Thoma v. Oxford Performance Materials, Inc. ( 2014 )

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LYNNE A. THOMA v. OXFORD PERFORMANCE
MATERIALS, INC.
(AC 35313)
Alvord, Mullins and Lavery, Js.
Argued May 28—officially released September 23, 2014
(Appeal from Superior Court, judicial district of
Hartford, Peck, J.)
David R. Makarewicz, with whom, on the brief, was
Christopher L. Brigham, for the appellant (defendant).
Edward G. McAnaney, with whom, on the brief, were
Proloy K. Das and Erin E. Canalia, for the appellee
(plaintiff).
Opinion
MULLINS, J. The defendant, Oxford Performance
Materials, Inc., appeals from the judgment of the trial
court rendered in favor of the plaintiff, Lynne A. Thoma.
On appeal, the defendant claims that the trial court
erred in declining to enforce a subsequent employment
agreement between the parties. We conclude that the
court correctly held that the subsequent agreement the
defendant sought to enforce was not supported by con-
sideration, and, consequently, we affirm the judgment
of the trial court.
The court found the following relevant facts in its
memorandum of decision. The defendant is a corpora-
tion that manufactures high performance polymers. The
plaintiff was employed by the defendant beginning in
February, 2003. In May or June, 2006, the defendant
pursued new financing to advance its business. DSM
Venturing (DSM), a prospective investor, advised the
defendant that it wanted certain employees to enter
into employment contracts to ensure continuity within
the defendant’s company. On the basis of this advice,
the plaintiff and the defendant entered into an ‘‘Execu-
tive Employment Agreement’’ (first agreement) on June
12, 2006.1
The first agreement included the following relevant
provisions. The plaintiff was entitled to a $78,0002
annual base salary and various benefits. The plaintiff’s
initial employment period was twenty-four months and
was automatically renewed for twelve month terms.
The court found: ‘‘The defendant had the right to termi-
nate the [plaintiff’s employment] without cause with
sixty days written notice. If terminated without cause,
the contract provided that the defendant ‘shall pay to
the [plaintiff] all compensation accrued and unpaid up
to the effective date of termination plus the base salary
of the [plaintiff] that would be payable to the [plaintiff]
for the remainder of the then-current initial or renewal
term and six (6) months thereafter . . . .’ ’’ (Emphasis
in original.) Additionally, the plaintiff agreed not to
pursue employment with the defendant’s competitors
during her employment and for six months after her
employment had ended.
After the first agreement was executed, Richard
Steele, a managing member of another investor, Long-
meadow Capital (Longmeadow), informed Scott DeFel-
ice, the defendant’s chief executive officer, that he
considered an employment agreement with a monetary
component to be ‘‘too strong’’ and that there was no
need for it. Following this discussion, the defendant’s
board of directors decided to draft another agreement
that would protect the defendant’s intellectual property
and include a noncompete clause.
Then, on an unspecified date between June 12 and
June 20, 2006, the defendant presented a ‘‘Non-competi-
tion, Proprietary Information and Inventions
Agreement’’ (second agreement) to the plaintiff. Section
1.1 of the second agreement provided in relevant part:
‘‘Executive3 accordingly agrees that in the event that
the Executive’s employment relationship with the
[c]ompany terminates for any reason, whether volun-
tary or involuntary . . . Executive shall continue to
comply with the provisions of [s]ection 1.2 of this
[a]greement.’’ (Emphasis added; footnote added.) Sec-
tion 1.2 provided: ‘‘Executive agrees that [she] shall
not, during the period of [her] employment with the
[c]ompany, directly or indirectly seek, solicit, enter into
or engage in any employment, business, enterprise,
agreement or consulting arrangement with any other
person or entity, that is at that time engaged in, or that
has clear plans for future engagement in competition
with the [b]usiness of the [c]ompany . . . .’’ (Empha-
sis added.)
The second agreement additionally provided that the
defendant could ‘‘terminate the [plaintiff’s] employment
. . . at any time with or without cause and with or
without notice,’’ thus making her an at-will employee.
The second agreement included no mention of salary
or provision for termination compensation. Lastly, the
second agreement stated: ‘‘This agreement, together
with any attachments, contains the entire agreement of
the parties, and supersedes any prior or contemporane-
ous statements or understanding by or between the
parties.’’
The second agreement was executed on June 20,
2006. Pursuant to the first agreement’s terms, the plain-
tiff’s salary was increased from $65,000 to $78,000 on
or about July 1, 2006.
On November 20, 2007, the defendant terminated the
plaintiff from her employment. The plaintiff filed an
amended complaint alleging breach of contract and
fraud on March 23, 2009.4 The plaintiff alleged that the
defendant breached the first agreement’s terms by ter-
minating her employment without notice, cause, or ter-
mination pay. The defendant argued at trial that it did
not breach the terms of the first agreement because
the second agreement had superseded it.
After a trial to the court, the court issued its decision
on August 15, 2012. The court held that the first
agreement was supported by consideration and was
valid. The court additionally held that the second
agreement was not valid because it was not supported
by consideration.5 Consequently, the court concluded
that the second agreement did not supersede the first
agreement and that the plaintiff was entitled to termina-
tion compensation in accordance with the first
agreement’s terms. This appeal followed. Additional
facts will be set forth as necessary.
On appeal, the defendant argues that the court erred
by concluding that the first agreement, rather than the
second agreement, controlled.6 According to the defen-
dant’s argument, the second agreement was the only
enforceable agreement between the parties, as dictated
by the complete integration clause stating that the
agreement superseded any prior writings. The defen-
dant thus claims that the court erred in concluding that
there was no valid consideration to support the second
agreement. The defendant argues that (1) the second
agreement was supported by consideration because it
eliminated the plaintiff’s six month noncompete clause
that was contained in the first agreement, (2) the plain-
tiff’s increased chance for continued employment was
consideration, and (3) the second agreement listed a
recital of consideration, which the plaintiff failed to
dispute effectively. We will consider each of these argu-
ments in turn.
We begin our analysis by setting forth the relevant
legal standards. ‘‘Whether an agreement is supported
by consideration is a factual inquiry reserved for the
trier of fact and subject to review under the clearly
erroneous standard.’’ (Internal quotation marks omit-
ted.) Viera v. Cohen, 283 Conn. 412, 442, 927 A.2d 843(2007). ‘‘The conclusion drawn from the facts so found,
i.e., whether a particular set of facts constitutes consid-
eration in the particular circumstances, is a question
of law . . . and, accordingly, is subject to plenary
review.’’ (Citation omitted.) Willamette Management
Associates, Inc. v. Palczynski, 134 Conn. App. 58, 71,
38 A.3d 1212 (2012).
‘‘The doctrine of consideration is fundamental in the
law of contracts, the general rule being that in the
absence of consideration an executory promise is unen-
forceable.’’ (Internal quotation marks omitted.) Con-
necticut National Bank v. Voog, 233 Conn. 352, 366,
659 A.2d 172 (1995). ‘‘Put another way, [u]nder the law
of contract, a promise is generally not enforceable
unless it is supported by consideration.’’ (Internal quo-
tation marks omitted.) NSS Restaurant Services, Inc.
v. West Main Pizza of Plainville, LLC, 132 Conn. App.
736, 740–41, 35 A.3d 289 (2011). ‘‘A modification of an
agreement must be supported by valid consideration
and requires a party to do, or promise to do, something
further than, or different from, that which he is already
bound to do.’’ (Internal quotation marks omitted.) TD
Bank, N.A. v. M.J. Holdings, LLC, 143 Conn. App. 322,
332, 71 A.3d 541 (2013).
‘‘[C]onsideration is [t]hat which is bargained-for by
the promisor and given in exchange for the promise by
the promisee . . . . We also note that [t]he doctrine
of consideration does not require or imply an equal
exchange between the contracting parties. . . . Con-
sideration consists of a benefit to the party promising,
or a loss or detriment to the party to whom the promise
is made.’’ (Internal quotation marks omitted.) Martin
Printing, Inc. v. Sone, 89 Conn. App. 336, 345, 873 A.2d
232 (2005).
I
The defendant first argues that the second agreement
was supported by consideration because it eliminated
the six month post-employment prohibition on competi-
tion imposed under the first agreement and limited the
period of noncompetition to include only the time that
the plaintiff was employed by the defendant. We
disagree.
‘‘Section 71 of the Restatement (Second) of Contracts
relates the familiar legal sense of the term ‘consider-
ation’: ‘(1) To constitute consideration, a performance
or a return promise must be bargained for. (2) A perfor-
mance or return promise is bargained for if it is sought
by the promisor in exchange for his promise and is
given by the promisee in exchange for that promise.’ ’’
Mandell v. Gavin, 262 Conn. 659, 668, 816 A.2d 619(2003). Consideration, therefore, requires intent by the
parties to incur benefits or detriments at the time an
agreement is entered into. See Willamette Management
Associates, Inc. v. Palczynski, supra, 134 Conn. App.
70, 73 (determining whether contract was supported
by consideration ‘‘at the time that the parties entered
into the . . . agreement’’).
In addressing the second agreement’s noncompeti-
tion restriction, the court held that ‘‘[t]he language is
not clear as to whether the noncompetition [restriction]
continues indefinitely or whether it terminates immedi-
ately upon the termination of the plaintiff’s employ-
ment.’’ The court explained: ‘‘It appears in section 1.2
of the agreement that the plaintiff is only restricted
from competing with the defendant during the term of
her employment. Any clarity of intent is muddied by
the language in section 1.1 . . . .’’ The court thus con-
cluded: ‘‘Since she played no role in the drafting of the
[second] agreement, the court resolves the ambiguity
in favor of the plaintiff. By virtue of this agreement, the
plaintiff lost her rights to termination pay and gained
nothing in return.’’
The defendant contends that the court erred in treat-
ing the terms in §§ 1.1 and 1.2 as ‘‘ambiguous’’ rather
than ‘‘conflicting.’’ The defendant argues that the court
should have reconciled the two provisions and given
effect to the limited noncompetition duration found
in § 1.2 and not the indeterminate duration in § 1.1.
We disagree.
A
The parties dispute the standard of review for the
court’s finding of ambiguity. The defendant argues that
the finding of ambiguity must be reviewed de novo
because it was based exclusively upon the second
agreement’s language. The plaintiff argues that a clearly
erroneous standard of review is applicable because the
court found ambiguity only to determine whether the
second agreement was supported by consideration,
which is a factual determination. We agree with the
defendant regarding the standard of review.
De novo review traditionally has been applied to find-
ings of contractual ambiguity when a court undertakes
contractual construction. See, e.g., Barber v. Skip Bar-
ber Racing School, LLC, 106 Conn. App. 59, 66, 940
A.2d 878 (2008) (‘‘[w]hether contractual language is
ambiguous is a question of law and is subject to plenary
review’’). Additionally, in the context of contract inter-
pretation, ‘‘[w]here there is definitive contract language,
the determination of what the parties intended by their
contractual commitments is a question of law.’’ (Inter-
nal quotation marks omitted.) Tallmadge Bros., Inc. v.
Iroquois Gas Transmission System, L.P., 252 Conn.
479, 495, 746 A.2d 1277 (2000). In the present case, the
court’s conclusion that the noncompetition restriction’s
duration was ambiguous was based solely on the second
agreement’s language. Consequently, we review de
novo the court’s holding that the duration of the non-
competition restriction found in §§ 1.1 and 1.2 was
ambiguous.
B
We next consider whether the court correctly deter-
mined that the noncompetition restriction was ambigu-
ous. ‘‘[A] contract is ambiguous if the intent of the
parties is not clear and certain from the language of
the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Citations omitted; internal
quotation marks omitted.) United Illuminating Co. v.
Wisvest-Connecticut, LLC, 259 Conn. 665, 670–71, 791
A.2d 546 (2002).
Part 1 of the second agreement was labeled ‘‘Noncom-
petition’’ and included § 1.1 and § 1.2 (noncompetition
restriction). As previously quoted, § 1.2 provided that
the plaintiff would not compete with the defendant
‘‘during the period of Executive’s employment with the
Company.’’ If read in isolation, § 1.2 appears to provide
that the noncompetition restriction only applied while
the plaintiff was employed by the defendant. Neverthe-
less, § 1.2 must be ‘‘read in light of the other provisions’’
of the second agreement. United Illuminating Co. v.
Wisvest-Connecticut, LLC, supra, 259 Conn. 671.
Section 1.1 provided that the plaintiff agreed not to
compete with the defendant ‘‘in the event that Execu-
tive’s employment relationship with the Company ter-
minates for any reason, whether voluntary or
involuntary,’’ and that the plaintiff would ‘‘continue to
comply with the provisions of Section 1.2’’ of the second
agreement. Section 1.1, therefore, indicated that the
plaintiff’s noncompetition restriction continued indefi-
nitely. Consequently, the duration of the noncompeti-
tion restriction is internally inconsistent and
susceptible to more than one interpretation: one where
the duration of noncompetition was limited to the time-
frame of the plaintiff’s employment and another of
unlimited duration. See Charette v. Waterbury, 80 Conn.
App. 232, 246–47, 248, 834 A.2d 759 (2003) (affirming
trial court’s determination that cross-referenced provi-
sions created ambiguity in collective bargaining
agreement), cert. denied, 267 Conn. 910, 840 A.2d
1172 (2004).
Irreconcilable inconsistent provisions have been
treated by this court and our Supreme Court as creating
an ambiguity within the contract. See Imperial Casu-
alty & Indemnity Co. v. State, 246 Conn. 313, 329,
714 A.2d 1230 (1998); Dobuzinsky v. Middlesex Mutual
Assurance Co., 49 Conn. App. 398, 406, 714 A.2d 702,
cert. denied, 247 Conn. 908, 719 A.2d 902 (1998). For
example, in Imperial Casualty & Indemnity Co. v.
State, supra, 329, our Supreme Court analyzed an insur-
ance contract that included ‘‘inconsistent policy lan-
guage’’ regarding its coverage of injuries arising from
intentional acts. In determining that the insurance con-
tract was internally inconsistent regarding its scope of
coverage, the court explained: ‘‘Although by defining
an occurrence as ‘an accident’ the policy attempts to
limit coverage to conduct that is unintentional, this
definition, when read in conjunction with the definition
of personal injury, gives rise to an internal inconsis-
tency. . . . In light of this inconsistency, it is impossi-
ble to determine solely on the basis of the policy’s
express language whether the conduct at issue in this
case is covered.’’ Id., 327.
In resolving the contract’s internal inconsistency in
favor of the policyholder, our Supreme Court explained:
‘‘A . . . reason to interpret the inconsistent policy lan-
guage as encompassing intentional conduct is the gen-
eral rule that ambiguous provisions in a contract are
to be interpreted against the drafter. . . . Because we
have already determined, in this case, that it is the
language of the policy itself that gives rise to an ambigu-
ity, application of the rule is appropriate and serves to
further support our conclusion that the policy must be
interpreted to include coverage for intentional acts that
result in personal injuries during the policy period.’’
(Citations omitted.) Id., 329. Our Supreme Court’s hold-
ing in Imperial Casualty & Indemnity Co. demon-
strates that irreconcilable inconsistent language, like
the noncompetition restriction’s durational provisions
in present case, creates ambiguity.
Still, the defendant argues that the court should have
treated the provisions as ‘‘conflicting’’ and reconciled
the duration of the noncompetition period as set forth
in §§ 1.1 and 1.2 instead of analyzing the contract as
ambiguous. We conclude that the court properly deter-
mined that the language was ambiguous because it
could not reasonably be reconciled.
It is true that, ‘‘[w]here two clauses which are appar-
ently inconsistent may be reconciled by a reasonable
construction, that construction must be given, because
it cannot be assumed that the parties intended to insert
inconsistent and repugnant provisions.’’ (Emphasis
added; internal quotation marks omitted.) Dainty Rub-
bish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn.
App. 530, 534, 630 A.2d 115 (1993). Such a reasonable
construction is not possible in this case.
Here, § 1.1 provided an indefinite noncompetition
duration and specifically cross-referenced § 1.2, which
provided a timeframe limited to the plaintiff’s employ-
ment. As a result, construing the noncompetition
restriction’s duration as limited to the plaintiff’s term
of employment would have rendered meaningless the
language of § 1.1, which provided that if the plaintiff’s
‘‘employment relationship . . . terminates for any rea-
son . . . Executive shall continue to comply’’ with the
restrictions in § 1.2. ‘‘We are reluctant to conclude that a
contractual provision constitutes a meaningless gesture
by the parties.’’ (Internal quotation marks omitted.)
Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc.,
supra, 32 Conn. App. 534. Therefore, the language in
each clause of the noncompetition restriction was not
sufficiently clear for the court to reconcile them. See
id., 533. Consequently, the court correctly determined
that the noncompetition restriction’s duration was
ambiguous.
C
We now consider whether the court properly resolved
this ambiguity. ‘‘When . . . a contract provision is
ambiguous or contract provisions are internally incon-
sistent, a question of fact is involved.’’ Bank of Boston
Connecticut v. Avon Meadow Associates, 40 Conn. App.
536, 540, 671 A.2d 1310, cert. denied, 237 Conn. 905,
674 A.2d 1329 (1996). Therefore, we review the court’s
resolution of the ambiguous noncompetition duration
under a clearly erroneous standard. Murtha v. Hartford,
303 Conn. 1, 8, 35 A.3d 177 (2011).
‘‘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.’’ (Internal quotation
marks omitted.) Weyel v. Catania, 52 Conn. App. 292,
295, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d
846 (1999).
Pursuant to the doctrine of contra proferentem,7 the
court construed the noncompetition restriction’s
ambiguous duration against the defendant because the
plaintiff played no role in drafting the second agreement
and, as a result, held that the second agreement was not
supported by valid consideration. The court explained
that, although ‘‘the ambiguity in the contract is con-
strued against the defendant as the drafter, the defen-
dant cannot rely on [this] rule of contract construction
to support its argument that there was valid consider-
ation at the time the [second] agreement was signed.’’
The defendant contends that the court failed to
exhaust all other methods of determining the parties’
intent before reverting to contra proferentem as a last
resort. See Cruz v. Visual Perceptions, LLC, 311 Conn.
93, 107, 84 A.3d 828 (2014) (contra proferentem ‘‘appli-
cable only as a last resort’’ [internal quotation marks
omitted]). The defendant specifically argues that the
court should have: (1) construed the specific duration
set forth in § 1.2 over the general duration set forth in
§ 1.1 or (2) given effect to the enforceable restrictive
covenant set forth in § 1.2 instead of the invalid and
unenforceable one set forth in § 1.1. We are not per-
suaded.
Although the defendant now argues, on appeal, that
the court should have exhausted all other methods of
interpretation before using contra proferentem to
resolve the ambiguous duration, this was not its posi-
tion at trial. Indeed, the defendant conceded in its post-
trial brief that ‘‘even if the restrictive covenant in
Section 1 of the [second] agreement is ambiguous . . .
such an ambiguity would result in that provision of the
agreement being construed against the drafter.’’
(Emphasis omitted.) Given the defendant’s position at
trial, we are unconvinced that there was error in the
court applying the very canon of construction that the
defendant insisted upon.8 See Gorelick v. Montanero,
119 Conn. App. 785, 797 n.15, 990 A.2d 371 (2010) (party
cannot challenge on appeal ‘‘the trial court’s application
of legal principles or procedures that they requested
be applied at trial’’ [internal quotation marks omitted]).
The defendant additionally argues that the court
erred by failing to consider the parties’ past course of
dealing when resolving the second agreement’s ambigu-
ous noncompetition duration.9 We disagree.
The first and the second agreement were both entered
into evidence as full exhibits at trial. The court heard
testimony regarding both agreements’ noncompetition
clauses, as well as the relationship between the non-
compete covenants in the two agreements. The court
construed the duration of the second agreement’s non-
competition restriction against the defendant only after
being presented with that evidence. Although the court
made no specific finding regarding the impact of the
parties’ past course of dealing, the defendant never
requested such a finding through a motion for articu-
lation.10
‘‘In Connecticut, our appellate courts do not presume
error on the part of the trial court. . . . Rather, we
presume that the trial court, in rendering its judgment
. . . undertook the proper analysis of the law and the
facts.’’ (Citations omitted; internal quotation marks
omitted.) Brett Stone Painting & Maintenance, LLC v.
New England Bank, 143 Conn. App. 671, 681, 72 A.3d
1121 (2013). Consequently, we conclude that the court
correctly determined that the second agreement’s
ambiguous noncompetition restriction did not consti-
tute valid consideration.11
II
The defendant next contends that the court improp-
erly concluded that the plaintiff’s improved chances of
continued employment did not constitute consider-
ation. We disagree.
The court found, and the defendant does not dispute,
that the first agreement provided that the plaintiff had
the right to compensation if her employment was termi-
nated without cause and that the second agreement
provided that the plaintiff was an at-will employee. The
court determined that the plaintiff’s continued employ-
ment did not constitute consideration, and explained:
‘‘The [second] agreement clearly interferes with the
plaintiff’s rights as promised in the [first] agreement
in that it eliminates the plaintiff’s contractual right to
collect termination compensation. . . . [T]here must
be valid and adequate consideration for the less advan-
tageous terms of employment contained in the [second]
agreement, other than continued employment of the
plaintiff.’’
The defendant purports that it would have been
forced to liquidate and the plaintiff would have lost her
job if it had failed to obtain financing. The defendant
contends that the financing it ultimately secured was
predicated on the second agreement’s execution. The
trial court found, however, that ‘‘the more persuasive
evidence does not support this contention.’’
The court explained, and the record confirms, that
the only document outlining DSM’s financing terms con-
tained no requirement that the defendant execute the
second agreement. Steele testified that Longmeadow’s
investment would not have necessarily been held up if
the second agreement was never executed. Addition-
ally, Kevin Cronin, the defendant’s former general man-
ager and vice president, testified that he was not aware
of any condition for financing that required the second
agreement’s execution. On the contrary, he did not
believe that the second agreement conformed to the
investors’ prerequisite for financing, which was conti-
nuity of employment for key employees. Consequently,
the record supports the court’s conclusion that the
defendant’s financing and the plaintiff’s continued
employment were not predicated on the second
agreement’s execution.12 As a result, the court reason-
ably concluded that the plaintiff’s continued employ-
ment, for which the first agreement already provided,
did not constitute valid consideration to support the
second agreement. See Brian Construction & Develop-
ment Co. v. Brighenti, 176 Conn. 162, 166, 405 A.2d 72(1978) (‘‘when a party agrees to perform an obligation
for another to whom that obligation is already owed,
although for lesser remuneration, the second agreement
does not constitute a valid, binding contract’’).
III
The defendant finally argues that the plaintiff failed
to meet her burden of disputing the second agreement’s
listed recitals of consideration.13 We disagree.
The defendant’s contention is that, because the sec-
ond agreement contained a recital of consideration,
the burden shifted to the plaintiff to prove a lack of
consideration and the plaintiff did not meet that burden.
‘‘A recitation of consideration received does not prevent
proof that there was no such consideration. . . . It is
simply prima facie evidence, shifting the burden of
proof to the party disputing the consideration.’’ (Cita-
tions omitted.) TIE Communications, Inc. v. Kopp, 218
Conn. 281, 292, 589 A.2d 329 (1991).
Although the court made no specific finding regarding
the second agreement’s purported recital of consider-
ation, the record demonstrates that the court consid-
ered the recitation and determined that the second
agreement lacked valid consideration. The second
agreement’s ‘‘recitals’’ largely included provisions
asserting that the agreement was a prerequisite for the
defendant receiving financing and that, as an employee,
the plaintiff would benefit from that investment.14 As
previously discussed, the court’s finding, which was
supported by the record, was that the defendant’s
financing and the plaintiff’s continued employment
were not predicated on the second agreement’s execu-
tion. Moreover, the plaintiff testified that she received
nothing in exchange for entering into the second
agreement, despite giving up the rights to which she
was entitled under the first agreement. Consequently,
the plaintiff met whatever burden she might have had
disputing the purported consideration recited in the
second agreement.15
The judgment is affirmed.
In this opinion the other judges concurred.
1
According to § 6.6 of the first agreement, the effective date of the
agreement was July 1, 2006.
2
The plaintiff’s annual salary was $65,000 at the time the first agreement
was executed.
3
The plaintiff is referred to as ‘‘the Executive’’ in the second agreement.
4
The court dismissed the fraud count at a hearing held on April 30, 2012.
That decision has not been appealed.
5
On August 13, 2013, the court filed an articulation specifying that it
‘‘found that there was no valid consideration for the [second] agreement.’’
6
Neither party has disputed that the first agreement was a valid contract.
7
Under the doctrine of contra proferentem, ‘‘ambiguities in a contract are
construed against the party who drafted the contract.’’ David M. Somers &
Associates, P.C. v. Busch, 283 Conn. 396, 405 n.10, 927 A.2d 832 (2007); see
also Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 107, 84 A.3d 828 (2014).
8
We, likewise, disagree with the defendant to the extent it suggests that,
had the court properly applied contra proferentem, it would have imposed
the shorter noncompetition restriction set forth in § 1.2 because that would
be most favorable to the plaintiff in an employment contract context. As
the court astutely observed, that principle of contract construction is inappli-
cable when determining whether an ambiguous provision constitutes consid-
eration. Any benefit that the plaintiff hypothetically would have received
from a court construing the noncompetition restriction’s ambiguous dura-
tional term merely would be incidental, and not bargained for, when the
contract was entered into. See Willamette Management Associates, Inc. v.
Palczynski, supra, 134 Conn. App. 73–74.
9
‘‘Any determination of meaning or ambiguity should only be made in
the light of the relevant evidence of the situation and relations of the parties,
the subject matter of the transaction, preliminary negotiations and state-
ments made therein, usages of trade, and the course of dealing between the
parties. . . . But after the transaction has been shown in all its length and
breadth, the words of an integrated agreement remain the most important
evidence of intention.’’ (Emphasis added; internal quotation marks omitted.)
Levine v. Massey, 232 Conn. 272, 288, 654 A.2d 737 (1995) (Berdon, J.,
dissenting), quoting 2 Restatement (Second), Contracts § 212, comment
(b) (1981).
10
The defendant did file a motion for articulation, but that motion did
not seek an articulation of the court’s findings regarding the parties’ past
dealings.
11
The defendant erroneously relies on Cruz v. Visual Perceptions, LLC,
supra, 311 Conn. 93, to support its position that the court prematurely
construed the ambiguous duration in the plaintiff’s favor. See id., 108. Cruz
addressed contract construction, which requires a different analysis than
the one used for determining whether a contract was supported by consider-
ation. See id., 101. Additionally, to the extent that Cruz is applicable, the
record indicates that the court construed the ambiguous duration in favor
of the plaintiff only after considering extrinsic evidence regarding the par-
ties’ intent.
12
We need not address the defendant’s contention that improved prospects
for the plaintiff’s stock options constituted consideration because the court
excluded evidence concerning stock options as irrelevant and the defendant
has not challenged that determination on appeal.
We also are unconvinced by the defendant’s contention that the court
should have found that the plaintiff’s July 1, 2006 salary increase was consid-
eration to support the second agreement. The record supports the court’s
finding that the salary increase was not consideration for the second
agreement: the defendant was obligated to increase the plaintiff’s salary
under the first agreement while the second agreement was silent regarding
salary. See TD Bank, N.A. v. M.J. Holdings, LLC, supra, 143 Conn. App. 332(‘‘[a] modification of an agreement . . . requires a party to do, or promise to
do, something further than, or different from, that which he is already bound
to do’’ [internal quotation marks omitted]).
13
The second agreement’s recitation stated: ‘‘WHEREAS, as of the date
hereof, the Executive is an at-will employee of the Company;
‘‘WHEREAS, the Company and certain other investors (the ‘Series B Pur-
chasers’) have executed and delivered a Series B Convertible Redeemable
Preferred Stock Purchase Agreement dated as of the date hereof (the ‘Pur-
chase Agreement’) pursuant to which the Series B Purchasers have pur-
chased shares of the Company’s Series B Preferred Stock from the Company;
‘‘WHEREAS, as a condition to such purchase of Series B Preferred Stock
by the Series B Purchasers pursuant to the Purchase Agreement, the under-
signed is required to enter into this Agreement; and
‘‘WHEREAS, as an employee of the Company, the Executive shall benefit
from the investment made by the Series B Purchasers in the Company
pursuant to the Purchase Agreement;
‘‘NOW, THEREFORE, in consideration of the foregoing, the mutual cove-
nants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowl-
edged, the parties hereto agree as follows. . . .’’
14
The only remaining ‘‘consideration’’ specified in the recitals was that
the defendant was ‘‘an at-will employee,’’ which is not valid consideration.
We additionally reject the defendant’s argument that this provision of the
second agreement’s recitation clarified the duration of the noncompeti-
tion restriction.
15
We are unconvinced by the defendant’s contention, which has been
raised for the first time on appeal, that relieving the plaintiff of certain
obligations that she had under the first agreement was valid consideration
to support the second agreement. We consider the defendant’s shift in
arguments to be troubling because ‘‘to review . . . claim[s] . . . articu-
lated for the first time on appeal and not [raised] before the trial court,
would [be nothing more than] a trial by ambuscade of the trial judge.’’
(Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190,
216 n.18, 905 A.2d 1135 (2006). Additionally, although the trial court made
no specific finding regarding the obligations of which the plaintiff purport-
edly was relieved by virtue of the second agreement, the record does not
indicate that the court failed to consider those provisions in concluding
that there was no valid consideration. Both agreements were entered into
evidence as full exhibits, and we presume that the court ‘‘undertook the
proper analysis of the law and the facts’’; (internal quotation marks omitted)
Brett Stone Painting & Maintenance, LLC v. New England Bank, supra,
143 Conn. App. 681; in determining that the second agreement, which
included those provisions, was not supported by consideration.