ASSOCIATION RESOURCES, INC. v. WALL

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11 U.S.C. § 554 does not apply because he never received a discharge in bankruptcy, or its "`functional equivalent'" but, rather, his bankruptcies were dismissed pursuant to 11 U.S.C. § 1307 (c) without any administration. Instead, the plaintiff claims, the effect of a dismissal pursuant to 11 U.S.C. § 1307 (c) is governed by 11 U.S.C. § 349 (b) (3), which is intended to restore the parties to their status at the commencement of the proceedings. Thus, the plaintiff contends that the claims properly revested in him upon the dismissal of the bankruptcy petition, and he, therefore, has standing to maintain this action. We agree with the plaintiff.

Section 554 of title 11 of the United States Code provides: "(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
"(b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
"(c) Unless the court orders otherwise, any property scheduled under section 521 (1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of section 350 of this title.
"(d) Unless the court orders otherwise, property of the estate that is not abandoned under this section and that is not administered in the case remains property of the estate."

Section 1307 (c) of title 11 of the United States Code provides: "Except as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including —
"(1) unreasonable delay by the debtor that is prejudicial to creditors;
"(2) nonpayment of any fees and charges required under chapter 123 of title 128;
"(3) failure to file a plan timely under section 1321 of this title;
"(4) failure to commence making timely payments under section 1326 of this title;
"(5) denial of confirmation of a plan under section 1325 of this title and denial of a request made for additional time for filing another plan or a modification of a plan;
"(6) material default by the debtor with respect to a term of a confirmed plan;
"(7) revocation of the order of confirmation under section 1330 of this title, and denial of confirmation of a modified plan under section 1329 of this title;
"(8) termination of a confirmed plan by reason of the occurrence of a condition specified in the plan other than completion of payments under the plan;
"(9) only on request of the United States trustee, failure of the debtor to file, within fifteen days, or such additional time as the court may allow, after the filing of the petition commencing such case, the information required by paragraph (1) of section 521;
"(10) only on request of the United States trustee, failure to timely file the information required by paragraph (2) of section 521; or
"(11) failure of the debtor to pay any domestic support obligation that first becomes payable after the date of the filing of the petition."

"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. . . . [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . Because a determination regarding the trial court's subject matter jurisdiction raises a question of law, our review is plenary." (Citations omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-14, 982 A.2d 1053 (2009).

Commencement of a bankruptcy proceeding creates an estate that comprises "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541 (a) (1). The debtor must file a formal statement with the Bankruptcy Court including a schedule of his or her assets and liabilities. See 11 U.S.C. § 521 (a) (1) (B) (i). The assets, which become the property of the bankruptcy estate, include all causes of action belonging to the debtor that accrued prior to the filing of the bankruptcy petition. See, e.g., In re Jackson, 593 F.3d 171, 176 (2d Cir. 2010). A cause of action becomes a part of the bankruptcy estate even if the debtor fails to schedule the claim in his petition. See, e.g., Rosenshein v. Kleban, 918 F. Sup. 98, 103 (S.D.N.Y. 1996). "Property that is scheduled pursuant to 11 U.S.C. § 521 (1), but not administered by the plan, is abandoned to the debtor by operation of law at the close of the bankruptcy case. See 11 U.S.C. § 554 (c). By contrast, property that is not formally scheduled is not abandoned and therefore remains part of the estate. See 11 U.S.C. § 554 (d). . . ." Rosenshein v. Kleban, supra, 102-103. "Courts have held that because an unscheduled claim remains the property of the bankruptcy estate, the debtor lacks standing to pursue the claims after emerging from bankruptcy, and the claims must be dismissed." Id., 103.

We agree with the plaintiff that 11 U.S.C. § 554 does not deprive him of standing with respect to his counterclaim, and that, because of the dismissal pursuant to 11 U.S.C. § 1307 (c); see footnote 24 of this opinion; 11 U.S.C. § 349 (b) (3) is dispositive of the defendant's subject matter jurisdiction claim in this appeal. Section 349 (b) (3) of title 11 of the United States Code provides in relevant part: "Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title . . . (3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title." (Emphasis added.) "The basic purpose of . . . [ 11 U.S.C. § 349 (b)] is to undo the bankruptcy case, as far as practicable, and to restore all property rights to the position in which they were found at the commencement of the case." (Internal quotation marks omitted.) In re Randall, 358 B.R. 145, 168 (Bankr. E.D. Pa. 2006), quoting H. Rep. No. 95-595, p. 338 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6294; see also Anquillare, Lipnicki, Ruocco Co. v. VCR Realty Associates, 72 Conn. App. 821, 824, 808 A.2d 682 (2002) ("after the dismissal of the bankruptcy petition, the bankruptcy estate revested in the [entity that had filed a petition for protection against creditors]"). "Following this legislative background, bankruptcy courts have observed . . . that the dismissal of a bankruptcy case should [reestablish] the rights of the parties as they existed when the petition was filed. . . . Indeed, unless the court indicates otherwise, the general effect of an order of dismissal is to restore the status quo ante; it is as if the bankruptcy petition had never been filed." (Internal quotation marks omitted.) In re Randall, supra, 168.

With no Connecticut case law directly on point, we agree with the plaintiff's reliance on, inter alia, B.N. Realty Associates v. Lichtenstein, supra, 21 App. Div. 3d 793, in support of the proposition that, under 11 U.S.C. § 349 (b) (3), the failure to disclose a cause of action in bankruptcy proceedings does not preclude the assertion of that claim in proceedings instituted after the dismissal of the bankruptcy proceedings. In B.N. Realty Associates v. Lichtenstein, supra, 798, the First Department of the Appellate Division of the New York Supreme Court concluded that, when the Bankruptcy Court dismisses the debtor's petition, 11 U.S.C. § 349 (b) (3) operates to "restor[e] his standing to assert his alleged counterclaims, defenses and offsets in this action, notwithstanding his failure (which we obviously do not condone) to disclose such matters in the bankruptcy case. . . ." (Citation omitted.) Significantly, the New York court distinguished Kunica v. St. Jean Financial, Inc., supra, 233 B.R. 46, a case that the defendant in the present case relies upon in support of its contention that the undisclosed claims did not revest in the plaintiff. The New York court relied on the federal District Court's observation that the debtor in Kunica had "arguably obtained the functional equivalent of a discharge" because it had "obtained its dismissal after its [bankruptcy] case was fully administered and all of its assets scheduled. . . ." (Citation omitted; internal quotation marks omitted.) B.N. Realty Associates v. Lichtenstein, supra, 798, quoting Kunica v. St. Jean Financial, Inc., supra, 55. In contrast, the debtor in B.N. Realty Associates had not "`obtained the functional equivalent of a discharge,'" as his assets had not been administered or his debt restructured prior to the dismissal. B.N. Realty Associates v. Lichtenstein, supra, 798. Thus, we conclude that the plaintiff in the present case, like the debtor in B.N. Realty Associates, has standing to assert this counterclaim because the Bankruptcy Court had dismissed his petitions prior to their administration. See also Dance v. Louisiana State University Medical Center, 749 So. 2d 870, 873-74 (La. App. 1999) (rejecting claim that plaintiffs' failure to schedule cause of action as asset in chapter 13 bankruptcy proceeding caused it to remain part of bankruptcy estate pursuant to 11 U.S.C. § 554 after voluntary dismissal of proceeding, and concluding that they could pursue it under 11 U.S.C. § 349 [b] [3]), writ denied, 759 So. 2d 76 (La. 2000). The trial court, therefore, properly denied the defendant's motion to dismiss the plaintiff's revised counterclaim for lack of standing.

We disagree with the defendant's reliance on Dana Investment Corp. v. Robinson Cole, Superior Court, judicial district of New Britain, Docket No. X03-CV-00-0505126-S (March 8, 2001), in support of its claim that the plaintiff lacks standing because of his failure to schedule his claims herein as assets in the bankruptcy petitions. Dana Investment Corp. is distinguishable because in that case, the bankruptcy petition was not dismissed, but, rather, converted from a chapter 11 to a chapter 7 case, and the Bankruptcy Court then rendered a final decree and closed the case. Id.

The defendant contends that B.N. Realty Associates v. Lichtenstein, supra, 21 App. Div. 3d 793, is distinguishable on the ground that the court "bolstered" its conclusion by noting that the bankruptcy petition therein at least disclosed the pendency of the underlying action itself, if not the counterclaims at issue. Id., 798 n. 2. As the defendant points out, there apparently is an interdepartmental split in New York's Appellate Divisions with respect to this issue, yet to be resolved by the state's highest court, as the Second Department has relied on that distinction to distinguish B.N. Realty Associates. Specifically, in Nationwide Associates, Inc. v. Epstein, 24 App. Div. 3d 738,739,809 N.Y.S.2d 118 (2005), appeal withdrawn, 7 N.Y.3d 899, 860 N.E.2d 70, 826 N.Y.S.2d 608 (2006), the Second Department of the Appellate Division relied on Kunica v. St. Jean Financial, Inc., supra, 233 B.R. 46, and Best v. MetLife Auto Home Ins. Co., 7 Misc. 3d 242, 793 N.Y.S.2d 682 (2004), also relied upon by the defendant herein, and concluded that: "The fact that [the plaintiff's] bankruptcy proceeding was dismissed rather than discharged does not alter the effect of [the plaintiff's] failure to disclose the [legal malpractice] claim it now seeks to assert here. . . ." (Citations omitted.) Nationwide Associates, Inc. v. Epstein, supra, 739. The court then distinguished B.N. Realty Associates, by noting that, in that case, "the petitioner in bankruptcy had disclosed the pendency of the action in which his counterclaims were asserted . . . [and] there is no evidence in this record from which we can conclude that the other parties to [the plaintiff's] bankruptcy proceeding would have been able, with some investigation, to discover the claims that [the plaintiff] failed to disclose." Id. In our view, the First Department's decision in B.N. Realty Associates is more persuasive. First, the Second Department's decision in Nationwide Associates, Inc., is a summary decision that is not informative with respect to the nature or progress of the bankruptcy proceedings therein, and fails to account for either 11 U.S.C. § 349 (b) (3) or the court's observation in Kunica that, in that case, the dismissal was the "functional equivalent" of a discharge. Accordingly, without a decision to the contrary from the New York Court of Appeals, we will follow the reasoning of the First Department's decision in B.N. Realty Associates. But see also Kilpatrick v. Kilpatrick, 205 S.W.3d 690, 702 (Tex App. 2006) ("we accept the reasoning of Kunica and hold that only disclosed assets will be revested to the debtor upon the dismissal of a bankruptcy proceeding"), review denied, 2007 Tex. LEXIS 181 (February 23, 2007).

B

The defendant also claims that the plaintiff's counterclaim is barred by the doctrine of judicial estoppel, which precludes parties from asserting claims that are inconsistent with those made in prior court proceedings. It claims that the trial court should have barred the plaintiff from pursuing his monetary claims because his failure to disclose such claims during the bankruptcy proceedings amounted to an affirmative misrepresentation to that court. In response, the plaintiff contends that the doctrine of judicial estoppel does not bar him from pursuing his claims since his petitions were dismissed and, therefore, neither the Bankruptcy Court nor his creditors relied on his nondisclosure to their detriment. The plaintiff also emphasizes that his failure to disclose the monetary claims against the defendant to the Bankruptcy Court was an unintentional error. We conclude that the trial court did not abuse its discretion by declining to invoke the doctrine of judicial estoppel to bar the plaintiff's counterclaim.

Because this case presents the first opportunity for this court or the Appellate Court to consider the doctrine of judicial estoppel as a matter of Connecticut law, we turn for guidance to the significant body of federal case law addressing this doctrine, and note that "[j]udicial estoppel prevents a party in a legal proceeding from taking a position contrary to a position the party has taken in an earlier proceeding. . . . [J]udicial estoppel serves interests different from those served by equitable estoppel, which is designed to ensure fairness in the relationship between parties. . . . The courts invoke judicial estoppel as a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings." (Citations omitted; internal quotation marks omitted.) Simon v. Safelite Glass Corp., 128 F.3d 68, 71 (2d Cir. 1997); see also, e.g., New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (judicial estoppel "protect[s] the integrity of the judicial process . . . by prohibiting parties from deliberately changing positions according to the exigencies of the moment" [citation omitted; internal quotation marks omitted]).

See David M. Somers Associates, P.C. v. Kendall, 123 Conn. App. 31, 36-37, A.2d (2010) ("It is unclear whether the doctrine of judicial estoppel has officially been adopted in Connecticut. . . . [W]e need not decide that question today." [Citation omitted.]); Dougan v. Dougan, 114 Conn. App. 379, 390 n. 14, 970 A.2d 131 (declining to reach issue because of parties' failure to raise it), cert. granted in part on other grounds, 292 Conn. 920, 974 A.2d 721 (2009); SKW Real Estate Ltd. Partnership v. Mitsubishi Motor Sales of America, Inc., 56 Conn. App. 1, 8-9 and 8 n. 6, 741 A.2d 4 (1999) (noting lack of factual basis for application of doctrine), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000).

"Typically, judicial estoppel will apply if: 1) a party's later position is clearly inconsistent with its earlier position; 2) the party's former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel. . . . We further limit judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain." (Citation omitted; internal quotation marks omitted.) DeRosa v. National Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010). Thus, courts generally will not apply the doctrine if the first statement or omission "was the result of a good faith mistake . . . or an unintentional error." (Citations omitted.) Simon v. Safelite Glass Corp., supra, 128 F.3d 73.

A party who fails to schedule a cause of action as an asset in a bankruptcy proceeding may create an inconsistency subject to the doctrine of judicial estoppel that would preclude it from bringing that cause of action subsequent to the bankruptcy. See, e.g., Galin v. Internal Revenue Service, 563 F. Sup. 2d 332, 338-39 (D. Conn. 2008). This is because "the integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets. The courts will not permit a debtor to obtain relief from the [B]ankruptcy [C]ourt by representing that no claims exist and then subsequently to assert those claims for his own benefit in a separate proceeding. The interests of both the creditors, who plan their actions in the bankruptcy proceeding on the basis of information supplied in the disclosure statements, and the [B]ankruptcy [C]ourt, which must decide whether to approve the plan of reorganization on the same basis, are impaired when the disclosure provided by the debtor is incomplete." Rosenshein v. Kleban, supra, 918 F. Sup. 104.

"Because the rule is intended to prevent improper use of judicial machinery . . . judicial estoppel is an equitable doctrine invoked by a court at its discretion. . . ." (Citation omitted; internal quotation marks omitted.) New Hampshire v. Maine, supra, 532 U.S. 750; see also Galin v. Internal Revenue Service, supra, 563 F. Sup. 2d 339 (same). Accordingly, our review of the trial court's decision not to invoke the doctrine is for abuse of discretion. See, e.g., Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010); Williams v. Boeing Co., 517 F.3d 1120, 1134 (9th Cir. 2008).

The plaintiff fully acknowledges his failure to disclose his monetary claims against the defendant to the Bankruptcy Court in both bankruptcy cases. We agree with the plaintiff that the trial court did not abuse its discretion in declining to utilize the doctrine of judicial estoppel to preclude the counterclaim, as courts generally will not apply the doctrine if the first statement or omission "was the result of a good faith mistake . . . or an unintentional error." (Citations omitted.) Simon v. Safelite Glass Corp., supra, 128 F.3d 73; In re Andrews, 385 B.R. 496, 502 (Bankr. D. Conn. 2008). The defendant failed to develop the record on this issue further at the hearing before the trial court on its motion to dismiss, and has not pointed to any evidence contradicting the plaintiff's assertion that he did not realize that he was supposed to list this counterclaim as an asset in the bankruptcy proceeding, and was not advised to that effect by his bankruptcy attorney. Moreover, given the dismissals of the plaintiff's bankruptcy petitions, there is neither a risk of inconsistent results between the state and federal courts, nor any indication that either the Bankruptcy Court or the plaintiff's creditors, who did not include among them the defendant, were prejudiced by that nondisclosure. Accordingly, we conclude that the trial court did not abuse its discretion by declining to invoke the doctrine of judicial estoppel.

We recognize that there is a body of federal case law that is "hostile to an inadvertence or good faith mistake exception to judicial estoppel. In the context of nondisclosure of pending claims to a bankruptcy court, several circuit courts have held that failure to fully disclose such claims will only be deemed inadvertent or due to mistake when either the debtor has no knowledge of the claims or no motive to conceal the claims." Galin v. Internal Revenue Service, supra, 563 F. Sup. 2d 340, citing, inter alia, Eastman v. Union Pacific Railroad Co., 493 F.3d 1151, 1158 (10th Cir. 2007); Barger v. Cartersville, 348 F.3d 1289, 1296 (11th Cir. 2003); see also Galin v. Internal Revenue Service, supra, 341 ("[c]ourts have inferred the absence of mistake at the summary judgment stage when a debtor has knowledge of the claim and motive to conceal it"); Galin v. Internal Revenue Service, supra, 341 ("legal advice and ignorance of the law are not defenses to judicial estoppel"). But see Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 364 (4th Cir. 1996) (concluding that "policy considerations militate against adopting a rule that the requisite intent for judicial estoppel can be inferred from the mere fact of nondisclosure in a bankruptcy proceeding" and noting that "[w]hile we by no means denigrate the importance of full disclosure or condone nondisclosure in bankruptcy proceedings, we are unwilling to treat careless or inadvertent nondisclosures as equivalent to deliberate manipulation when administering the `strong medicine' of judicial estoppel"). Given the lack of evidence in the record with respect to any manipulative intent by the plaintiff, and the defendant's failure in its principal or reply briefs to cite any of the cases limiting the availability of the inadvertence or good faith exceptions to judicial estoppel in the bankruptcy context, we decline to rely on them as a basis for upsetting the trial court's exercise of its discretion.

II

We next turn to the principal issue in this appeal, namely, the defendant's claim that the bonuses claimed by the plaintiff under § 2.2 (b) of the employment agreement are not wages as defined by § 31-71a (3). Relying primarily on Weems v. Citigroup, Inc., 289 Conn. 769, 961 A.2d 349 (2008), the defendant contends that the bonuses are not wages because they were based entirely on the profitability of the Digital Group, and were not connected directly with the plaintiff's personal labor or services. The defendant characterizes the bonuses as a profit sharing mechanism, and emphasizes that the Digital Group's "profit would result from the efforts of other employees, from the payments made [by the defendant's clients] for receiving [the] Digital [Group] services, and by minimizing or eliminating expenses within [the] Digital [Group]. Whether [the plaintiff] ever showed up for work did not dictate the bonus amount or his right to receive a payment . . . [which] relied on a formula and a calculation which had no connection with [the plaintiff's] performance." In response, the plaintiff emphasizes the remedial purpose of the wage statutes; Mytych v. May Dept. Stores Co., 260 Conn. 152, 160, 793 A.2d 1068 (2002); and contends that the wage statutes must be liberally construed in favor of employees. The plaintiff also relies on New York case law, which we followed in Weems, and contends that a contractually mandated, nondiscretionary bonus calculated under a predetermined formula is subject to the wage statutes, and emphasizes that Weems should be limited to the context of discretionary bonuses. Guided in part by our recent decision in Ziotas v. Reardon Law Firm, P.C., 296 Conn. 579, A.2d (2010), we conclude that the trial court properly determined that the bonuses in the present case were wages because they were nondiscretionary and calculated in accordance with a precise formula set forth in § 2.2 (b) of the employment agreement.

"Whether a bonus constitutes a wage under § 31-71a (3) raises a question of statutory construction, which is a [question] of law, over which we exercise plenary review." (Internal quotation marks omitted.) Weems v. Citigroup, Inc., supra, 289 Conn. 778. We note, however, that "[i]n determining whether the plaintiff's . . . bonus[es are] included in [the] definition of wages, we do not write on a blank slate." Ziotas v. Reardon Law Firm, P.C., supra, 296 Conn. 587.

We begin then, with Weems, wherein we determined initially that the text of § 31-71a (3), which defines wages as "compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation," was ambiguous as to whether a bonus, even one "discretionary or not specifically tied to identifiable extra work performed by an employee, could be considered `compensation for labor or services rendered. . . .'" (Citation omitted.) Weems v. Citigroup, Inc., supra, 289 Conn. 779. Considering extratextual sources to determine the ambiguous statute's meaning; see General Statutes § 1-2z; we noted the absence of guidance in the legislative history and turned instead to New York case law that construed that state's similar wage statute. See Weems v. Citigroup, Inc., supra, 780-82, discussing, inter alia, Truelove v. Northeast Capital Advisory, Inc., 95 N.Y.2d 220, 738 N.E.2d 770, 715 N.Y.S.2d 366 (2000). In accordance with that body of case law, we concluded that "bonuses that are awarded solely on a discretionary basis, and are not linked solely to the ascertainable efforts of the particular employee, are not wages under § 31-71a (3)." Weems v. Citigroup, Inc., supra, 782. Applying that standard to the facts of Weems, we concluded that the terms of the bonuses at issue therein were "not wages subject to Connecticut's wage statutes . . . [because] [p]ayments under both the bonus and branch manager programs are purely discretionary." Id. We further rejected the claim that "branch managers had to achieve `specific goals' to receive the bonuses, thus rendering them compensation for services rendered"; id.; because the record indicated that "the bonus awards are tied to subjective factors such as diversity within a branch, and the profitability of the particular branches, which are factors not entirely predictable or within the control of the specific employee." Id.

In discussing Truelove v. Northeast Capital Advisory, Inc., supra, 95 N.Y.2d 220, we noted that the New York Court of Appeals had concluded that the bonus therein was not a wage because, "the `terms of the [firm's] bonus compensation plan did not predicate bonus payments upon [the employee's] own personal productivity nor give [the employee] a contractual right to bonus payments based upon his productivity. To the contrary, the declaration of a bonus pool was dependent solely upon his employer's overall financial success. In addition, [the employee's] share in the bonus pool was entirely discretionary and subject to the non-reviewable determination of his employer.' Id., 224. Thus, the [New York Court of Appeals] concluded that `the wording of the statute, in expressly linking earnings to an employee's labor or services personally rendered, contemplates a more direct relationship between an employee's own performance and the compensation to which that employee is entitled. Discretionary additional remuneration, as a share in a reward to all employees for the success of the employer's entrepreneurship, falls outside the protection of the statute.'" Weems v. Citigroup, Inc., supra, 289 Conn. 780-81.

Subsequently, in Ziotas v. Reardon Law Firm, P.C., supra, 296 Conn. 583-84, the plaintiff claimed that his former employer, a law firm at which he had been an associate attorney, had violated the wage statutes by failing to pay him his annual bonus, customarily paid in December, after he left the employ of the law firm in October, 1998. That bonus was entirely discretionary and "not calculated on the basis of any particular percentage of the [law firm's] income." Id., 583. We noted that Weems and the cases cited therein did not "address the situation in which the payment of a bonus was contractually required and only the amount of the bonus was discretionary"; id., 588-89; but followed Weems to conclude that "such a bonus does not constitute wages under § 31-71a (3) . . . [because] `the wording of the statute, in expressly linking earnings to an employee's labor or services personally rendered, contemplates a more direct relationship between an employee's own performance and the compensation to which that employee is entitled. Discretionary additional remuneration, as a share in a reward to all employees for the success of the employer's entrepreneurship, falls outside the protection of the statute.' . . . Although an employee may have a justified expectation of additional compensation when the employer is contractually obligated to give a bonus to the employee and any contractual conditions, such as the employer's annual profitability, are met, the relationship between performance and compensation is still attenuated if the amount of the bonus is discretionary and dependent on factors other than the employee's performance." (Citation omitted.) Id., 589.

The applicable employment agreement provided that the plaintiff was an employee at will, and that: "`Annual compensation shall be subject to review by the Board of Directors of [the law firm] on the anniversary of employment of [t]he Associate. Compensation shall be based, in part, on the following criteria:

"`a. Seniority in [the law firm],

"`b. Business generation,

"`c. Business productivity,

"`d. Quality of work/professional ability,

"`f. Participation in professional activities and pro bono work,

"`g. Noteworthy outside activities,

"`h. Loyalty and commitment to [the law firm].'" Ziotas v. Reardon Law

Firm, P.C., supra, 296 Conn. 583.

We emphasized, however, that an employee is not precluded from collecting a bonus that is contractually mandated, but indefinite in amount, under a breach of contract theory, despite the lack of relief available for such a bonus under the wage statutes. See Ziotas v. Reardon Law Firm, P.C., supra, 296 Conn. 591-92.

Guided by Ziotas and Weems, we conclude that the trial court properly determined that the bonuses in the present case were wages as defined by § 31-71e (3) because, under the employment agreement, they were entirely nondiscretionary, both as to whether they would be awarded, and the amount thereof. Under the employment agreement, the defendant was contractually bound to pay the bonus to the plaintiff. Additionally, the amount of the bonus, which derived from the net profitability of the Digital Group after expenses, was nondiscretionary because it was subject to calculation by applying a contractually mandated, precise formula set forth in § 2.2 (b) of the employment agreement. That formula was based on the budgets of the Digital Group, one of which, for fiscal year 2003-2004, was attached to the employment agreement as a schedule, and the other, for fiscal year 2004-2005, that was plainly cross-referenced therein. See footnote 6 of this opinion; see also Farricker v. Penson Development, Inc., United States District Court, Docket No. 07 Civ. 11191 (DAB), 2009 U.S. Dist. LEXIS 27484, *21-22 (S.D.N.Y. March 31, 2009) (bonus payments for identifying and consummating real estate deals were wages when contract "clearly laid out the circumstances under which [they] were to be paid; both how much and when, and did not involve management discretion so as to render them incentive compensation," and payments were reduced by base salary); Fiorenti v. Central Emergency Physicians, P.L.L.C., 187 Misc. 2d 805, 808-809, 723 N.Y.S.2d 851 (2001) (bonus was wage when contract set forth formula for calculating bonus that "takes into account the employee's personal productivity" by measuring contribution to billing as offset by expenses because "[t]he standard to be applied for entitlement to a bonus is objective and not subject to [the employer's] discretion or whim"), rev'd in part on other grounds, 305 App. Div. 2d 453, 762 N.Y.S.2d 402 (2003). The defendant relies, however, on our statement in Weems v. Citigroup, Inc., supra, 289 Conn. 782, that bonuses are not wages under § 31-71a (3) if they are "not linked solely to the ascertainable efforts of the particular employee. . . ." The defendant contends that the bonuses were based on the productivity of the Digital Group as a whole, and that there is no "evidence directly linking those results solely" to the efforts of the plaintiff. We disagree. First, we reiterate that, unlike the present case, in Weems, both the awarding of a bonus, and the amount thereof, were entirely discretionary. Weems v. Citigroup, Inc., supra, 782. Furthermore, this narrow reading of Weems does not recognize the nature of the plaintiff's employment as a senior level, executive manager of one of the defendant's divisions, with the bonus tied directly to the success of that specific division, rather than the performance of the defendant as a whole. Although the profitability of any business entity depends in no small part on the performance of that organization's employees, schedule 3.2 of the employment agreement, as well as the parties' testimony, demonstrates that the plaintiff was employed primarily to manage the Digital Group's employees and operations. As reflected in the trial court's finding that the bonus "is tied into achievement of better work performance on the part of [the plaintiff] to obtain a higher profit which results in a higher bonus," the requisite "ascertainable efforts" are reflected in the plaintiff's execution of his management responsibilities vis-À-vis the employees and other resources of the Digital Group in order to accomplish the profitability goals of that particular division. Indeed, Peter Berry testified that the plaintiff could have accomplished that task in multiple ways, including reducing costs, raising prices and generating more business. Put differently, to conclude that the bonus is not a wage because not every dollar earned by the Digital Group was directly attributable to the plaintiff's labors would be to ignore the realities of his executive-level managerial position, which was to be directly and solely responsible for the profitability of that division.

We note that the plaintiff was the defendant's only employee with a contract that gave him an established right to a particular bonus. Peter Berry testified that the defendant's other employees received bonuses, but that those bonuses were not preestablished by contract. Moreover, Suzanne Berry testified that the structure of the plaintiff's bonus ultimately became infeasible, as it gave the plaintiff an incentive to act in his own self-interest to increase his own bonus by either overcharging clients or being less generous with the compensation of the staff assigned to the Digital Group.

If we were to agree with the defendant's reading of Weems v. Citigroup, Inc., supra, 289 Conn. 780-82, then no management level employee overseeing the work of other employees would ever be entitled to prevail under the wage statutes when bringing a claim to recover an unpaid bonus. There is no indication in the language of the wage statutes or their legislative history that the legislature intended to exclude all management level employees. Compare General Statutes § 31-71a (2) (defining "`[e]mployee'" for purposes of wage act as "any person suffered or permitted to work by an employer"), with General Statutes § 31-58 (f) (defining "`[e]mployee'" for purposes of minimum fair and overtime wage statute as, inter alia, "any individual employed or permitted to work by an employer but shall not include . . . an individual employed in a bona fide executive, administrative or professional capacity as defined in the regulations of the Labor Commissioner"). We therefore decline the defendant's apparent invitation to do so.

Thus, the plaintiff's role as the manager of a specific division, and the relationship of the bonus to the financial success of that division, rather than to the success of the defendant as a whole, renders inapposite case law considering bonuses not to be wages because they were tied to the employer's overall success. See, e.g., Ziotas v. Reardon Law Firm, P.C., supra, 296 Conn. 589. Accordingly, we find misplaced the defendant's emphasis on the plaintiff's testimony that his bonus amount bore no relation to the number of hours that he worked per week, specifically, that his bonus would be the same if he worked ten hours, or eighty, in a given week.

The plaintiff's contract thus established the necessary link between the plaintiff's efforts and the mandated bonus. See Dallenbach v. Mapco Gas Products, Inc., 459 N.W.2d 483, 488 (Iowa 1990) (district manager's annual bonus was wage when contractually based on percentage of district's profits with adjustment by formula, and "clearly was part of the compensation owed him for his labor or services"); Kvidera v. Rotation Engineering Mfg. Co., 705 N.W.2d 416, 423 (Minn. App. 2005) (company president's bonus was statutory wage because it was "integral and negotiated part of his compensation package" and his "services contributed to [the company's] profitability, and [the company] received the benefit of [the president's] work product"); Suess v. Lee Sapp Leasing, Inc., 229 Neb. 755, 757, 762-63,428 N.W.2d 899 (1988) (leasing manager's bonus was statutory wage when his contract granted him, inter alia, base salary plus 10 percent of employer's profits according to bonus formula); Ives v. Manchester Subaru, Inc., 126 N.H. 796, 800, 498 A.2d 297 (1985) (automobile dealership manager's entitlement to percentage of dealer profits was wage because "[i]t is obvious that the parties' agreement for a share of profits was intended to provide compensation for the [manager's] labor and services, and it clearly may fall within the [wage] statute's reference to compensation calculated on some `other basis'"); but cf. Highhouse v. Midwest Orthopedic Institute, P.C., 807 N.E.2d 737, 740 (Ind. 2004) (A surgeon's bonus, provided for by contract, was not a statutory wage because it "turned on both [the surgeon's] productivity and also on `expenses of [the multiphysician practice's] operations,' presumably allocated based on revenue. [The surgeon] had no control over most of these expense items and they obviously affected [the practice's] bottom line."). Thus, we conclude that the bonus in the present case, which was nondiscretionary and narrowly tailored to the success of the corporate division over which the plaintiff had direct supervisory authority, was a wage as defined by § 31-73a (3).

III

The defendant next claims that the trial court improperly construed the employment agreement in calculating the bonus amounts for the second and third bonuses. Pointing to plaintiff's exhibit four, which is the Digital Group's audited financial statement for the fiscal year of July 1, 2004, to June 30, 2004, the defendant contends that, with respect to the second bonus period, which covers the period from January 1, 2004, to June 30, 2004, the trial court improperly relied on plaintiff's exhibit nine, the budget schedule 2.2 attached to the employment agreement, and awarded the plaintiff $50,329, because the plaintiff had claimed entitlement only to a bonus of $31,063. In response, the plaintiff contends that the trial court properly awarded him $50,329 for the second bonus and $67,397 for the third bonus pursuant to the clear and unambiguous terms of the employment agreement, under which the defendant was to pay him 100 percent of the Digital Group's net profit after the payment of expenses budgeted on a semiannual basis, as set forth in a schedule calculated by the defendant itself. The plaintiff contends that the defendant's argument that the contract terms contemplate calculations based on the final audited expenses is incorrect and simply an expression of buyer's remorse, and is inconsistent with the contract language drafted by the defendant itself, a sophisticated commercial party with superior bargaining power. We agree with the plaintiff and conclude that the trial court properly calculated his bonuses.

The plaintiff also notes that the defendant's course of conduct, in agreeing with the plaintiff's request for a first bonus of $28,833 in February, 2004, demonstrates the propriety of his calculation method under the contract. If we find § 2.2 (b) of the employment agreement ambiguous, we agree that the parties' course of dealing may be used to aid in its interpretation. See Small Business Transportation, Inc. v. ABC Stores, LLC, 96 Conn. App. 14, 19, 899 A.2d 73 (2006); see also Highhouse v. Midwest Orthopedic Institute, P.C., supra, 807 N.E.2d 739 (relying on undisputed evidence concerning employer's course of conduct in calculating and paying bonuses in construing posttermination bonus provision in employment contract).

We note briefly the following additional relevant facts and procedural history. The applicable contractual provision is § 2.2 (b) of the employment agreement, which provides: "[The plaintiff] shall be paid bonuses on February 15, 2004; August 15, 2004; February 15, 2005 and; August 6, 2005 based upon the overall profitability of the Digital Group from July 1, 2003 through June 20, 2005. Said bonus amounts shall be calculated based upon the 2003-04 Digital Group budget as set forth in Schedule 2.2 and the 2004-05 budget which will be established in the [s]pring of 2004. [The plaintiff's] bonus shall be equal to the annual income received by the Digital Group less $75,000 for fiscal year 2003-2004 and $80,000 for fiscal year 2004-2005, and less the commissions paid pursuant to [p]aragraph (a) above. [The plaintiff's] bonus will be determined after the Digital Group's expenses are paid for the preceding six month period and after [the defendant] receives its six months prorated income. [The plaintiff] shall then receive the remaining profit." (Emphasis added.)

The trial court concluded that the plaintiff was entitled to a second bonus of $50,329, which was due on August 15, 2004. In calculating that bonus, the trial court relied on the plain language of § 2.2 (b) of the employment agreement, and the parties' application of it to determine that the plaintiff was owed $28,833 for the first bonus period. The trial court then credited the plaintiff's testimony and utilized the Digital Group financial statement prepared by Suzanne Berry for purposes of the bonus negotiations, concluding that the plaintiff was entitled to $50,329, which is the projected annual profit, less the $28,833 already paid for the first half of the fiscal year and the $8000 that the plaintiff already had been paid toward the second bonus. Moreover, the trial court rejected the defendant's claim that it was improper to calculate the bonus using the budget, rather than the final audited figures. The trial court concluded that the defendant was "bound by" its choice of the word "budget" in drafting the employment agreement, ostensibly because the final audited statement "would not be ready in time for the scheduled bonus payments." Applying that same formula to plaintiff's exhibit four, which served as the budget for the third bonus period from July 1, 2004, through December 31, 2004, due on February 15, 2005, the trial court concluded that the plaintiff was entitled to a bonus of $67,397.

The plaintiff testified that he had not consulted with the Berrys in preparing this document because, by that time, his relations with them had deteriorated and they did not want to discuss his bonuses any further.

The trial court noted that, in bonus negotiations, the plaintiff originally had countered the defendant's offer of $16,346 with a proposal of $20,000, despite the fact that the plaintiff knew that he was entitled to more. The trial court did not consider the plaintiff's counteroffer dispositive, noting that the budget document indicated that he was entitled to $67,397, and the lower counteroffer was motivated by his need for immediate cash flow in light of personal financial problems that he was experiencing at that time.

"The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . ."[I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous. . . . If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review. . . . When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous." (Citations omitted; internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 710-11, 980 A.2d 880 (2009).

We conclude at the outset that the trial court properly determined that, under the plain language of § 2.2 (b) of the employment agreement, the plaintiff's bonus was to be calculated on the basis of the Digital Group's scheduled budgets, one of which was appended to the agreement as schedule 2.2, rather than on the basis of the final audited figures. The ordinary meaning of the term "budget" as a noun contemplates a forward-looking financial plan, based on estimates. See Merriam-Webster Collegiate Dictionary (10th Ed. 1993) (defining "budget" as, inter alia, "a statement of the financial position of an administration for a definite period of time based on estimates of expenditures during the period and proposals for financing them" or "a plan for the coordination of resources and expenditures" or "the amount of money that is available for, required for, or assigned to a particular purpose"); cf. id. (defining "audit" as a "formal examination of an organization's . . . accounts or financial situation" or "the final report of an audit"). We agree with the plaintiff that the defendant, as drafter of the employment agreement, could have exercised its superior bargaining position to draft a more favorable provision. See Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 741, 941 A.2d 309 (2008) (noting "the superior bargaining power of an employer that enters into an employment contract with an employee" given "the economic compulsion facing those in search of employment" [internal quotation marks omitted]). We further agree that the trial court's assessment of the defendant's interpretation of the employment contract as nothing more than a case of buyer's remorse following the Berrys' realization that the agreement "was less favorable to them than they thought," was reasonable.

We next turn to the trial court's application of the contractual provision to calculate the plaintiff's bonuses, and note that "[t]he determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. . . . A factual finding may be rejected by this court only if it is clearly erroneous. . . . A finding is clearly erroneous 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.) Jay v. A A Ventures, LLC, 118 Conn. App. 506, 518, 984 A.2d 784 (2009), quoting Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 68-69, 717 A.2d 724 (1998).

We conclude that the trial court's calculation of the damages was not clearly erroneous. Utilizing column I of plaintiff's exhibit nine, which Suzanne Berry had utilized during the defendant's discussions with the plaintiff for the purpose of calculating the second bonus, the trial court noted that the profit after expenses for the fiscal year was $87,162. Since the plaintiff already had received $28,833 for the first half of that fiscal year, the trial court properly concluded that he was entitled to an annual bonus for the remainder of that fiscal year of $50,329, which represented the difference between the Digital Group's profit of $87,162 and the bonus already paid, reduced further by the $8000 that the plaintiff already had received. See footnote 8 of this opinion. The trial court also reasonably could have credited the plaintiff's testimony that, given the plain language of § 2.2 of the employment agreement, as well as the fact that $30,000, or 30 percent of his salary, already had been allocated to the expenses of the Digital Group, the defendant should not have included additional salary adjustments ultimately to reduce the bonus owed. Applying a similar calculation to plaintiff's exhibit four, the Digital Group's audited financial statement for the fiscal year July 1, 2004, to Association Resources, Inc. v. Wall June 30, 2005, the trial court properly found that the plaintiff was entitled to a bonus of $67,397. We conclude, therefore, that the trial court's bonus calculations were not clearly erroneous.

The defendant contends that the trial court's bonus calculations improperly are not based on an accounting of the Digital Group's actual profitability, and also do not account for Suzanne Berry's testimony that some of the figures utilized were derived from the plaintiff's overstatement of certain Digital Group revenues on the basis of, inter alia, overbilling clients. We note that the trial court expressly stated that the bonus payment deadlines set forth in § 2.2 (b) of the employment agreement essentially compelled the defendant to use the budgeted figures, rather than final audited numbers. With respect to the correctness of the figures on the reports, the defendant in essence asks us to retry the facts, which we decline to do. See, e.g., DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 441, 988 A.2d 351 (2010).

IV

Finally, we address the defendant's claims that the trial court improperly: (1) rejected its accord and satisfaction defense with respect to the second bonus; and (2) rejected its defense that the parties had entered into a substitute contract under which the plaintiff had waived his claim with respect to the third bonus.

A

The defendant first claims that the trial court improperly rejected the defendant's accord and satisfaction special defense with respect to the second bonus, claiming that: (1) it had proposed to the plaintiff a bonus payment of $8000; (2) the plaintiff accepted and processed this payment; and (3) this transaction discharged the defendant from any outstanding bonus payment obligation originally due on August 15, 2004. In response, the plaintiff contends that the trial court's rejection of the accord and satisfaction defense was not clearly erroneous because: (1) there was no good faith dispute about the amount owed; (2) he did not accept the defendant's offer of accord; and (3) he did not accept the bonus payment in full satisfaction of his claim for a greater bonus payment. We agree with the plaintiff that the trial court properly determined that he had not accepted the defendant's offer of accord.

For additional discussion regarding the amount proposed, see footnote 8 of this opinion and the accompanying text.

"When there is a good faith dispute about the existence of a debt or about the amount that is owed, the common law authorizes the debtor and the creditor to negotiate a contract of accord to settle the outstanding claim. . . . An accord is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor's existing duty. . . . Upon acceptance of the offer of accord, the creditor's receipt of the promised payment discharges the underlying debt and bars any further claim relating thereto, if the contract is supported by consideration. . . . Although the case law presents the more usual use of accord and satisfaction as a defense by the debtor against the creditor, it is evident that accord and satisfaction equally applies to both parties. Accord and satisfaction is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim and to perform the agreement. . . . Indeed, a validly executed accord and satisfaction precludes a party from pursuing any action involving the original, underlying claim. . . . The defendant bears the burden of proving accord and satisfaction when it is pleaded as a special defense." (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 277, 828 A.2d 64 (2003). "A contract of accord and satisfaction is sufficiently supported by consideration if it settles a monetary claim that is unliquidated in amount." County Fire Door Corp. v. C.F. Wooding Co., 202 Conn. 277, 282, 520 A.2d 1028 (1987).

A trial court's determination with respect to whether a claim has been discharged by accord and satisfaction is a question of fact subject to the clearly erroneous standard of review. Douthwright v. Northeast Corridor Foundations, 72 Conn. App. 319, 323-24, 805 A.2d 157 (2002); see also M.J. Daly Sons, Inc. v. West Haven, 66 Conn. App. 41, 48, 783 A.2d 1138 ("[w]hether a meeting of the minds has occurred is a factual determination"), cert. denied, 258 Conn. 944, 786 A.2d 430 (2001).

Having reviewed the record, we conclude that the trial court's finding that the defendant did not prove its special defense of accord and satisfaction with respect to the second bonus was not clearly erroneous. Even if we assume that the dispute between the parties over the amount owed was in good faith, and that the November 16, 2004 letter from the defendant to the plaintiff constituted an "offer of compromise" in the amount of $8000 and an amended employment contract, the trial court nevertheless found that the plaintiff had not accepted the defendant's offer of accord. Specifically, the trial court found that, although the plaintiff had received an $8000 payment from the defendant; see footnote 8 of this opinion; he "never signed [the proposed employment] contract amendment" and he "did not accept the exact terms of the compromise offered by [the defendant]." Moreover, the trial court credited the plaintiff's testimony at trial that he only "took the $8000 because he was in financial trouble and in no way agreed to that being the full satisfaction of his claim for bonus compensation." Because this factual finding is supported by the record, we decline to disturb the trial court's credibility determination and conclusion with respect to accord and satisfaction. See, e.g., Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 277-79.

B

The defendant also contends that the trial court improperly rejected its ninth special defense and concluded that the merger clause of the 2005 contract, which replaced the employment agreement, did not operate to "[negate] any claim for a bonus payable after the effective date of the substitute agreement," specifically the third bonus. In response, the plaintiff contends that the substitute contract special defense was "not clearly [pleaded] as such," and that the defendant's briefing at trial "rel[ied] only on the law of accord and satisfaction, not the law of substitute contracts or novations," and was not directed at the February 15, 2005 bonus. The plaintiff also contends that the trial court necessarily rejected this special defense because it found that the 2005 contract had a different scope — namely, his employment after January 3, 2005 — and, therefore, "easily subsisted with the wages that vested under the [employment agreement]." We agree with the plaintiff and conclude that the 2005 contract did not affect his rights to compensation under the 2003 employment agreement.

Specifically, the defendant relies on § 6.3 of the 2005 contract, which provides: "This [a]greement contains the entire understanding of the parties. There are no oral understandings, terms or conditions, and no party has relied upon any representative, express or implied, not contained in this [a]greement." The defendant then notes that the 2005 contract eliminated the bonus provision of the employment agreement and further reduced the plaintiff's duties.

"Parties may alter any term of an existing contract by entering into a subsequent contract. . . . The contract as modified becomes a new contract between the parties." (Citation omitted; internal quotation marks omitted.) Spicer v. Spicer, 33 Conn. App. 152, 159, 634 A.2d 902 (1993), cert. denied, 228 Conn. 920, 636 A.2d 850 (1994). "The meaning to be given subsequent agreements . . . depends on the intention of the parties. As intention is an inference of fact, the conclusion is not reviewable unless it was one which the trier could not reasonably make." (Internal quotation marks omitted.) Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 564, 559 A.2d 241 (1989).

We agree with the trial court's determinations that the language of the 2005 contract does not refer in any way to "bonuses under the 2003 [employment agreement]," and that, although the defendant could have drafted the 2005 contract in a way that would have required the plaintiff to "forgo his previously earned bonuses in consideration for his new employment contract," it simply failed to do so. Thus, because the language of the 2005 contract did not expressly address the defendant's obligations to pay wages earned during the third bonus period that had ended on December 31, 2004, prior to the effective date of the 2005 contract, we conclude that the trial court properly rejected the defendant's ninth special defense. See, e.g., Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 145, 709 A.2d 1075 (1998) (rejecting contract modification claim because "the language of the 1990 settlement agreement did not . . . supersede or extinguish the warranty obligations contained in the 1987 purchase agreement"); Spicer v. Spicer, supra, 33 Conn. App. 159 ("[t]he language of the memorandum of understanding when read together with the language of the buy-sell agreement provides sufficient foundation for the trial court reasonably to find that the memorandum of understanding only modified the provisions of the sale of the business clauses without modifying or abrogating the buy-sell agreement in toto").

The judgment is affirmed.

In this opinion the other justices concurred.