, 186 A.3d

1170 (2018).

Section 4.3 (b) (i) and (ii) are provisions that detail

Konover’s indemnification obligations to the defendants regarding both the existing litigation and any further actions. These sections state, in relevant part: ‘‘The

indemnification for Damages by [Konover] as it relates

to the [existing litigation], inclusive, shall be limited to

[Konover’s] obligation to satisfy any judgment in favor

of the named plaintiff against [the defendants] pursuant

to such actions, and specifically excludes the cost of

[the defendants’] legal fees as well as the costs or

expenses incurred by the [defendants] as a result of

any further claims brought by the plaintiffs in such

actions against [the defendants] . . . .’’ The term ‘‘judgment’’ is defined in § 4.3 (b) (iii) to include ‘‘actual

Damages assessed against [the defendants] . . . and

in every instance, shall expressly exclude and be limited

by those matters otherwise specifically set forth above

in [§ 4.3 (b) (i) and (ii)] . . . .’’ Additionally, the term

‘‘Damages’’ is defined in § 4.6 to include ‘‘fees and reasonable expenses of attorneys.’’

The plaintiffs assert that this language clearly and

unambiguously requires the defendants to reimburse

Konover for legal fees incurred in conjunction with the

existing litigation. It does not. The plaintiffs’ construction of § 4.3 (b) (i) and (ii) requires the use of the

language ‘‘as well as’’ to serve as a buffer between ‘‘cost

of [the defendants’] legal fees’’ and ‘‘further claims.’’

Put differently, the plaintiffs argue that the phrase ‘‘as

well as’’ must be construed to exclude the ‘‘cost of [the

defendants’] legal fees’’ from ‘‘further claims,’’ and must

instead be attributed to the cost of legal fees for the

existing litigation. This interpretation tortures the

words of the agreement to conform to the will of the

plaintiffs. The words ‘‘as well as’’ are commonly used

as an inclusive, connecting phrase, rather than a dividing one.8 Here, ‘‘as well as’’ plainly includes the cost of
the defendants’ legal fees in the category of expenses

specifically excluded from Konover’s indemnification

obligations for further claims. In other words, the plain

language of the contract requires Konover to pay for

legal fees incurred during the existing litigation, but the

defendants must pay for their own legal fees should

further claims be brought against KBE.9 This reading

of § 4.3 (b) (i) and (ii) is supported when construing

the language of the agreement as a whole.

Under § 4.4 of the agreement, Konover had the exclusive authority to manage the existing litigation. Further,

he was obligated to satisfy any judgment against the

defendants in the existing litigation under § 4.3 (b) (i)

and (ii). If this court were to accept the plaintiffs’ reading of the agreement, and §§ 4.3 and 4.4 in particular,

Konover could effectively use his managerial authority

to incur an open ended amount of legal expenses, at

the defendants’ expense, to defend against a judgment

that he alone would be obligated to satisfy. As the trial

court aptly observed in rendering summary judgment

in favor of the defendants: ‘‘There is no way to convert

any language limiting what Konover must do into language requiring KBE to do something that would be

extraordinary and was not mentioned in the contract:

assume an affirmative obligation to pay an unlimited

amount of attorneys’ fees to defend against claims that

ultimately Konover alone might have to pay. Indeed,

such an interpretation is not only disconnected from

any language in the contract but is made absurd by the

contract provision that gives Konover the sole right to

manage the litigation—including how much is spent

defending it and for how long. With someone else’s

millions for defense, Konover would have precious little

incentive to pay even a penny for tribute regardless [of]

whether it would make the cases go away entirely.’’

Our courts refuse to ‘‘construe a contract’s language

in such a way that it would lead to an absurd result.’’

Welch v. Stonybrook Gardens Cooperative, Inc., 158

Conn. App. 185, 198, 118 A.3d 675, cert. denied, 318

Conn. 905, 122 A.3d 634 (2015).

The plaintiffs also argue that the trial court’s reading

of § 4.3 (b) (i) and (ii) renders the word ‘‘costs’’ superfluous because the manner in which the court interpreted

the agreement would exclude both the cost of KBE’s

legal fees and the costs incurred by the buyers as a

result of further claims. In other words, the plaintiffs

argue that the words ‘‘cost’’ and ‘‘costs’’ are synonymous

and, thus, cannot both be understood to apply to ‘‘future

claims’’ without being duplicative. We disagree.

The plaintiffs would have the court interchange the

term ‘‘cost’’ and ‘‘costs’’ in its construction. These

words, however, commonly have different meanings.

‘‘We often consult dictionaries in interpreting contracts

. . . to determine whether the ordinary meanings of

the words used therein are plain and unambiguous, or
conversely, have varying definitions in common parlance.’’ (Internal quotation marks omitted.) NPC

Offices, LLC v. Kowaleski, 320 Conn. 519, 528, 131 A.3d

1144 (2016). The word ‘‘cost’’ is often defined as the

‘‘amount paid or charged for something.’’ Black’s Law

Dictionary (9th Ed. 2009). Conversely, the word ‘‘costs’’

commonly refers to ‘‘charges or fees taxed by a court’’

or ‘‘expenses of litigation, prosecution, or other legal

transaction, [especially] those allowed in favor of one

party against the other.’’ Id., 398. ‘‘[T]he term costs is

a term of art having a limited, well-defined legal meaning as statutory allowances to a prevailing party in a

judicial action in order to reimburse him or her for

expenses incurred in prosecuting or defending the proceeding.’’ (Internal quotation marks omitted.) Yeager

v. Alvarez, 134 Conn. App. 112, 121, 38 A.3d 1224 (2012).

Consequently, the ordinary reading of § 4.3 (b) (i) and

(ii) would exclude from Konover’s indemnification obligation the cost (sum or amount charged) of KBE’s attorney’s fees and the costs (statutory allowances of the

prevailing party) or expense incurred by KBE as a result

of future claims, but not the existing litigation.

As noted by the trial court, the stock purchase

agreement is devoid of any language that imposes an

affirmative obligation on the defendants to indemnify

Konover for any legal fees incurred during the existing

litigation. Rather, the agreement squarely places an

affirmative obligation on Konover to indemnify the

defendants for any judgment rendered for the named

plaintiffs in the existing litigation. We decline to impose

such an obligation on the defendants in the absence of

any express language in the agreement. ‘‘[A] court cannot import into the agreement a different provision nor

can the construction of the agreement be changed to

vary the express limitations of its terms.’’ Deming v.

Nationwide Mutual Ins. Co., 279 Conn. 745, 781–82,

905 A.2d 623 (2006).

We conclude that the language of the agreement is

clear and unambiguous; the defendants are not obligated to reimburse Konover for legal fees incurred during the existing litigation. Accordingly, we conclude

that the court properly rendered summary judgment in

the defendants’ favor.

II

The plaintiffs next claim that even if the agreement

is clear and unambiguous, we should look beyond the

four corners of the agreement to consider the meaning

the parties ascribed to the indemnification provisions

of the agreement by their course of conduct. We reject

this invitation to error.

The following additional facts are pertinent to the

plaintiffs’ claim. The defendants initially took the position in their counterclaim and memorandum in support

of their motion for summary judgment that KBE was
required to pay for its own legal fees in the existing

litigation. At oral argument on the defendants’ motion

for summary judgment, the trial court opined that the

agreement was clear and unambiguous, and did not

obligate the defendants to indemnify Konover for legal

fees incurred during the existing litigation. Consequently, after oral argument, the defendants adopted

the trial court’s interpretation of the agreement in their

supplemental memorandum of law in support of their

motion for summary judgment. Conversely, the plaintiffs argued that the trial court’s reading of the contract

was inconsistent with the intent of the parties.

As a preliminary matter, the plaintiffs urge the court

to look to the admissions in the defendants’ pleadings

to discern the parties’ understanding of the contract

language. In essence, Konover asserts that the defendants should be bound by their judicial admissions and,

therefore, they should be prevented from now making

a contrary argument. ‘‘Judicial admissions are voluntary

and knowing concessions of fact by a party or a party’s

attorney occurring during judicial proceedings. . . .’’

Kopacz v. Day Kimball Hospital of Windham County,

Inc., 64 Conn App. 263, 272, 779 A.2d 862 (2001). ‘‘Admissions, whether judicial or evidentiary, are concessions

of fact, not concessions of law.’’ Borrelli v. Zoning

Board of Appeals, 106 Conn. App. 266, 271, 941 A.2d

966 (2008). ‘‘[C]oncessions of fact inform the trier of

the fact, court or jury, but they in no way bind the court

in its independent, plenary, and judicial determination

of the applicable law.’’ C. Tait & E. Prescott, Connecticut Evidence (5th Ed. 2014) § 8.16.3 (a), p. 529. The

issue at hand is a question of law and not fact. Because

we hold that the language of the contract is clear and

unambiguous, the intent of the parties in utilizing the

language in question is not binding on the court’s legal

determination of the import of the contract language.

Accordingly, the trial court and we, on review, decline

to give deference to the erroneous construction of the

agreement initially advanced by the defendants in

their pleadings.

‘‘If the language of a contract is clear and unambiguous, the intent of the parties is a question of law, subject

to plenary review.’’ Schimenti v. Schimenti, 181 Conn.

App. 385, 396, 186 A.3d 739 (2018). ‘‘Where the language

of the contract is clear and unambiguous, the contract

is to be given effect according to its terms.’’ Awdziewicz

v. Meriden, 317 Conn. 122, 129–30, 115 A.3d 1084 (2015).

‘‘When only one interpretation of a contract is possible,

the court need not look outside the four corners of the

contract.’’ (Internal quotation marks omitted.) Isham v.

Isham, 292 Conn. 170, 180, 972 A.2d 228 (2009); accord

Dejana v. Dejana, 176 Conn. App. 104, 115, 168 A.3d

595, cert. denied, 327 Conn. 977, 174 A.3d 195 (2017).

‘‘[E]xtrinsic evidence may be considered in determining

contractual intent only if a contract is ambiguous.’’

(Internal quotation marks omitted.) Orange Palladium,
LLC v. Readey, 144 Conn. App. 283, 297, 72 A.3d 1191

(2013). ‘‘When the intention conveyed by the terms of

an agreement is clear and unambiguous, there is no

room for construction.’’ (Internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 278, 654 A.2d

737 (1995). ‘‘The circumstances surrounding the making

of the contract, the purposes which the parties sought

to accomplish and their motives cannot prove an intent

contrary to the plain meaning of the language used.’’

(Internal quotation marks omitted.) Id., 279. In sum,

decisional law holds that if the language of the contract

is clear and unambiguous, our courts must look only

to the four corners of the contract to discern the parties’ intent.

The plaintiffs rely on Sims v. Honda Motor Co., Ltd.,

225 Conn. 401, 623 A.2d 995 (1993), to support the

proposition that our courts do not strictly adhere to

the four corners rule in all circumstances. We find Sims,

however, to be inapplicable to the current case. In Sims,

our Supreme Court recognized that its holding, which

enabled the court to look beyond the four corners of

a contract, even if the language was clear and unambiguous, was limited to the application of General Statutes

§52-572e, which relates to general releases.10 For additional support, Konover cites to numerous treatises and

Justice Berdon’s dissenting opinion in Levine v. Massey,

supra, 232 Conn. 284, for the proposition that, under

the appropriate circumstances, a court may look

beyond the plain language of a contract to glean the

intention of the parties to the agreement. We do not

find these authorities determinative of the issue we

confront.

In Levine, supra, 232 Conn. 280–83, our Supreme

Court strictly adhered to the four corners approach to

contract interpretation, holding that the plain language

of the contract was clear and unambiguous and did not

entitle the defendant to royalty payments for a new

medical device invented by one of the plaintiffs. In

his dissent, Justice Berdon rejected the four corners

approach as a constant limitation to analysis and

instead advocated for the use of extrinsic evidence in

all instances to determine the parties’ intent. Id., 286–87

(Berdon, J., dissenting). Similarly, Justice Berdon relied

on numerous treatises to support the proposition that

language is inherently ambiguous and that a court must

not ascribe a meaning to a contract outside the contemplation of the parties.11 Id., 287.

Even if there may be a circumstance in which extrinsic evidence may be referenced to glean the intent of

the parties in their utilization of plain language, we

are unwilling, in this instance, to stray from our well

reasoned jurisprudence that plain language should be

accorded its plain meaning.

Accordingly, we reject the plaintiffs’ argument that

this court should embrace a more modern theory of
contract interpretation that looks outside the four corners of the contract to discern the intention of the

parties irrespective of whether the contract is

ambiguous.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Additional plaintiffs in this appeal include Konover Development Corporation, Konover & Associates, Inc., Blackboard, LLC, and Ripple, LLC. For

clarity, we refer to Michael Konover individually as Konover, and the parties

associated with him collectively as the plaintiffs.

2 Additional defendants in this appeal include KBE Building Corporation,

KBE Holdings, Inc., Konover Construction Corporation South, Sturdy Fence

Corp., Elite Construction Rentals, LLC, and Conn-struction, LLC. For clarity,

we refer to the defendants individually by name and collectively as the

defendants.

3 The company was named Konover Construction Company before its

sale to the buyers. For simplicity, we refer to the entity as KBE even when

the events described occurred prior to KBE’s renaming.

4 For clarity, we also refer to these lawsuits collectively as the existing litigation.

5 The Archambault litigation also included issues relating to insurance

coverage.

6 Section 4.4 of the agreement states, in relevant part: ‘‘As to the indemnifications set forth in [§] 4.3 [of the agreement] with respect to the Existing

Litigation and the Successor Actions (as hereinafter defined) . . .

[Konover] shall have and retain the sole right to manage the litigation,

including without limitation, the settlement thereof or the right to prosecute

appeals with respect to any judgment arising thereunder . . . . [The defendants] shall, at no cost to [Konover], cooperate in good faith with reasonable

diligence to assist [Konover] in connection with the defense of the Existing

Litigation and the prosecution, as the case may be, upon request of [Konover]

in the name of any of the Companies, of counter-claims and/or new litigation

against any party . . . . [Konover] will pay the cost of any such Successor

Actions (including reasonable legal fees of the Companies) . . . .’’

7 Specifically, in the Archambault litigation, the defendants objected to

Konover’s decision to retain Attorney Wesley Horton to supplement KBE’s

existing appellate defense counsel, alleging that they were unaware that

Horton had been retained until after Konover sought reimbursement. Moreover, in the Wells Fargo litigation, the defendants claimed that Konover

failed to settle claims involving KBE so that funds from a director and officer

insurance policy could instead be used for his personal defense. The plaintiff

sought to compel KBE to pay its fair share of legal fees, which he calculated

by evenly apportioning legal fees incurred by all defendants in the litigation.

8

‘‘As well as’’ is commonly understood to mean ‘‘and in addition [to]’’ or

‘‘and also.’’ See Merriam-Webster Collegiate Dictionary (11th Ed. 2003);

Ballentine’s Law Dictionary (3rd Ed. 1969).

9

In the alternative, the plaintiffs argue that the reading of the connecting

phrase is, at a minimum, ambiguous, ‘‘creating a factual issue of interpretation that precludes summary judgment for the defendants.’’ An ambiguity,

however, ‘‘must emanate from the language used in the contract rather than

from one party’s subjective perception of the terms.’’ (Internal quotation

marks omitted.) Bassford v. Bassford, 180 Conn. App. 331, 348, 183 A.3d

680 (2018).

10 In Sims, our Supreme Court stated: ‘‘We recognize that our conclusion is

a departure from the general rule of contract construction that unambiguous

contract provisions are to be given their plain meaning without reference

to evidence outside the four corners of the agreement. . . . Rigid application of that general rule would, however, frustrate the purposes of [General

Statutes] § 52-572e, which counsels against uncritical enforcement of boilerplate general release language and, therefore, justifies treating such language differently from how we treat other contractual provisions.

Accordingly, we hold that, in light of the purposes of § 52-572e, general

releases like that executed by Sims are not subject to that traditional rule

of contract construction.’’ Id., 415.

11 Specifically, Justice Berdon stated, in relevant part: ‘‘[W]hile it is true

that under the ‘four corners’ doctrine, a court may not consider any extrinsic

evidence unless a contract is ambiguous, the more modern view, propounded

by Professors Corbin and Farnsworth, recognizes that ‘the meaning of lan-
guage may vary greatly according to the circumstances’ and that ‘all language

is infected with ambiguity and vagueness and that even language that seems

on its face to have only one possible meaning may take on a different

meaning when all the circumstances are disclosed . . . .’ 2 E. Farnsworth,

Contracts (1990) § 7.12, pp. 277–78. Under this theory, extrinsic evidence

is always available to be used for interpreting the intent of the parties. Id.,

p. 272. After all, as Professor Corbin observed, ‘[n]o contract should ever

be interpreted and enforced with a meaning that neither party gave it.’ 3 A.

Corbin, Contracts (Sup.1994) § 572B, p. 443 . . . . ’’ Levine v. Massey,

supra, 232 Conn. 286–87 (Berdon, J., dissenting).