ROCQUE v. FARRICIELLI, No. HHD-CV-99-0591020S (Jul. 1, 2008)

BENTIVEGNA, J.

On March 17, 2008, the Marcus Law Firm filed a motion for release of funds. The motion relates to the stipulated judgment in Marcus Law Firm v. Farricielli, Superior Court, judicial district of New Haven, Docket No. CV 96 0392345, which provides that 20 percent of the defendant's net profits will be paid to the Marcus Law Firm, entitles the Marcus Law Firm to a portion of the funds that are being paid to the state pursuant to the "First Supplementary Post-Judgment Order on Consent" dated October 3, 2007 in the present action.

The Marcus Law Firm argues that, pursuant to a stipulated judgment, which was filed on March 8, 1999, and a lien securing that judgment, which was recorded on the North Haven land records on April 27, 1999, the Marcus Law Firm is entitled to 20 percent "of funds generated from the filling of or any other use or operation of the so-called Tire Pond." It essentially contends that because its lien "predates all fines and judgments of all parties to this litigation referenced in the First Supplementary Post-Judgment Order on Consent dated Oct. 3, 2007" its claims have priority to the funds in the court account, and, as a matter of equity, the court should order disbursement of those funds to the Marcus Law Firm in the amount due, or, in the alternative, order that, whenever the court trust account is disbursed, the Marcus Law Firm is entitled to priority over all fines, judgments and liens levied against the defendant, with the exception of municipal tax liens.

The plaintiff commissioner of environmental protection opposes this motion, arguing that the stipulated judgment and lien show that the Marcus Law Firm has no right to receive any funds from the trust account. The commissioner maintains that pursuant to the judgment and lien, the Marcus Law Firm is only entitled to 20 percent of the "net profits" of any funds from the disposal of tires or from the deposition CT Page 11128 of clean fill at the tire pond that defendants Farricielli, Hamden Salvage, or North Haven Tire Disposal actually receive. The commissioner maintains that the funds in the trust account are not "net profits" because Farricielli has not received them and may never receive them. He contends that the Marcus Law Firm stands in the same position as any other creditor that is not a party to the "First Supplementary Post-Judgment Order." He further argues that if the court allows the Marcus Law Firm to collect funds from the trust account, the funds will disappear and will not be available for the purpose for which they are intended, that is, closure of the tire pond. The commissioner maintains that the lien securing the Marcus Law Firm's judgment does not create any additional rights beyond securing the judgment, and that the judgment only entitles the Marcus Law Firm to 20 percent of the net profits that Farricielli actually receives. He maintains that the Marcus Law Firm is free to pursue a foreclosure action to enforce its judgment.

"A judgment rendered in accordance with . . . a stipulation of the parties is to be regarded and construed as a contract . . . A contract is to be construed as a whole and all relevant provisions will be considered together . . . In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn.App. 541, 555, 905 A.2d 1214, cert. denied, 280 Conn. 942, 912 A.2d 479 (2006). "A stipulated judgment is not a judicial determination of any litigated right . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement . . .

"In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together . . . The contract must be construed to give effect to the intent of the contracting parties . . . This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. [I]ntent CT Page 11129 . . . 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." (Citation omitted; internal quotation marks omitted.) Reichenbach v. Kraska Enterprises, LLC, 105 Conn.App. 461, 475-76, 938 A.2d 1238 (2008).

Under the terms of the stipulated judgment filed on March 8, 1999, the Marcus Law Firm was entitled, in addition to a judgment lien against certain real property in North Haven and certain other payments as set forth in the agreement, to payment in the amount of $38,788.18 by Farricielli and Hamden Salvage, Inc., in accordance with certain terms and conditions. In relevant part, those terms and conditions were as follows: "Beginning as of the date hereof and for a period of twenty-five (25) years from the date hereof the Defendants and Owner shall pay to Plaintiff within ten (10) days after the receipt of any funds twenty (20%) percent of the `Net Profits,' as hereinafter defined realized by any of Defendants, Owner, or any `Affiliate' of either Defendant or Owner from the filling of or any other use or operation of the so called Tire Pond at the Premises whether through repermitting for the disposal of tires, deposit of clean fill or otherwise. As used herein `Net Profits' shall mean profit before taxes as determined in accordance with generally accepted accounting principles, but excluding from all expense deductions, depreciation, amortization, any expenditure which would be capitalized in accordance with generally accepted accounting principles, salaries, bonuses, payments or distributions to the Defendant, Joseph J. Farricielli, his immediate family members and/or any Affiliate . . ." (Emphasis added.) Under the plain language of the stipulation, the Marcus Law Firm is entitled only to 20 percent of the net profits actually received by the defendant Farricielli or his affiliates, within ten days after those funds are received. The Marcus Law Firm does not contend that Farricielli or his affiliates have received any funds, but maintains that, in the interest of equity, the funds in the trust account should be disbursed to it because its claim has priority over the claims of the plaintiffs in this action. The Marcus Law Firm has offered no persuasive legal authority for its position, which is contrary to the intent of the parties expressed in the stipulation.

Moreover, the Marcus Law Firm's claim of priority has no legal basis in the context of this case. General Statutes § 52-380a, which provides for judgment liens on real property, merely allows a party to place a lien on real property to secure a judgment, which may be foreclosed in the event of nonpayment, and establishes the lienholder's priority over subsequent lienholders. It does not grant the lienholder CT Page 11130 any additional rights with respect to its right to collect funds from the defendant. Moreover, the stipulated judgment secured by the lien does not grant the Marcus Law Firm any such right. By its terms, the Marcus Law Firm is entitled to collect funds directly from Farricielli and Hamden Salvage, Inc., not from a court trust account or any other source from which Farricielli and Hamden Salvage have no right to obtain funds. Under the terms of the stipulated judgment, the Marcus Law Firm only has the right to collect 20 percent of the net profits that have been received by Farricielli or his affiliates.

For the foregoing reasons, the Marcus Law Firm's motion for release of funds is denied.

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