Opinion
No. CV 02-0820681S
October 10, 2007
MEMORANDUM ORDER RE MOTION TO REOPEN JUDGMENT AND SET ASIDE VERDICT FOR THE PLAINTIFF
Upon reviewing all materials submitted by defendant Louis M. Ursini, Jr. ("Mr. Ursini") and plaintiff Francis T. Zappone Co. ("Zappone Co."), respectively, in support of and in opposition to Mr. Ursini's August 20, 2007 Motion to Reopen Judgment and Set Aside Verdict ("Instant Motion") in this action (the " Zappone Co. Action"), the Court hereby concludes, for the following reasons, that said Motion must be DENIED:
Procedural History
1. The Zappone Co. Action was tried before this Court along with a companion case, Capital Ventures, LLC v. Plymouth Commons Realty Corp. et al., No. CV 02-0816568-S (the " Capital Ventures Action"), on divers dates in May and June of 2003. After the close of all the evidence, the Court received extensive briefs and heard lengthy arguments from counsel for all parties, then rendered judgment in the two Actions by filing a joint Memorandum of Decision on January 22, 2007.
2. In its Memorandum of Decision, the Court initially made detailed findings of fact as to the many overlapping issues arising in the two Actions. Id. at pp. 2-39. Those findings of fact are hereby incorporated into this Memorandum Order and made a part hereof.
3. On the basis of its findings of fact, the Court ruled as follows on the several claims presented for its decision in the Zappone Co. Action, where Zappone Co., a commercial real estate brokerage firm owned and operated by one Francis T. Zappone ("Mr. Zappone"), was the sole plaintiff and Mr. Ursini and two corporations controlled by him — Plymouth Commons Realty Corp. and Terryville Holding Corp. ("the corporate defendants") — were the three defendants:
a. First, the rendered judgment for Zappone Co. on its claims of breach of contract against the two corporate defendants, as pleaded in the Second Count of its Complaint ("ZC Complaint"). This ruling was based upon the corporate defendants' proven failure to pay commissions that had become due and payable to it, under their exclusive listing agreements ("the Brokerage Agreements") with it for the marketing and sale of commercial properties owned by them in Plymouth and Terryville, Connecticut ("the Properties"), upon its presentation of Capital Ventures, LLC ("Capital Ventures") as a ready, willing and able buyer for the Properties during the term of the Brokerage Agreements. Memorandum of Decision, pp. 40-48. On these claims, the Court initially awarded Zappone Co. the aggregate sum of $458,468.75, including: an aggregate commission of $225,900, representing 6% of the total purchase price for the Properties, as agreed to by the corporate defendants and Capital Ventures in their amended sales agreement of October 15, 2001 ("the amended CV Sales Agreement"); interest on the aggregate commission of $61,548.49, calculated at the contract rate of 12% per year from October 15, 2001 through January 12, 2004; and "reasonable attorneys fees" of $171,020.26 for legal fees and costs incurred to collect the commission from the date it was earned through July 17, 2003.
b. Second, the Court rendered judgment for Zappone Co. on its claim against the corporate defendants, as pleaded in the First Count of the ZC Complaint, holding that it was entitled under the Brokerage Agreements to recover one-half of Capital Ventures' $250,000.00 deposit towards the purchase of the Properties, if and to the extent that Capital Ventures were held to have forfeited that deposit upon the termination of the amended CV Sales Agreement. It ruled, however, that Zappone Co.'s one-half share of the Capital Ventures deposit, if and to the extent that it were awarded to the corporate defendants on their Counterclaim in the Capital Ventures Action ("CV Counterclaim"), must be applied as a credit to Zappone Co.'s award of damages against them for breach of contract under the Second Count of the ZC Complaint, not added to that award as additional compensation for its work on the Capital Ventures deal. Memorandum of Decision, pp. 48-50.
c. Third, the Court rendered judgment for the corporate defendants on Zappone Co.'s claims against them for breach of contract and breach of the implied covenant of good faith and fair dealing, as pleaded in the Third and Fourth Counts of the ZC Complaint. These claims were based upon the corporate defendants' alleged refusal to market the listed Properties to Zappone Co.'s client, James Levin ("Mr. Levin"), in the 24-month "tail period" following the expiration of the Brokerage Agreements. Memorandum of Decision, pp. 50-56. The Court's rejection of Zappone Co.'s so-called "Levin claims" was based upon its conclusion that, in the "tail period" following the expiration of the Brokerage Agreements, the corporate defendants owed no continuing duty to market the Properties to any of Zappone Co.'s clients.
d. Fourth and finally, on Zappone Co.'s claim that all three defendants — the corporate defendants and Mr. Ursini — had violated the Connecticut Unfair Trade Practices Act ("CUTPA"), General Statutes § 42-110a et seq., by engaging in divers forms of unfair and deceptive trade practices in their commercial dealings with it from the very outset of its business relationship with them until the commencement of the Zappone Co. Action, the Court rendered judgment against all three defendants as follows: it held them jointly liable to pay Zappone Co. nominal compensatory damages of $1,000, and held Mr. Ursini personally liable to pay Zappone Co. an additional $40,000 in punitive damages. Memorandum of Decision, pp. 56-67. The sole basis upon which the Court found the three defendants liable under CUTPA, among the many possible bases for liability pleaded in the Seventh Count of the ZC Complaint, was Mr. Ursini's unscrupulous effort, after the corporate defendants' planned sale of the Properties to Capital Ventures under the amended CV Sales Agreement had fallen through but before their Brokerage Agreements with Zappone Co. had expired, to find a new buyer for the Properties on his own, behind Zappone Co.'s back, in an ill-disguised effort to deprive it of a commission in connection with their ultimate sale. Although the Court concluded that this effort to cheat Zappone Co. out of a commission was doomed from the outset — both because Zappone Co. had already done everything necessary under the Brokerage Agreements to earn a commission from the corporate defendants by presenting Capital Ventures as a ready, willing and able buyer for the Properties and because it would have been entitled to a second such commission had the Properties eventually been sold to another person or entity first identified as a potential buyer for them before the Brokerage Agreements expired — it nonetheless concluded that that effort caused Zappone Co. to suffer an ascertainable loss of money by requiring it to become hypervigilant to prevent Mr. Ursini from succeeding in his effort. It is this final portion of the judgment rendered in the Zannone Co. Action — the judgment rendered personally against Mr Ursini for violating CUTPA in the manner just described — that is at issue on the Instant Motion.
4. Thereafter, the Court went on to rule as follows on the related claims presented for its decision in the Capital Ventures Action:
a. First, it rejected Capital Ventures' claim against the corporate defendants, as pleaded in the Count One of its Complaint ("CV Complaint"), that it was entitled to the return of its $250,000.00 deposit under the amended CV Sales Agreement because the unexpected illness and disablement of its manager, Attorney Charles D. Gersten, had rendered impracticable the performance of its obligations under that Agreement. Memorandum of Decision, pp. 67-73.
b. Second, it rejected Capital Ventures' alternative basis for claiming the return of its $250,000.00 deposit, which was also pleaded in the Count One of the CV Complaint, that the corporate defendants had waived their right to retain the deposit as liquidated damages by making a binding election to pursue a claim for their actual money damages instead. On that claim, the Court found, inter alia, that, although the amended CV Sales Agreement gave the corporate defendants a clear choice of remedies in the event of a default by Capital Ventures — empowering them either to retain the deposit as liquidated damages or to pursue a civil remedy, at law or in equity, for their actual damages — they had never definitively elected the latter remedy to the exclusion of the former, and thus had not induced Capital Ventures, by making that election, to materially change its position in this case or thereby suffer any harm. Id., pp. 73-77.
c. Third, the Court disagreed on the facts with, and thus rendered judgment for the corporate defendants on, Capital Ventures' claim against them, as pleaded in Count Two of the CV Complaint, that it was entitled to restitution from them for that portion of its $250,000.00 deposit which was greater than the actual damages they incurred as a result of Capital Ventures' default under the amended CV Sales Agreement. Memorandum of Decision, pp. 77-82. To the contrary, it found that the corporate defendants' actual damages due to Capital Ventures' breach of the amended CV Sales Agreement closely approximated the amount of its forfeited deposit, for it included the $225,900 commission they owed to Zappone Co. plus accumulated interest thereon.
d. Fourth, on the corporate defendants' one-count CV Counterclaim against Capital Ventures, in which they sought to retain Capital Ventures' $250,000 deposit as liquidated damages based upon Capital Ventures' default under, and their own resulting termination of the amended CV Sales Agreement, the Court held initially that Capital Ventures could not prevail on its special defense that, even if its deposit were otherwise subject to forfeiture, at least part of that deposit should be returned due to the corporate defendants' failure to mitigate their damages following the breach. Memorandum of Decision, pp. 82-83. The Court rejected this claim as a matter of law, concluding that stipulated amounts of liquidated damages are never subject to reduction for failure to mitigate. It thus did not reach the merits of Capital Ventures' claim of failure to mitigate, which was based entirely upon the corporate defendants' alleged refusal to market the Properties to Mr. Levin after the amended CV Sales Agreement was terminated and the Brokerage Agreements expired.
e. Fifth and finally, having rejected all of the legal and factual grounds upon which Capital Ventures sought to avoid the forfeiture of its $250,000.00 deposit, the Court rendered judgment for the corporate defendants, as plaintiffs on the CV Counterclaim, ruling that they were entitled to retain the deposit, albeit subject, as aforesaid, to Zappone Co.'s right to receive one-half of that deposit in partial satisfaction of its judgment against them for breach of contract in the Zappone Co. Action.
5. On February 25, 2004, all three defendants moved this Court, under Section 11-11 of the Connecticut Practice Book, for reargument of the judgment rendered for the plaintiff in the Zappone Co. Action. The specific grounds upon which the defendants sought reargument were as follows: (1) that the Court's award of attorneys fees to Zappone Co. on its successful claims of breach of contract, based upon the corporate defendants' failure to pay it commissions for procuring Capital Ventures as a ready, willing and able buyer for the listed Properties, must be reduced to include only those fees which it reasonably incurred for the collection of those unpaid commissions; (2) that the challenged award of attorneys fees should be further reduced by an amount equaling all attorneys fees which the defendants had previously paid to Zappone Co. as sanctions for discovery misconduct prior to trial; and (3) that the Court should set aside its judgment for Zappone Co. on its CUTPA claim against them because there was assertedly no basis in the record for its underlying determination that Zappone Co. had sustained an ascertainable loss of money due to Mr. Ursini's unscrupulous effort to find another buyer for the Properties behind Zappone Co.'s back after the termination of the amended CV Sales Agreement but before the Brokerage Agreements expired. Both parties filed multiple briefs on these issues and addressed the Court with oral argument on two occasions.
6. On April 7, 2004, at the first oral argument on the Motion for Reargument, the Court rejected from the bench the defendants' claim that Zappone Co.'s judgment against them under CUTPA was not supported by sufficient evidence that it had sustained an ascertainable loss of money as a result of Mr. Ursini's unscrupulous effort to market the Properties on his own, and thus to cheat it out of a second commission, after the termination of the amended CV Sales Agreement but before the expiration of the Brokerage Agreements. Thereafter, on July 28, 2004 the Court confirmed this ruling in writing by issuing its Memorandum of Decision on Defendants' Motion for Reargument of Final Judgment ("Reargument Decision").
7. Following the issuance of the Reargument Decision, the corporate defendants both promptly filed for bankruptcy in the United States Bankruptcy Court for the District of Connecticut, thereby forestalling, at least temporarily, any effort by Zappone Co. to execute upon its judgments against them. In that same time frame, Mr. Ursini appealed to the Appellate Court from the final judgment entered against him under CUTPA in the Zappone Co. Action. The Appellate Court affirmed that judgment in a published decision issued on January 16, 2007. See Francis T. Zappone Co. v. Plymouth Commons Realty Corp., et al., 99 Conn.App. 175, 912 A.2d 1113 (2007).
The Instant Motion
8. On August 20, 2007, Mr. Ursini, who had still not paid any portion of the judgment entered against him on Zappone Co.'s CUTPA claim herein, filed the Instant Motion under the authority of General Statutes § 52-212a and Practice Book § 17-4. As grounds for his Motion, which he filed together with a supporting Memorandum of Law, Mr. Ursini claims that the challenged judgment was procured by fraud, in that the verdict of this Court upon which that judgment was rendered was itself based upon perjured trial testimony from Zappone Co's principal, Mr. Francis T. Zappone.
9. On this score, Mr. Ursini alleges, more particularly, that:
1. This action was commenced on May 30, 2002 against these defendants by the plaintiff.
2. This matter was tried to the Court, Sheldon, J. [o]ver the course of several days during May and June of 2003.
3. The basis of the claims against the defendants were [sic] the breach of a commercial real estate brokers agreement and violations of the Connecticut Unfair Trade Practices Act.
4. The defendant, Louis Ursini was an officer and director of the two corporate defendants.
5. The claims against the defendant, Louis Ursini were limited to alleged CUTPA violations arising from his dealings with the plaintiff on behalf of the corporate defendants during the term of the brokerage agreement.
CT Page 17318
6. That at all times relevant hereto the plaintiff was to have held a deposit of $250,000.00 in a fiduciary capacity as the broker for the corporate defendants.
7. That during the time frame of February through October 2001 deposits were made totaling $250,00.00 [sic] into the plaintiff's fiduciary account[.]
8. At various times during 2001, 2002, 2003 and 2004 the plaintiff misappropriated those funds for its use for obligations other than the deposit for the purported sale by those defendants of certain real estate.
9. Said misappropriation was in breach of the plaintiff's fiduciary responsibilities to the defendants as well as being in violation of Connecticut law and the regulations governing the real estate industry.
10. During the course of the trial in this case, Mr. Francis T. Zappone a principle [sic] of the plaintiff affirmatively testified to and introduced evidence of the continued existence of the $250,000.00 deposit.
11. Said testimony and evidence was [sic] false, and known by Mr. Zappone to be false in an attempt to defraud this court.
12. On or about April 13, 2007 the defendant Louis Ursini discovered the misappropriation when the plaintiff was ordered to turn over its banking records by the United States Bankruptcy Court for the District of Connecticut in connection with the bankruptcies of the two corporate defendants.
13. The plaintiff came into this court seeking and receiving equitable relief with unclean hands, which by law would preclude such relief.
14. The fraud, which was perpetrated in order to avoid the forfeiture of the plaintiff's equitable claims on the basis of its unclean hands, on this Court by the plaintiff was knowing and intentional and warrants the setting aside of and vacating the verdict against the defendant Louis M. Ursini, Jr.
Instant Motion, ¶¶ 1-14.
10. On the basis of the foregoing allegations, Mr. Ursini claims that he is entitled to a new trial under well-established principles of Connecticut law.
The Governing Law
11. The parties agree, as they must, that in Connecticut, "[t]he power of a court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions regarding the opening of judgments; hence, judgments obtained by fraud may be attacked at any time." Kenworthy v. Kenworthy, 180 Conn. 129, 131 (1980). They agree, moreover, that when a judgment is attacked on grounds of "intrinsic" rather than "extrinsic" fraud — that is, fraud involving the presentation of perjured testimony or fraudulent evidence at a fully contested trial rather than fraud preventing the moving party from fully presenting his claim or defense at trial — the challenged judgment cannot lawfully be vacated unless that party can establish that he
is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different. James, Civil Procedure (1965) 11.7, pp. 540-42; 36 Ill. L. Rev. 894, 896-97 (1942). Furthermore, the granting of such relief must not unfairly jeopardize interests of reliance that have taken shape on the basis of the judgment. James Hazard, Civil Procedure (2d Ed.) 13.14, p. 687.
Varley v. Varley, 180 Conn. 1, 3-4 (1980) (Citing and quoting extensively from Restatement (Second), Judgments § 70, for the proposition that, "To have a judgment set aside on the basis of fraud which occurred during the course of the trial upon a subject on which both parties presented evidence is especially difficult").
12. Under the foregoing authorities, a party seeking to open a judgment on the ground of intrinsic fraud must not only prove that such fraud was perpetrated at his trial, but that he personally was victimized by it because it "was a material basis for the judgment and was not merely cumulative or relevant to a peripheral issue." Restatement (Second), Judgments § 70, comment d. If the moving party cannot prove that the judgment against him was based materially upon the alleged fraud of which he complains, then he likewise cannot prove, as he must to prevail on his motion to open judgment, that the exposure of such fraud creates "a substantial likelihood that the result of a new trial will be different." Varley v. Varley, supra, 180 Conn. at 4.
Zappone Co.'s Response to the Instant Motion
13. Zappone Co. has opposed the Instant Motion by filing its own Objection to Reopen Judgment and Set Aside Verdict ("Objection") on September 6, 2007. In its Objection, Zappone Co. argues, inter alia, that the Instant Motion should be denied because: (a) Mr. Ursini cannot prove that Mr. Zappone committed perjury when he affirmatively testified at trial to the continuing existence of the Capital Ventures deposit; id., pp. 18-20; and (b) even if he could prove that Mr. Zappone's challenged testimony was perjurious, he cannot prove that such perjury was material to the verdict and judgment against him under CUTPA. Id., p. 23. On the latter point, in particular, Zappone Co. argues as follows:
Moreover, it is impossible to claim sincerely that the outcome of a new trial would be any different from the January 2004 judgment. Any purported fraud is entirely irrelevant to the CUTPA claim against Ursini . . . [T]he deposits solely relate to the properties owned by Plymouth Commons and Terryville Holding. Any determination of the rightful owner of the escrowed funds involved these two entities and [Zappone] Co. Ursini had no right or interest to [sic] the monies. Ursini cannot gloss over the fact that the only judgment at issue in this motion is the award of punitive damages against him in his individual capacity.
Id.
Court's Analysis
14. The Court agrees with Zappone Co. that, even if Mr. Zappone committed perjury when he testified that the entire Capital Ventures deposit was still held in Zappone Co.'s escrow account at the time of trial, such perjury, even if proven, neither was nor could have been material to the challenged verdict or judgment against Mr. Ursini under CUTPA herein.
15. Here, it must first be noted, Mr. Ursini has not argued that Zappone Co.'s alleged misuse of funds from the escrowed Capital Ventures deposit for its own purposes was in any way related to the substance of Zappone Co.'s CUTPA claim against him. Such an argument, of course, would have been entirely baseless, for while the challenged CUTPA claim was grounded exclusively upon Mr. Ursini's unscrupulous efforts to cheat Zappone Co. out of the second commission it could have earned under the Brokerage Agreements by producing another ready, willing and able buyer for the corporate defendants' listed Properties after the Capital Ventures deal fell through, Zappone Co.'s alleged misuse of the escrowed deposit and Mr. Zappone's alleged perjury denying it at trial related only to the Capital Ventures deal itself, which of course was the earlier, entirely separate transaction, to which Mr. Ursini was not a party, in which Zappone Co. had earned its first commission under the Brokerage Agreements. Plainly, since Zappone Co.'s alleged misuse of funds from the escrowed Capital Ventures deposit was not relevant to Mr. Ursini's conduct in violation of CUTPA, Mr. Zappone's alleged perjury concerning Zappone Co.'s handling of the deposit was immaterial to Zappone Co's CUTPA claim.
16. Seemingly mindful of the total disconnect between Mr. Zappone's alleged perjury concerning the escrowed deposit to Zappone Co.'s CUTPA claim against him, Mr. Ursini claims instead that such perjury was material to that claim in an entirely different sense, to wit: by depriving him of essential evidence upon which to present the equitable defense of unclean hands, upon which he could assertedly have relied on to defeat the CUTPA claim had the truth been revealed to him at trial. The essential basis for this alternative materiality argument is as follows:
a. The equitable defense of unclean hands is based upon proof that the proponent of an equitable claim engaged in wilful misconduct relating to the matter in litigation; see, e.g., DeCecco v. Beach, 174 Conn. 29, 35 (1977);
b. The unclean-hands defense need not be specially pleaded, but can be raised at any time under a general denial; Gest v. Gest, 117 Coun. 289, 300-01 (1933);
c. The unclean-hands defense can be relied upon to defeat a CUTPA claim because CUTPA is "essentially equitable" in nature; Associated Investment Co. Limited Partnership v. Williams Associates IV, 230 Conn. 148, 159 (1994);
d. Here, had Mr. Zappone not perjured himself at trial with regard to Zappone Co.'s misuse of funds from the escrowed Capital Ventures deposit, which it was obliged to hold in escrow for the corporate defendants under its Brokerage Agreements with them, the evidence would have revealed that Zappone Co. acted with unclean hands in its dealings with the defendants under those Brokerage Agreements.
17. For the following reasons, this argument misapprehends the true scope and substance of the clean-hands doctrine, and thus misapplies it to this case.
18. As explained by the authors of the leading treatise on CUTPA, the clean-hands doctrine operates as follows:
A party asking the court for equity must come to it with clean hands. The party invoking the clean-hands doctrine to bar equitable relief must show that his or her opponent engaged in willful misconduct relating to the matter in litigation . . . A party claiming that the opposing party is in court with unclean hands must show that he himself, and not some third party, was injured by such conduct.
R. Langer, L. Morgan D. Belt, 12 Connecticut Practice Series: Unfair Trade Practices, § 5.11, p. 358.
18. This description of the operation of the clean-hands doctrine in the CUTPA context is entirely consistent with that provided in a long line of Connecticut cases explaining its operation in other legal contexts. Such cases make it clear that invocation of the doctrine is strictly limited to those who have been personally harmed by their opponents' fraudulent conduct "in the particular transaction in suit." As our Supreme Court explained at length in Lyman v. Lyman, 90 Conn. 399, 405-07 (1916):
The familiar maxim that he who comes into equity must come with clean hands, is not used to convey the idea that no person is permitted to invoke the aid of a court of equity whose life and conduct has not been above reproach; nor does it mean, . . . that a litigant, to obtain relief in equity, must have been without fault in all his dealings with or conduct toward the party against whom the relief is asked. Seilheimer v. Seilheimer, 40 N.J. Eq. 412, 413. The maxim "only applies to the particular transaction under consideration, for the court will not go outside of the case for the purpose of examining the conduct of the complaint in other matters or questioning his general character for fair dealing. The wrong must have been done to the defendant himself and must be in regard to the matter in litigation." City of Chicago v. Stock Yards Co., 164 Ill. 224, 238, 45 N.E. 430; Langdon v. Templeton, 66 Vt. 173, 182, 28 A. 866; Bisphams Principles of Equity (9th Ed.) p. 72. "When a court of equity is appealed to for relief it will not go outside of the subject-matter of the controversy, and make its interference to depend upon the character and conduct of the moving party in no way affecting the equitable right which he asserts against the defendant, or relief which he demands." 1 Pomeroy on Equity Jurisprudence (3d Ed.) § 399. "The maxim that `he who comes into equity must come with clean hands," has no such application as the defendant seeks to give to it. It refers solely to willful misconduct in regard to the matter in litigation . . . Though an obligation be indirectly connected with an illegal transaction, it will not be thereby barred from enforcement, if the plaintiff does not require the aid of the illegal transaction to make out his case." Yale Gas Stove Co. v. Wilcox, 64 Conn. 101, 128, 29 A. 303 [1879].
Thus, the court will not go outside the case before it to examine the complainant's conduct in other matters or to question his general character for fair dealing; Orsi v. Orsi, 125 Conn. 66, 69-70 (1938); nor will it rely upon the doctrine to defeat an equitable claim when the complainant's alleged misconduct concerns only a collateral matter. LaFrance v. LaFrance, 122 Conn. 556, 559-60 (1937). Accord, Polverari v. Peatt, 29 Conn.App. 191, cert. denied, 224 Conn. 913 (1992). More colorfully, it has been stated
The "clean hands" principle is not a scarlet letter that must be worn to the grave by the sinner as a barrier to recognition of any of his legal rights, even with respect to transactions wholly unrelated to his offense. The maxim applies only to the particular transaction under consideration.
William Raveis Real Estate, Inc. v. Commissioner of Revenue Services, 44 Conn.Sup. 297, aff'd 43 Conn.App. 744 (1995).
19. With these principles in mind, it is immediately apparent, for at least two reasons, that Mr. Ursini could not have based a successful unclean-hands defense upon Zappone Co.'s alleged mishandling of Capital Ventures' $250,000.00 deposit in this case, and thus that Mr. Zappone's alleged perjury on that subject could not conceivably have deprived him of material evidence in support of such a defense:
a. First, of course, the only victims of any alleged misuse of funds from the escrowed Capital Ventures deposit, if such misconduct occurred, were the two corporate defendants, for which the deposit was to have been held pending the consummation of the Capital Ventures deal under the amended CV Agreement. They, not Mr. Ursini, were the parties to that Agreement and the Brokerage Agreements, for which the allegedly mishandled deposit was being held in escrow, and thus they, not he, are the only parties which could conceivably have based a claim of unclean hands upon the mishandling of the deposit.
b. Secondly, however, and even more importantly, even if Mr. Ursini could somehow establish that he was a real party in interest with respect to the allegedly mishandled deposit — such as by admitting, against his self-interest, that he was the alter ego of the defendant corporations — any proven mishandling of that deposit by Zappone Co. could only support a defense of unclean hands with respect to the particular transaction under consideration, to wit: the Capital Ventures deal under the amended CV Sales Agreement, to which he personally was not a party, pursuant to which the deposit had been made. Since that transaction, for reasons previously stated in Paragraph 15 of this Memorandum Order, is not the same transaction as that which underlies Zappone Co.'s challenged CUTPA claim against Mr. Ursini, and Zappone Co.'s right to proceed against Mr. Ursini on that claim is not at all based upon any of the alleged misconduct by which he claims that it acted with unclean hands, Mr. Ursini's present claim — that Mr. Zappone's perjurious denial of such misconduct in his testimony at trial concealed evidence from him that would have supported such a defense — is totally unfounded. Just as it cannot reasonably be argued that the challenged testimony contributed materially to the Court's verdict and judgment against Mr. Ursini under CUTPA because such testimony did not relate to that portion of his proven conduct upon which the CUTPA claim was based, it cannot reasonably be argued that any wilful misconduct by Zappone Co. while engaging in such misconduct furnishes an appropriate, non-collateral basis for invoking the clean-hands doctrine to defeat that CUTPA claim.
20. For all of the foregoing reasons, the Court hereby concludes that the Instant Motion must be DENIED.
IT IS SO ORDERED THIS 10th DAY OF OCTOBER 2007.