Dinardo Seaside Tower, Ltd. v. Sikorsky Aircraft Corp. ( 2014 )

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DINARDO SEASIDE TOWER, LIMITED v. SIKORSKY
AIRCRAFT CORPORATION
(AC 35510)
DiPentima, C. J., and Lavine and Dupont, Js.
Argued February 4—officially released September 23, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Complex Litigation Docket, Shaban, J.)
J. Christopher Rooney, with whom were Anne D.
Peterson and, on the brief, Kurtis Z. Piantek, for the
appellant (plaintiff).
Edward V. O’Hanlan, with whom were Thomas J.
Donlon and Michele Maresca, for the appellee
(defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, DiNardo Seaside
Tower, Ltd., appeals from the judgment rendered in
favor of the defendant, Sikorsky Aircraft Corporation,
following a twenty-three day jury trial. On appeal, the
plaintiff claims that the trial court (1) improperly
granted the defendant’s motion for a directed verdict
as to the second count of the complaint alleging a viola-
tion of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., (2) improp-
erly charged the jury, and (3) committed harmful error
in a number of evidentiary rulings. We are not per-
suaded by these claims of impropriety, and, accord-
ingly, affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of the plaintiff’s appeal. This action arose
out of a lease between the parties concerning certain
industrial property owned by the plaintiff in Bridgeport.
The lease commenced on November 23, 1987, whereby
the defendant agreed to occupy buildings consisting of
approximately 220,000 square feet with an initial annual
rental fee of $1.2 million dollars. The defendant was
responsible for payment of all property taxes, sewer
use charges and public utilities charges and for main-
taining security.1
In April, 2000, the defendant notified the plaintiff that
it intended to ‘‘complete’’ the lease at the end of the
year. In a December 30, 2000 completion agreement
signed by the parties, the defendant agreed to make
payments pursuant to the terms of the lease covering
the time period of January 1, 2001, through November
30, 2002. The parties agreed that the defendant had
satisfied all of the conditions for the return of the leased
property, subject to a few minor duties that the defen-
dant agreed to perform.
In 2001, the defendant needed space to manufacture
H-66 Comanche helicopters for the United States Army.
On March 1, 2002, the parties executed ‘‘AMENDMENT
NO. 3 TO LEASE AGREEMENT’’ (third amendment),
which terminated the completion agreement and rati-
fied, adopted and restated the provisions of the lease
agreement between the parties, except as expressly
amended by the terms of third amendment. The third
amendment extended the terms of the lease until
November 30, 2007. From March, 2002, through Novem-
ber, 2002, the monthly rent was $100,000, and for the
balance of the lease the monthly rent increased to
$110,000. Paragraph 6 of the third amendment provided:
‘‘[The defendant] may, at [the defendant’s] option and
at [the defendant’s] sole cost and expense, construct
the improvements to the Premises (‘‘the [defendant]
Improvements’’) described in the plans and specifica-
tions to be attached hereto and made a part hereof as
Exhibit A in a mutually agreeable form by [the plaintiff]
and [the defendant]. Such plans and specifications shall
be attached hereto within sixty (60) days after execu-
tion hereof. After completion of the [defendant]
Improvements, such [defendant] Improvements shall
be deemed as part of the Premises and not subject to
restoration or removal upon expiration or termination
of the Lease term.
‘‘Notwithstanding any provision to the contrary con-
tained herein or in the Lease, upon completion of the
Phase I and Phase II [defendant] Improvements (as
delineated and set forth on Exhibit A), such [defendant]
Improvements (other than [the defendant’s] furniture,
equipment and removable trade fixtures) shall become
property of [the plaintiff] and [the defendant] shall not
be required to remove or restore the Factory Area
[defendant] Improvements (as delineated and set forth
on Exhibit A) at the end of the Lease term, provided,
however, that [the plaintiff] may, by written notice to
[the defendant] at least sixty (60) days prior to the end
of the Lease term, designate any or all of the Factory
Area [defendant] Improvements to remain as property
of the [plaintiff] and not be removed or restored at the
end of the Lease term, as such term may be extended.’’
(Emphasis in original.)
The defendant proceeded to modify the interior of
the property, including the construction of office space
with workstations that required electric, data and tele-
phone wires. The defendant gained the approval of the
plaintiff to replace the existing 90 ton chilled water air
conditioning system with a 270 ton version, but due to
budgetary concerns, elected to install a direct expan-
sion (DX) air conditioning system.
In 2004, the Army canceled the Comanche helicopter
program. The defendant’s lease obligation, however,
did not terminate until the end of 2007. As the end of
the lease approached, Alan David Mortensen began to
review the condition of the property on behalf of the
plaintiff. Specifically, in the summer of 2007, Mortensen
took photographs of the parking lot and building exteri-
ors. Later, he conducted a walk through of the buildings
with representatives of the defendant. On September
28, 2007, Mortensen drafted a memo with attached pho-
tographs of the walk through. Mortensen indicated in
this report that many certifications and records of test-
ing were either missing or expired. With respect to the
exterior of the building, Mortensen determined that the
parking lot, catch basins and curbs were in need of
repair; specifically, the cracks needed to have weeds
removed and be filled and the parking lots lines needed
to be redone. Mortensen also noted that the building
exterior was in need of repair; namely, the windows and
frames were in poor condition and the DryVit stucco
exterior was fractured and sagging. Mortensen further
indicated that the telephone switch and the data/voice
and power infrastructure had been removed from the
building and that a DX air conditioning system had been
installed rather than the chilled water system approved
by the plaintiff.
The plaintiff sent various notices to the defendant
regarding its assessment of the condition of the prop-
erty. Representatives of both parties attended a meeting
on November 29, 2007, just prior to the expiration of
the lease, regarding the plaintiff’s concerns regarding
the condition of the property. At that meeting, no one
on behalf of the defendant offered to address or remedy
the plaintiff’s issues. Two days later, the plaintiff
acknowledged the receipt of the keys to the property
but rejected the defendant’s attempted surrender of
the premises.
In 2009, the plaintiff commenced the present action
with a two count complaint. Count one alleged that the
defendant had breached the terms of the lease
agreement. Specifically, the plaintiff alleged that the
defendant improperly had removed telecommunica-
tions, data and electrical power wiring, had cut wires,
had disabled the telephone system to the point that a
replacement was necessary, had disabled the energy
management, security and fire alarm systems that had
been connected to an off-site property owned by the
defendant, had disabled the card access aspect of the
security system, had removed security cameras and had
cut various pipes throughout the building. The plaintiff
further alleged that, in breach of the lease agreement,
the defendant had failed to maintain the property,
including failing to clean and caulk thermal windows,
which allowed water to damage the building and caused
the DryVit stucco exterior to fail, and failing to maintain
the parking lot and sidewalks. Finally, the plaintiff
claimed that employees of the defendant had vandalized
the interior of the buildings and removed property
belonging to the plaintiff.
In count two of the complaint, the plaintiff alleged
that the conduct of the defendant constituted a violation
of CUTPA. Specifically, it claimed that the intentional
destruction of the property constituted an unfair trade
practice and was done with malice toward the plaintiff
and/or to prevent another occupant from using the
property.
During the trial, the defendant presented evidence
that the air conditioner it had installed was less expen-
sive, but either system would ‘‘do a fine job.’’ Addition-
ally, its evidence contradicted the plaintiff’s contention
that the plaintiff’s approval was necessary to replace the
air conditioning system. The defendant also produced
evidence that would permit the jury to conclude that the
terms of the lease permitted the defendant to remove its
equipment, furniture and trade fixtures, namely, the
modular furniture from the office space work stations
and the associated wires that supplied those stations.
The defendant also produced evidence that abandoned
data wiring needed to be removed because it consti-
tuted a fire and structural hazard and that new tenants
often preferred to install their own wiring to meet the
needs of their particular business. Finally, the defendant
noted that the terms of the lease placed the maintenance
of the DryVit stucco exterior with the plaintiff.
At the conclusion of the plaintiff’s case, the defendant
moved for a directed verdict with respect to both
counts. The court reserved judgment on the motion in
accordance with Practice Book § 16-37.2 At a later date,
the court requested the parties to submit case law
addressing whether leasing of the property was part of
the defendant’s trade or commerce. After considering
the materials submitted by the parties, the court granted
the defendant’s motion for a directed verdict with
respect to the CUTPA count. Specifically, the court
determined that the plaintiff had failed to establish that
the defendant was in the trade or commerce of renting
or leasing properties and its ‘‘true business’’ was the
manufacture and servicing of aviation equipment. The
defendant’s act of leasing property was ‘‘incidental to
its primary trade or business.’’ During its charge, the
court directed the jury to enter a verdict on the CUTPA
count in favor of the defendant.
After deliberating, the jury returned a verdict for the
defendant as to both counts. The jury noted in an inter-
rogatory that the plaintiff had not proven that the defen-
dant had breached the lease. The plaintiff moved to set
aside the verdict, arguing that the court improperly
charged the jury and that the verdict was against the
weight of the evidence. The court denied the plaintiff’s
motion, and this appeal followed. Additional facts will
be set forth as necessary.
I
The plaintiff first claims that the court improperly
directed the verdict in favor of the defendant with
respect to the second count of the complaint alleging
a CUTPA violation. Specifically, the plaintiff argues that
(1) the court’s reliance on law limiting the applicability
of CUTPA to the defendant’s primary trade or business
was misplaced, (2) the court improperly raised this
question sua sponte, and (3) even if it were required
to show that the defendant’s primary trade of business
was leasing commercial real estate to invoke CUTPA,
sufficient evidence existed for the jury to so find. For
these three reasons, it argues, the court should not have
granted the defendant’s motion for a directed verdict.
We are not persuaded by the plaintiff’s arguments.
Before turning to the specifics of the plaintiff’s claim,
we identify the relevant legal principles and our stan-
dard of review. ‘‘Whether the evidence presented by
the plaintiff was sufficient to withstand a motion for a
directed verdict is a question of law, over which our
review is plenary. . . . Directed verdicts are not
favored. . . . A trial court should direct a verdict only
when a jury could not reasonably and legally have
reached any other conclusion. . . . In reviewing the
trial court’s decision to direct a verdict in favor of a
defendant we must consider the evidence in the light
most favorable to the plaintiff. . . . Although it is the
jury’s right to draw logical deductions and make reason-
able inferences from the facts proven . . . it may not
resort to mere conjecture and speculation. . . . A
directed verdict is justified if . . . the evidence is so
weak that it would be proper for the court to set aside
a verdict rendered for the other party.’’ (Internal quota-
tion marks omitted.) Ibar v. Stratek Plastic Ltd., 145
Conn. App. 401, 410, 76 A.3d 202, cert. denied, 310
Conn. 938, 79 A.3d 891 (2013); see also Perez-Dickson
v. Bridgeport, 304 Conn. 483, 512–13, 43 A.3d 69 (2012).
We note, however, that a ‘‘verdict may be directed
where the decisive question is one of law or where the
claim is that there is insufficient evidence to sustain a
favorable verdict.’’ (Emphasis added; internal quotation
marks omitted.) Beckenstein Enterprises-Prestige
Park, LLC v. Keller, 115 Conn. App. 680, 693, 974 A.2d
764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).
Having identified our standard of review and the law
applicable to the procedural posture of the case, we
now address the applicable substantive law. ‘‘CUTPA
provides: No person shall engage in unfair methods of
competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce. General Statutes
§ 42-110b (a).’’ (Internal quotation marks omitted.)
Naples v. Keystone Building & Development Corp., 295
Conn. 214, 227, 990 A.2d 326 (2010). ‘‘CUTPA is, on its
face, a remedial statute that broadly prohibits unfair
methods of competition and unfair or deceptive acts
or practices in the conduct of any trade or commerce.
. . . [CUTPA] provides for more robust remedies than
those available under analogous common-law causes
of action, including punitive damages . . . and attor-
ney’s fees and costs, and, in addition to damages or in
lieu of damages, injunctive or other equitable relief.
. . . To give effect to its provisions, § 42-110g (a) of
[CUTPA] establishes a private cause of action, available
to [a]ny person who suffers any ascertainable loss of
money or property, real or personal, as a result of the
use or employment of a method, act or practice prohib-
ited by section 42-110b . . . .’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.)
Marinos v. Poirot, 308 Conn. 706, 712–13, 66 A.3d
860 (2013).
Our Supreme Court has explained that ‘‘a party need
not prove an intent to deceive to prevail under CUTPA.’’
(Internal quotation marks omitted.) Associated Invest-
ments Co. Ltd. Partnership v. Williams Associates IV,
230 Conn. 148, 156, 645 A.2d 505 (1994); see also M.
Taylor & D. Krisch, Encyclopedia of Connecticut
Causes of Action (2009), pp. 110–12. Finally, we note
that the appellate courts of this state have stated that
not every breach of a contract constitutes a CUTPA
violation; see Naples v. Keystone Building & Develop-
ment Corp., supra, 295 Conn. 228; Hudson United Bank
v. Cinnamon Ridge Corp., 81 Conn. App. 557, 571, 845
A.2d 417 (2004); and that the issue of whether CUTPA
applies to a defendant is a legal question, but whether
a defendant’s actions constituted a deceptive or unfair
trade practice is a question of fact. See Szekeres v.
Szekeres, 126 Conn. App. 829, 841, 16 A.3d 713, cert.
denied, 300 Conn. 939, 17 A.3d 475 (2011).
In its complaint, the plaintiff alleged that the defen-
dant intended to disable the property for use by another
occupant and this constituted a violation of CUTPA.
Specifically, the plaintiff averred that the defendant had
materials and infrastructure taken or destroyed and
that this was done to ensure that the property could
not be used by another tenant without the plaintiff
having to expend significant amounts of money to effec-
tuate repairs. The plaintiff also alleged that the defen-
dant was in the trade or business of ‘‘renting facilities
for the use of its various contracts and programs
throughout the country and the world.’’
On October 17, 2012, at the conclusion of the plain-
tiff’s case, the defendant made an oral motion for a
directed verdict on both counts of the complaint. It
argued that even intentional breaches of a contract do
not constitute a per se violation of CUTPA. It then stated
that there was no specific intent to disable the property
or to prevent the plaintiff from renting it to another
party. The court reserved judgment on the defen-
dant’s motion.
One week later, the court requested counsel for the
plaintiff and the defendant to provide cases addressing
whether the defendant’s leasing of property was part
of its trade or commerce. The court expressly stated
that it did not want a memorandum of law and that it
would not hear oral argument on this particular issue;
it only wanted copies of any applicable cases. It then
stated: ‘‘So, I’ll repeat it, just to be clear: that I’m not
going to be doing any oral argument, just if you can
find any authority—and, again, based on the facts of
this case, whether [the defendant’s] leasing of the prop-
erty is part of the [defendant’s] trade or commerce. I
just want cases printed out. And, obviously, you should
have cases for other counsel—copies for other counsel
as well.’’ Neither party objected to the course of action
taken by the court.
On October 26, 2012, following an in-chambers charg-
ing conference, the court informed counsel that it would
grant the defendant’s motion for a directed verdict with
respect to the CUTPA count. The plaintiff’s counsel
noted his objection to the case law relied upon by the
court in directing the verdict as contrary to the remedial
purpose of CUTPA and erroneous under the plain lan-
guage of the CUTPA statute and its legislative history.
On November 1, 2012, the court expounded on its rea-
son for directing the verdict on the record. ‘‘A CUTPA
violation may not be alleged for activities that are inci-
dental to an entity’s primary trade or commerce, and
for that our Appellate Court has weighed at—through
McCann Real Equities Series XXII, LLC v. David
McDermott Chevrolet, Inc., [93 Conn. App. 486, 890 A.2d
140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006)].
In making a determination as to whether a defendant
is subject to CUTPA and has committed a violation
thereof, it must first be determined whether the defen-
dant’s actions were carried out in the defendant’s trade
or commerce. . . . The conduct at issue must occur
in the defendant’s primary trade or business; it must
not be merely incidental to the defendant’s trade or
business.
‘‘In this case the plaintiff alleges that the defendant
is in the trade or business of renting facilities for the
use of its various contracts and programs throughout
the country and the world. . . . The evidence pre-
sented at trial was sufficient to establish the defendant
is a corporation which manufactures and services avia-
tion equipment, including helicopters. The defendant
has other facilities which it either rents or owns for
that purpose. . . . However, having considered all of
the evidence in the light most favorable to the plaintiff,
including any reasonable inferences which may be
made, it is the court’s determination that the plaintiff
has failed to establish that the defendant is in the trade
or commerce of renting or leasing properties. It is clear
that the manufacture and servicing of aviation equip-
ment is the primary trade or business of the defendant,
or put another way, its true business. The act of leasing
the property from the [plaintiff] is incidental to its pri-
mary trade or business. . . .
‘‘Now the evidence presented fails to make out a
prima facie case in support of both the evidence needed
to present the claim to the jury for its consideration
and that needed to establish a necessary element to
bring the claim under CUTPA. Accordingly, as to the
second count of the complaint, as a matter of law, the
plaintiff has no claim under CUTPA as the defendant’s
conduct in leasing or vacating the property is not part
of the defendant’s trade or commerce within the mean-
ing of that statute. As a result, the court will, as part
of its instructions to the jury, direct the jury to return
a verdict in favor of the defendant as to the second
count.’’3
A
The plaintiff’s primary argument is that the trial court
followed decisions from this court that were not con-
trolling and improperly interpreted CUTPA to limit the
application of that statute to instances where the defen-
dant’s unfair or deceptive act occurred in the conduct
of its primary trade or commerce. We are not persuaded
by this argument.
The starting point for our discussion is Arawana
Mills Co. v. United Technologies Corp., 795 F. Supp.
1238 (D. Conn. 1992), where the United States District
Court of Connecticut granted in part a motion to dis-
miss. The defendant in that case, United Technologies
Corporation, leased property from the plaintiff, Ara-
wana Mills Company. Id., 1240. The plaintiff alleged in
its complaint that the defendant had spilled, leaked
and discharged hazardous substances into the soil and
groundwater, causing contamination in violation of fed-
eral and state law. Id., 1241. The ninth count of the
complaint alleged a violation of CUTPA. Id., 1252. The
defendant argued that the complaint failed to state a
claim upon which relief could be granted because it
was not in the trade of leasing property and, therefore,
could not be liable under CUTPA. Id. The District Court
acknowledged that the act of leasing this property was
incidental to the defendant’s true business of repairing
and servicing aircraft engines. Id., 1253. It concluded
that the plaintiff ‘‘has no claim under CUTPA against
[the defendant] for [its] conduct in leasing the Property,
because leasing property is not this defendant’s ‘trade
or commerce’ within the meaning of CUTPA.’’ Id.; see
also Sealy Connecticut, Inc. v. Litton Industries, Inc.,
989 F. Supp. 120, 127 (D. Conn. 1997) (‘‘[w]hen a lessor
seeks to impose CUTPA liability on a lessee, the key
question is whether leasing property is defendant’s
trade or commerce’’ [internal quotation marks omit-
ted]). Accordingly, the District Court granted the defen-
dant’s motion to dismiss the CUTPA count for failure to
state a claim. Arawana Mills Co. v. United Technologies
Corp., supra, 1253.
This court applied the reasoning of Arawana Mills
Co. in McCann Real Equities Series XXII, LLC v. David
McDermott Chevrolet, Inc., supra, 93 Conn. App. 486(McCann). In that case, the plaintiffs entered into a
contract with the defendants to purchase four acres of
property. Id., 489. There were 10,000 gallons of water
and oil in the basement of one of the buildings, and
the plaintiffs learned that the oil had contaminated the
concrete forming the basement and the surrounding
soil. Id. Two and one-half years later, the Department
of Environmental Protection ordered the plaintiff to
remediate the soil. Id. The plaintiffs commenced an
action against the defendants, alleging, inter alia, a vio-
lation of CUTPA. Id., 502. The trial court granted a
directed verdict in favor of the defendants. Id., 489.
In addressing the decision to direct the verdict on
the plaintiffs’ CUTPA count in McCann, this court noted
that the trial court had directed the verdict in favor of
the defendants on the basis of ‘‘the ‘as is’ provision of
the agreement and that the defendants had not relied
on [David M.] McDermott’s representations. The [trial]
court [had] concluded . . . that McDermott’s misrep-
resentation was not the proximate cause of the plain-
tiff’s loss.’’ Id., 520. On appeal, however, the defendants
argued that ‘‘to constitute a violation of CUTPA, the
alleged offense must arise out of the offenders’ primary
trade or business . . . .’’ Id., 521. This court noted that
this matter was not addressed by the trial court, but
chose to review it nonetheless pursuant to its supervi-
sory powers. Id., 521 n.30. Relying on the reasoning of
Cornerstone Realty, Inc. v. Dresser Rand Co., 993 F.
Supp. 107, 111–12 (D. Conn. 1998), and Arawana Mills
Co. v. United Technology Corp., supra, 795 F. Supp.
1238, this court concluded ‘‘that a CUTPA violation may
not be alleged for activities that are incidental to an
entity’s primary trade or commerce.’’ McCann Real
Equities Series XXII, LLC v. David McDermott Chevro-
let, Inc., supra, 93 Conn. App. 523. This court continued:
‘‘Because the defendants in this case were not in the
business of selling real property, and the purchase and
sale agreement at issue was merely incidental to the
defendants’ sale and servicing of automobiles, [this
court] concluded that the [trial] court properly directed
a verdict as to the plaintiffs’ CUTPA count.’’ Id.This court next applied the primary trade or com-
merce principle in Sovereign Bank v. Licata, 116 Conn.
App. 483, 977 A.2d 228 (2009), appeal dismissed, 303
Conn. 721, 36 A.3d 662 (2012) (cert. improvidently
granted). This court iterated that a CUTPA violation
may not be alleged for activities that are incidental
to an entity’s primary trade or business. Id., 494. In
Sovereign Bank, the substituted plaintiff was in the
business of acquiring real estate, and not in the mort-
gage business. Id. ‘‘There was no evidence presented
at trial that [the substituted plaintiff] ever had, prior to
the transaction or thereafter, engaged in the mortgage
business, nor did the defendant allege as much. The
defendant’s allegation [in her counterclaim] solely
related to an ancillary transaction that was incidental to
the [substituted plaintiff’s] primary real estate business
and thus fell outside the CUTPA penumbra.’’ Id.; see
also Biro v. Matz, 132 Conn. App. 272, 290, 33 A.3d 742(2011) (sellers not in business of selling real property
and therefore CUTPA inapplicable to transaction); see
generally Tzovolos v. Wiseman, 51 Conn. Supp. 532,
579–81, 16 A.3d 819 (2007) (trial court rejected defen-
dants’ reliance on McCann and determined that their
acts were within primary scope of their business and
thus subject to CUTPA), aff’d, 300 Conn. 247, 12 A.3d
(2011). Guided by these cases, we now turn to the
specifics of the plaintiff’s arguments.
In the present case, the plaintiff argues that the court
improperly followed the reasoning that originated in
the District Court’s decision in Arawana Mills Co. and
appeared as dicta in this court’s decision in McCann. We
disagree with the plaintiff’s assertion that the analysis in
McCann limiting CUTPA to a primary trade or business
constituted dicta.4 Rather, it comprised the holding of
that case. In McCann, this court took the rare step
of using its supervisory powers to reach an issue not
presented to the trial court and resolved the case on the
basis that CUTPA claims cannot be alleged for activities
that are incidental to an entity’s primary business.
McCann Real Equities Series XXII, LLC v. David
McDermott Chevrolet, Inc., supra, 93 Conn. App. 521n.30. Simply put, this was the express holding of the
case, and not dicta as claimed by the plaintiff. Addition-
ally, this rationale also constituted the bases of our
subsequent decisions in Sovereign Bank and Biro with
respect to the CUTPA issues. Therefore, we conclude
that the trial court in the present case properly followed
the controlling and applicable precedent when it
directed the verdict on the CUTPA count.5
B
The plaintiff also argues that the court improperly
raised sua sponte this issue of the applicability of
CUTPA. Specifically, it contends that it was improper
for the court to raise this matter sua sponte at the
conclusion of evidence. We are not persuaded.
As noted previously, while the motion for a directed
verdict was pending and during the presentation of
evidence, the court asked the parties to submit cases
on whether leasing of the property was part of the
defendant’s trade or commerce. The court specifically
stated that it did not want a memorandum of law, nor
would it permit oral argument. Neither party voiced
any objection to the court’s request. The next day, Octo-
ber 25, 2012, both parties submitted cases to the court.
Again, neither party objected, or requested the court
to reconsider allowing a written memorandum of law
or oral argument. On October 26, 2012, the court noti-
fied the parties that it would grant the defendant’s
motion for a directed verdict on the CUTPA count. It
then allowed the plaintiff’s counsel to state why reliance
on McCann was improper.
We decline to review the merits of this claim. The
plaintiff did not object to the procedure used by the
court.6 A conclusion that this was improper would
amount to an ambush of the trial judge. See State v.
Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). ‘‘Prac-
tice Book § 60-5 provides in relevant part that [t]he
court shall not be bound to consider a claim unless it
was distinctly raised at the trial or arose subsequent to
the trial. The court may in the interests of justice notice
plain error not brought to the attention of the trial
court. . . . Indeed, it is the appellant’s responsibility
to present a claim clearly to the trial court so that the
trial court may consider it and, if it is meritorious, take
appropriate action. That is the basis for the requirement
that ordinarily [the appellant] must raise in the trial
court the issues that he intends to raise on appeal. . . .
For us [t]o review [a] claim, which has been articulated
for the first time on appeal and not before the trial
court, would result in a trial by ambuscade of the trial
judge. . . . We have repeatedly indicated our disfavor
with the failure, whether because of a mistake of law,
inattention or design, to object to errors occurring in
the course of a trial until it is too late for them to be
corrected, and thereafter, if the outcome of the trial
proves unsatisfactory, with the assignment of such
errors as grounds of appeal.’’ (Internal quotation marks
omitted.) JPMorgan Chase Bank, N.A. v. Georgitseas,
149 Conn. App. 796, 797–98, 89 A.3d 992 (2014); see
also Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn.
210, 265–66, 828 A.2d 64 (2003) (Supreme Court refused
to engage in appeal by ambuscade when party failed
to first present claim to trial court); Dziedzic v. Pine
Island Marina, LLC, 143 Conn. App. 644, 654–55, 72
A.3d 406 (2013) (rules of practice require party, as pre-
requisite to appellate review, to distinctly raise claim
before trial court).
In its brief, the plaintiff maintains that it was improper
for the court to raise a new legal theory sua sponte and
direct the verdict on that basis. The plaintiff objected
six days after the jury had been charged, but did not
include a specific challenge to the ‘‘primary business
theory.’’7 Our review of the record reveals that the plain-
tiff raised this issue for the first time in its appellate
brief. The claim, therefore, is not presented properly
for our review. Accordingly, we decline to review the
merits of this claim.8 See Curtis v. Curtis, 134 Conn.
App. 833, 847, 41 A.3d 318 (2012).
C
The plaintiff’s final argument challenging the directed
verdict is that it presented sufficient evidence to show
that the defendant’s primary trade or business was leas-
ing commercial real estate. Specifically, it argues that
the evidence of the defendant’s worldwide real estate
holdings was sufficient for the jury to conclude that
its real estate activities constitute an integral part of
its business.
In count one of the complaint, the plaintiff alleged
that the defendant’s ‘‘principal business is the design,
manufacture and overhaul of helicopters and their com-
ponent parts for military and civilian use.’’ In count two,
the plaintiff incorporated that allegation and further
alleged that the defendant ‘‘is in the trade or business
[of] renting facilities for the use of its various contracts
and programs throughout the country and the world.’’9
The plaintiff points to the testimony of Mortensen,
an employee of the defendant for more than twenty
years in its real estate department, that he personally
had been involved in office renovations of one million
square feet. Mortensen also testified that he inspected
the defendant’s facilities worldwide. The plaintiff also
relies on the testimony from John Luipold, whom it
described in its appellate brief as an employee of the
defendant.10 Absent from the evidence, however, is the
context in which to place this information. There was
nothing to show how these real estate activities com-
pared overall with the defendant’s business. Thus, the
evidence presented was insufficient to survive the
motion for directed verdict. We conclude that the court
properly directed the verdict on the CUTPA count.
II
The plaintiff next claims that the court improperly
charged the jury with respect to the plaintiff’s breach
of lease claim. Specifically, it argues that the court
improperly (1) failed to charge the jury that any ambigu-
ous or unclear language should be construed against
the defendant as the drafter of the third amendment to
the lease, and (2) failed to instruct the jury on the
technical, legal definitions of ‘‘fixtures’’ and ‘‘trade fix-
tures.’’ We are not persuaded by these arguments.
Initially, we identify the relevant legal principles and
our well settled standard of review for this claim. ‘‘The
test to determine if a jury charge is proper is whether
it fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . [W]e must determine whether
the jury instructions gave the jury a reasonably clear
comprehension of the issues presented for their deter-
mination under the pleadings and upon the evidence
and were suited to guide the jury in the determination
of those issues. . . . [I]n our task of reviewing jury
instructions, we view the instructions as part of the
whole trial. . . . As long as [the instructions] are cor-
rect in law, adapted to the issues and sufficient for the
guidance of the jury . . . we will not view the instruc-
tions as improper. . . . Moreover, [a] refusal to charge
in the exact words of a request will not constitute error
if the requested charge is given in substance.’’ (Internal
quotation marks omitted.) Umsteadt v. G. R. Realty,
123 Conn. App. 73, 79, 1 A.3d 243 (2010). We also have
stated: ‘‘Jury instructions need not be exhaustive, per-
fect or technically accurate, so long as they are correct
in law, adapted to the issues and sufficient for the guid-
ance of the jury. . . . Our standard of review on this
claim is whether it is reasonably probable that the jury
was misled.’’ (Internal quotation marks omitted.) Nikiel
v. Turner, 119 Conn. App. 724, 726–27, 989 A.2d 1088(2010); Beckenstein v. Reid & Riege, P.C., 113 Conn.
App. 428, 441, 967 A.2d 513 (2009). We now turn to the
specific arguments raised by the plaintiff.
A
The plaintiff first argues that the court improperly
failed to charge the jury that any ambiguous or unclear
language should be construed against the defendant as
the drafter of the third amendment to the lease. The
following additional facts are necessary to review this
claim. In its supplemental revised request to charge,
dated October 26, 2012, the plaintiff provided the court
with separate language to charge the jury if the court
determined that the contract was clear and unambigu-
ous, or if it concluded that it was ambiguous. If the
contract was determined to be ambiguous, then the
plaintiff proposed the following instruction: ‘‘When con-
sidering how to interpret an ambiguous term you should
consider whether the word was introduced into the
contract by one of the parties, meaning that they are
the ‘draftsman’ of the language. You have also heard
evidence that [the defendant] drafted or wrote the con-
tract and amendments. In the case where one party is
the author or draftsman, I instruct you that you are to
construe the meaning of that contract term against the
author of the contract, [the defendant]. In other words,
you must give those terms the meaning supported by
the evidence which is most favorable to the plaintiff.
. . . Again, for example, if the contract were to say ‘the
sky is blue’ and the shade of blue which applied was
ambiguous, and the party drafting the term construed
it to be limited to ‘navy blue,’ you are required to reject
his narrow interpretation in favor of a broader view of
the term put forth by the other party. In this case word
‘[Court to insert ambiguous term]’ you should therefore
construe that term as follows [language to be deter-
mined based upon evidence adduced].’’
The court did not give the plaintiff’s proposed instruc-
tion. The court provided the jury with a general instruc-
tion regarding the elements of a breach of contract
claim. It then charged the jury that the parties had a
dispute over the meaning of certain language in the
contract and that ‘‘[t]o determine whether the contract
meant what the plaintiff claims, you must decide
whether it was the parties’ intent to so provide. The
first place to look to find the parties’ intent is the word-
ing that was used in the contract. Words in a contract
are to be given their ordinary meaning. If you cannot
determine what was intended from the language you
may consider the circumstances surrounding the enter-
ing into the contract or other legal doctrines that I will
provide to you in these instructions.’’
On November 7, 2012, the plaintiff filed a written
objection to the court’s instructions. It argued that the
court should have incorporated the plaintiff’s proposed
jury charge. On November 28, 2012, the plaintiff moved
to set aside the jury verdict. On March 1, 2013, the
court issued a memorandum of decision denying the
plaintiff’s motion. It addressed the plaintiff’s claim of
error relating to the jury instructions. The first claim
of error addressed by the court was the plaintiff’s con-
tention that once the court had determined that certain
terms of the contract were ambiguous, it was required
to identify those specific terms and instruct the jury that
it was to resolve the ambiguity against the defendant as
the drafter of the contract. In rejecting this contention,
the court stated: ‘‘The difficulty with [the] plaintiff’s
argument in this respect is twofold. First, the premise
upon which the plaintiff bases this argument is flawed.
The court made no decision or specific finding during
the trial that the contract was ambiguous. The fact that
a dispute existed over the terms of the contract does
not automatically elevate the terms of the contract to
the level of ambiguity. It simply means that the parties
took and argued different positions as to the meaning
of its terms.’’11
The court further reasoned that even if the contract
contained ambiguous terms, the plaintiff’s requested
instruction regarding construing the ambiguity against
the defendant as the drafter did not apply in this case.
The plaintiff and the defendant both were sophisticated
commercial entities and therefore this was not a situa-
tion with uneven bargaining or negotiating power on
one side. ‘‘Here, the lease need not be interpreted
against the drafter as it was not one born of adhesion.’’
Last, the court concluded that even if the plaintiff’s
instruction should have been given, any such error was
harmless. See L’Homme v. Dept. of Transportation, 72
Conn. App. 64, 71, 805 A.2d 728 (2002).
When the language in a contract is ambiguous, courts
construe the ambiguity against the drafter. Ramirez v.
Health Net of the Northeast, Inc., 285 Conn. 1, 13–14,
938 A.2d 576 (2008); see also Montoya v. Montoya, 280
Conn. 605, 616, 909 A.2d 947 (2006); Cantonbury
Heights Condominium Assn., Inc. v. Local Land Devel-
opment, LLC, 273 Conn. 724, 735, 873 A.2d 898 (2005).
This doctrine sometimes is referred to as contra profer-
entem, and applies when the drafter of the contract has
superior knowledge as compared to the other party.
See David M. Somers & Associates, P.C. v. Busch, 283
Conn. 396, 405 n.10, 927 A.2d 832 (2007) (doctrine
applies primarily in context of insurance contracts but
also in contracts between attorney and client). The doc-
trine, however, applies only after the court determines
that the language in the contract is ambiguous. As the
court expressly stated in the memorandum of decision
denying the plaintiff’s motion to set aside the verdict,
it did not find the contract to be ambiguous.
The plaintiff’s appellate brief inaccurately assumes
that the court found parts of the contract to be ambigu-
ous. This flaw is fatal to its claims on appeal. While the
court did instruct the jury that the parties disputed the
meaning of certain terms contained in the contract, and
that the jury was to determine whether the contract
meant what the plaintiff contended, this is not equiva-
lent to a judicial determination of an ambiguous con-
tract. Our Supreme Court has stated that ‘‘[t]he mere
fact that the parties advance different interpretations
of the language in question does not necessitate a con-
clusion that the language is ambiguous.’’ (Internal quo-
tation marks omitted.) Harbour Pointe, LLC v. Harbour
Landing Condominium Assn., Inc., 300 Conn. 254, 264,
14 A.3d 284 (2011).
The plaintiff’s appellate brief states that with respect
to ‘‘those words which the court determined as a thresh-
old issue were ambiguous; the court should have
instructed the jury on the method by which the jury
was to determine how to interpret these words.’’ It
argues that the court’s instructions were misleading
because it instructed the jury as if any or all of the
words in the contract might be ambiguous. It then con-
tends that as a result of the ambiguity found by the
court, it should have instructed that such ambiguity
should be construed against the defendant as the drafter
of the contract. Thus, all of these arguments are founded
on the plaintiff’s assertion that the trial court deter-
mined that at least parts of the contract were deter-
mined to be ambiguous. The record reveals, however,
that the trial court never made that threshold determina-
tion. It expressly disavowed that notion in the memo-
randum denying the plaintiff’s motion to set aside the
verdict. Absent that threshold conclusion, the plaintiff’s
appellate arguments must fail.
B
The plaintiff next argues that the court improperly
failed to charge the jury regarding the definitions of the
terms ‘‘fixtures’’ and/or ‘‘removable trade fixtures.’’ The
plaintiff contends that, pursuant to the lease, any
improvements made by the defendant became the plain-
tiff’s property, and the defendant was permitted to
remove only its furniture, equipment and removable
trade fixtures. The plaintiff maintains that the court’s
instructions were not detailed sufficiently to instruct
the jury properly. We disagree.
The plaintiff filed a request to charge that specifically
defined ‘‘fixture’’ and ‘‘removable trade fixture.’’ The
plaintiff also requested an instruction that if the jury
found that the defendant removed certain items, such
as panel walls with wiring, electrical power wires, tele-
communication and data closets that served as central
routing stations, energy management, telephone, secu-
rity and fire alarm systems, and these items did not
fall within the definitions of furniture, equipment, or
removable trade fixtures, then it was required to find
that the defendant breached the paragraph 6 of the
third amendment.
The court declined to instruct the jury in accordance
with the plaintiff’s request. Instead it provided the fol-
lowing instruction: ‘‘To determine whether the contract
means what the plaintiff claims, you must decide
whether it was the parties’ intent to so provide. The
first place to look to find the parties’ intent is the word-
ing that was used in the contract. Words in a contract
are to be given their ordinary meaning. If you cannot
determine what was intended from the language you
may consider the circumstances surrounding the enter-
ing into the contract or other legal doctrines that I will
provide to you in these instructions.’’
In its memorandum of decision denying the motion
to set aside the verdict, the court noted that ‘‘[d]uring
the trial there was a significant amount of testimony
presented by both parties as to what items were consid-
ered fixtures and/or trade fixtures and to whether vari-
ous items claimed by either party fell into those
categories. There were also repeated references to the
provisions of the lease containing those terms through
both testimony and physical exhibits.’’ The court further
observed that the jury never indicated that they had
any difficulty with these terms and that it would not
presume confusion or error on the part of the jury.
After reviewing the record and the parties’ briefs, we
conclude that the court’s instructions were proper. The
instructions fairly presented the case in such a way that
injustice was not done to either party and sufficiently
guided the jury. McDermott v. Calvary Baptist Church,
263 Conn. 378, 383–84, 819 A.2d 795 (2003); see also
Perez v. Cumba, 138 Conn. App. 351, 366, 51 A.3d 1156,
cert. denied, 307 Conn. 935, 56 A.3d 712 (2012). Further-
more, we are not persuaded by the plaintiff’s unsup-
ported assertion that without instruction of these terms,
‘‘the jury did not properly understand the plaintiff’s
claims of damages due to [the defendant’s] removal or
whether [the defendant’s] claim that it removed only
items which it was permitted to under the lease, a neces-
sary predicate finding to the defendant’s verdict the
jury returned.’’ Put another way, the plaintiff has not
established any harm as result of the court’s instruc-
tions. See Scanlon v. Connecticut Light & Power Co.,
258 Conn. 436, 448, 782 A.2d 87 (2001).
III
The plaintiff’s final claim is that the court committed
harmful error in a number of evidentiary rulings. Specif-
ically, the plaintiff argues that it improperly failed to
admit into evidence certain photographs and improp-
erly admitted various letters written by the defendant’s
trial counsel to the plaintiff. We are not persuaded.
As an initial matter, we set forth the legal principles
applicable to this claim. ‘‘[O]ur standard of review
regarding challenges to a trial court’s evidentiary rulings
is that these rulings will be overturned on appeal only
where there was an abuse of discretion and a showing
by the defendant of substantial prejudice or injustice.
. . . In reviewing claims that the trial court abused
its discretion, great weight is given to the trial court’s
decision and every reasonable presumption is given in
favor of its correctness. . . . We will reverse the trial
court’s ruling only if it could not reasonably conclude
as it did.’’ (Internal quotation marks omitted.) Lappos-
tato v. Terk, 143 Conn. App. 384, 401, 71 A.3d 552, cert.
denied, 310 Conn. 911, 76 A.3d 627 (2013).
The plaintiff also must show that it was harmed by
an improper evidentiary ruling. ‘‘[B]efore a party is enti-
tled to a new trial because of an erroneous evidentiary
ruling, he or she has the burden of demonstrating that
the error was harmful. . . . In other words, an eviden-
tiary ruling will result in a new trial only if the ruling
was both wrong and harmful. . . . Moreover, an evi-
dentiary impropriety in a civil case is harmless only if
we have a fair assurance that it did not affect the jury’s
verdict. . . . A determination of harm requires us to
evaluate the effect of the evidentiary impropriety in the
context of the totality of the evidence adduced at trial.’’
(Citation omitted; internal quotation marks omitted.)
Klein v. Norwalk Hospital, 299 Conn. 241, 254–55, 9
A.3d 364 (2010); see also Hayes v. Camel, 283 Conn.
475, 488, 927 A.2d 880 (2007).
A
We first address the plaintiff’s claim regarding photo-
graphs that the court did not admit into evidence. The
plaintiff’s arguments regarding the photographs may be
placed in three categories: (1) The court improperly
failed to admit 165 photographs into evidence; (2) the
court improperly failed to admit photographs into evi-
dence that depicted red tape with the words ‘‘Electrical
Line’’; and (3) the court improperly failed to admit mis-
cellaneous photographs into evidence for a variety of
reasons. We address each in turn.
1
We first address the plaintiff’s claim regarding 165
photographs and summarize the twisted path these pho-
tographs travelled before the court ultimately denied
the plaintiff’s attempt to have them admitted into evi-
dence. Early in the trial, during Peter DiNardo’s testi-
mony, the plaintiff sought to introduce exhibit 94, a
memorandum and spreadsheet created by Mortensen
in September, 2007, with attached photographs. This
document described a ‘‘walk-around’’ of the property
by David Nash, Joseph Sadak, Peter DiNardo and Mor-
tensen. In objecting to this exhibit, the defendant’s
counsel argued that the version of exhibit 94 produced
during discovery did not contain color photographs in
violation of discovery orders. The court ruled that the
black and white photographs would be admitted into
evidence as exhibit 94A and that the plaintiff could
attempt to introduce the color photographs during Mor-
tensen’s testimony. The next day, the defendant’s coun-
sel raised a new objection, arguing that some of the
notations contained on the black and white photo-
graphs should not be allowed into evidence. After fur-
ther discussion, the plaintiff’s counsel agreed to offer
the document through Mortensen. After additional col-
loquy, the court vacated its order admitting exhibit 94A
into evidence.
The defendant’s counsel then objected to the date
being present on the photographs. Specifically, he
argued that the date ‘‘coached’’ the witness. The plain-
tiff’s counsel countered that the date was placed on the
photographs by a paralegal from his law firm who had
used the metadata from the digital version of each pho-
tograph. He further stated that he was prepared to call
the paralegal as a witness to authenticate the date on
the printed photographs. The defendant’s counsel coun-
tered that the paralegal was not disclosed as a witness
and thus she should not be permitted to testify. The
court initially indicated that it would allow the paralegal
to testify, but after hearing further argument from the
defendant’s counsel, it stated that DiNardo’s testimony
would proceed and the proceedings would not be ‘‘side-
tracked’’ by the paralegal’s testimony.
Several days later, the plaintiff called Mortensen as
a witness, who had taken the majority of the photo-
graphs at issue. Outside the presence of the jury, the
plaintiff’s counsel represented that Mortensen had
reviewed all of the photographs and had verified the
dates listed.12 He initialed each photograph to confirm
that the handwritten date matched the electronic date.
One hundred sixty-five photographs were combined as
exhibit 634, along with a list of the exhibit number of
each individual photograph. The defendant’s counsel
then stated: ‘‘But I have a real problem with these. Every
one of these photographs now has . . . Mortensen’s
initials. I thought we resolved this early in the case,
that information is not going to be put on photographs
to coach a witness or to dignify it any way. I conceded
on the dates, because, again, so that we didn’t have to
drag his tail. But now every one of the photographs he
proposes to submit have handwritten initials on them.’’
He then argued that the handwritten notation indicated
a personal connection and amounted to an inappropri-
ate validation of the photographs. After hearing from
the plaintiff’s counsel, the court instructed the attorneys
to attempt to resolve the issue prior to the start of
evidence the next day.
Two attempts to solve the evidentiary impasse failed.
The defendant’s counsel, however, raised a new issue
with the court. Specifically, he was unable to match the
electronic photographs and metadata with the printed
photographs marked for identification. He also argued
that there was no substantive assurance that the photo-
graphs marked for identification were the same ones
provided during discovery.13 The plaintiff’s counsel then
suggested that he had a data CD of the photographs
sorted by date. From that source, which had some orga-
nization of the electronic versions of the photographs,
prints could be made without any signatures, although
it would take some time to complete. The court sus-
pended the trial until 2 p.m. so that this task could
be completed.14
After the lunch break, the plaintiff’s counsel reported
to the court that a partial list of the printed photographs
had been cross referenced to the corresponding identifi-
cation number of the electronic version. Additionally,
a print without any date or signature was made. Mor-
tensen resumed his testimony. The plaintiff’s counsel
showed him exhibit 634. The defendant’s counsel raised
an objection and the court noted that exhibit 634 was
what had led the court to suspend the trial earlier that
day. The court then ruled: ‘‘I think the discussion before
was that, essentially, that we were not going to deal
with these photographs, but literally deal with the ones
that you’ve since produced. . . . So, let me sustain the
objection on the basis that these photos that have been
presented to the witness based on a discussion that
took place outside of the presence of the jury are those
that would not form the basis of testimony by this
witness, but would be, in fact, be replaced by other
documents.’’ Rather than dealing with the collection of
photographs that comprised exhibit 634, the plaintiff’s
counsel then dealt with individual photographs.
On appeal the plaintiff contends that the court should
have admitted exhibit 634 into evidence or, in the alter-
native, should have conditionally admitted that exhibit
‘‘subject to the later admission of further facts support-
ing their relevance.’’15 We are not persuaded. As to the
latter, we simply note that the plaintiff never requested
that exhibit 634 be admitted on a conditional basis. It
has not provided us with any law that required the court
to do so sua sponte. With respect to the former, the
plaintiff proposed the procedure that the court ulti-
mately adopted to resolve the evidentiary dispute over
exhibit 634. Rather than follow that course, the plaintiff
attempted to question Mortensen regarding exhibit 634
after the parties had agreed to have new photographs
printed out without the notations on them. ‘‘Our rules
of procedure do not allow a [party] to pursue one course
of action at trial and later, on appeal, argue that a path
he rejected should now be open to him. . . . To rule
otherwise would permit trial by ambuscade.’’ (Internal
quotation marks omitted.) Dockter v. Slowik, 91 Conn.
App. 448, 462, 881 A.2d 479, cert. denied, 276 Conn. 919,
888 A.2d 87 (2005).
2
The plaintiff next argues that the court abused its
discretion in not admitting photographs into evidence
that depicted red tape with the words ‘‘Electrical Line.’’
The court sustained the defendant’s objection to these
photographs on the basis that the red tape, which had
been placed there by electricians as a precaution, was
too prejudicial. Specifically, the court stated: ‘‘That plas-
tic tape, red in color, certainly would tend to flag, I
think, in an ordinary person’s mind that there may be
some issue here, and to that extent it would be prejudi-
cial to the defendant to admit it as it is.’’
‘‘[Section] 4-3 of the Connecticut Code of Evidence
. . . provides: Relevant evidence may be excluded if
its probative value is outweighed by the danger of unfair
prejudice or surprise, confusion of the issues, or mis-
leading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative
evidence. In this context, unfair prejudice is that which
unduly arouse[s] the jury’s emotions of prejudice, hos-
tility or sympathy . . . or tends to have some adverse
effect upon [the party against whom the evidence is
offered] beyond tending to prove the fact or issue that
justified its admission into evidence. . . . Section 4-3
also recognizes the court’s authority to exclude relevant
evidence when its probative value is outweighed by
factors such as confusion of the issues or misleading
the jury . . . .’’ (Citations omitted; internal quotation
marks omitted.) Ancheff v. Hartford Hospital, 260
Conn. 785, 804–805, 799 A.2d 1067 (2002).
The court did not abuse its discretion in determining
that the prejudicial impact of these photographs, which
depicted red tape, outweighed their probative value.
See Farrell v. St. Vincent’s Hospital, 203 Conn. 554,
563–65, 525 A.2d 954 (1987). The red tape also raised
the peripheral issue of whether these electrical lines
were powered, as noted during the colloquy between
counsel and the court. In order to avoid confusing and
misleading the jury, the court properly excluded these
photographs. See C. Tait & E. Prescott, Connecticut
Evidence (5th Ed. 2014) § 4.9, pp. 162–63.
3
The plaintiff next argues that the court improperly
failed to admit miscellaneous photographs into evi-
dence for a variety of reasons. Before discussing these
additional evidentiary rulings, we iterate our scope of
review. ‘‘[T]he trial court has broad discretion in ruling
on the admissibility of evidence. . . . The determina-
tion of the relevancy and remoteness of evidence is
within the sound discretion of the trial court. . . . The
trial court’s ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion.’’ (Internal quotation marks omitted.)
McNeff v. Vinco, Inc., 59 Conn. App. 698, 701, 757 A.2d
685 (2000). We also note that ‘‘[a] photograph offered
to prove the appearance of . . . [something] which
cannot itself be inspected by the jury must first be
proved accurate. The accuracy sufficient for its admis-
sion is a preliminary question of fact to be determined
by the trial judge. . . . Ordinarily . . . [a photograph]
should be substantiated by testimony that it is a correct
representation of the conditions it depicts, and in so far
as it is properly so authenticated it becomes evidence of
those conditions.’’ (Internal quotation marks omitted.)
Madsen v. Gates, 85 Conn. App. 383, 400, 857 A.2d 412,
cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).
After reviewing the record and briefs and considering
the arguments of the parties, we conclude that the plain-
tiff has not shown that it is entitled to a new trial as a
result of these evidentiary claims. The court’s rulings
with respect to exhibits 396, 397 (photographs of tele-
phone/data closets taken eighteen months after defen-
dant had vacated premises), 179-K, 179-L (photographs
of conditions created by plaintiff) 290, 291 (photographs
of cranes taken in 2008), and photographs that depicted
wires pulled down from the ceiling by the plaintiff did
not constitute an abuse of discretion by the trial court.
Additionally, the plaintiff failed to establish that it was
harmed by the court’s decision to not admit exhibit 458
into evidence because exhibit 459, which was admitted
into evidence, depicted the same image. We reject,
therefore, the plaintiff’s claims relating to photographs
not admitted into evidence.
B
The plaintiff next argues that the court improperly
admitted letters written by the defendant’s counsel into
evidence. Specifically, it contends the letters were hear-
say and that it should have been permitted to examine
the defendant’s counsel as a witness. We disagree.
The following additional facts are necessary for our
discussion. In a letter dated July 7, 2008, the defendant’s
counsel wrote to ‘‘Mr. DiNardo’’ to inform him that
all of the defendant’s obligations under the lease had
terminated, and that any future correspondence should
be sent to him. Second and third letters, dated July
17, 2008, and August 27, 2008, addressed the issue of
electronic monitoring for fire and security of the
property.
During the trial, the defendant attempted to introduce
the first letter during Peter DiNardo’s cross-examina-
tion. The plaintiff objected on the bases that the letter
was not a business record and that it made the defen-
dant’s counsel a witness. After the court excused the
jury, the plaintiff noted that its objections applied to
all of the letters written by the defendant’s counsel. It
stated that the letters were made in anticipation of
litigation, and therefore did not fall within the business
record exception to the rule against hearsay. Further,
if additional foundation was required, the defendant
would be required to call his counsel as a witness, which
would create an ethical dilemma. The court concluded
that the letter was not made by the plaintiff in the
course of its regular business and thus was not a busi-
ness record. The court further determined, after consid-
ering Rule 3.7 of the Rules of Professional Conduct, that
the defendant’s counsel was not a ‘‘necessary witness.’’
1
The plaintiff first contends that the court improperly
admitted the letters into evidence despite concluding
that the business records exception to the hearsay doc-
trine did not apply.16 Even if we assume that the court
improperly admitted the letters into evidence, we con-
clude that any such impropriety was harmless.17
‘‘[E]ven when a trial court’s evidentiary ruling is
deemed to be improper, we must determine whether
that ruling was so harmful as to require a new trial.
. . . In other words, an evidentiary ruling will result in
a new trial only if the ruling was both wrong and harm-
ful. . . . Finally, the standard in a civil case for
determining whether an improper ruling was harmful
is whether the . . . ruling [likely] would [have]
affect[ed] the result.’’ (Internal quotation marks omit-
ted.) Hayes v. Camel, supra, 283 Conn. 488; see also
Daley v. McClintock, 267 Conn. 399, 403, 838 A.2d 972(2004). ‘‘A determination of harm requires us to evaluate
the effect of the evidentiary impropriety in the context
of the totality of the evidence adduced at trial. . . .
Thus, our analysis includes a review of: (1) the relation-
ship of the improper evidence to the central issues
in the case, particularly as highlighted by the parties’
summations; (2) whether the trial court took any mea-
sures, such as corrective instructions, that might miti-
gate the effect of the evidentiary impropriety; and (3)
whether the improperly admitted evidence is merely
cumulative of other validly admitted testimony.’’ (Cita-
tion omitted; internal quotation marks omitted.) Hayes
v. Camel, supra, 489.
The plaintiff’s brief merely states that these letters
were ‘‘highly prejudicial’’ and that it was denied the
right to cross-examine the defendant’s counsel and
demonstrate that his views as expressed in the letters
were inaccurate. After reviewing the totality of the evi-
dence before the jury, we are satisfied that any error
would not have affected the verdict and therefore was
harmless. The plaintiff has not met its burden of demon-
strating harm, particularly because many of the state-
ments in these letters were cumulative of other properly
admitted evidence. Accordingly, this argument must
fail.
2
We now address the plaintiff’s contention that it was
not permitted to call the defendant’s counsel as a wit-
ness for testimony regarding the letters at issue. Its
appellate argument ignores the court’s reasoning for
finding that the defendant’s counsel was not a ‘‘neces-
sary witness.’’ The court had stated: ‘‘Now here the
letters that have been sought to be introduced by the
defendant are ones authored by its own counsel as a
representative of the [defendant]. The subject matter
of the letters represent the position of [the defendant]
relative to the plaintiff’s claims. Now this information
that’s available through other [of the defendant’s] repre-
sentatives, and even the plaintiff himself for that matter,
or itself. The information is relevant, it’s material to the
proceedings, and I don’t believe it would work any
surprise or injustice on the plaintiff if it were to be
admitted.’’
Rule 3.7 (a) of the Rules of Professional Conduct
provides in relevant part: ‘‘A lawyer shall not act as
advocate at a trial in which the lawyer is likely to be
a necessary witness unless . . . (3) Disqualification of
the lawyer would work substantial hardship on the cli-
ent.’’ This Rule ‘‘codifies what is commonly called the
advocate-witness rule, and many cases have considered
the application of this rule to determine whether a client
may seek testimony from his own lawyer at trial. The
rule permits an attorney actively participating in the
case to be a witness as to merely formal matters but
discourages testimony as to other matters on behalf of
his client except when essential to the ends of justice.’’
(Internal quotation marks omitted.) State v. Thompson,
20 Conn. App. 290, 294, 567 A.2d 837 (1989).
We are persuaded by the analysis in Mettler v. Mettler,
50 Conn. Supp. 357, 360, 928 A.2d 631 (2007), that our
first step is a determination of whether the defendant’s
counsel was a necessary witness. ‘‘A necessary witness
is not just someone with relevant information, however,
but someone who has material information that no one
else can provide. Whether a witness ought to testify is
not alone determined by the fact that he has relevant
knowledge or was involved in the transaction at issue.
Disqualification may be required only when it is likely
that the testimony to be given by the witness is neces-
sary. Testimony may be relevant and even highly useful
but still not strictly necessary. A finding of necessity
takes into account such factors as the significance of
the matters, weight of the testimony and availability of
other evidence. . . . A party’s mere declaration of an
intention to call opposing counsel as a witness is an
insufficient basis for disqualification even if that coun-
sel could give relevant testimony. . . . There is a dual
test for necessity. First the proposed testimony must be
relevant and material. Second, it must be unobtainable
elsewhere.’’ (Emphasis added; internal quotation marks
omitted.) Id., 360; see also Loomis v. Norman Printers’
Supply Co., 81 Conn. 343, 350, 71 A. 358 (1908).
In the present case, the plaintiff baldly asserts that
the letters at issue ‘‘contain statements of other persons
which could not be challenged . . . .’’ The brief, how-
ever, does not explain the error or flaw in the court’s
analysis that the information therein was available
through other employees or representatives of the
defendant and that, therefore, the defendant’s counsel
was not a necessary witness. See Mettler v. Mettler,
supra, 50 Conn. Supp. 363 (availability of other persons
to testify about conversations and events surrounding
them means that attorney not be necessary witness).
Put another way, we are not persuaded that the court
abused its discretion in determining that the defendant’s
counsel was a necessary witness pursuant to Rule 3.7
of the Rules of Professional Conduct.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The lease was described as a ‘‘triple net lease,’’ which meant that the
defendant was responsible for all expenses associated with the property,
including the real estate taxes, utility expenses, insurance and maintenance.
The lease, however, did place responsibility for the roofs and the structure
of the buildings with the plaintiff.
2
Practice Book § 16-37 provides in relevant part: ‘‘Whenever a motion for
a directed verdict made at any time after the close of the plaintiff’s case in
chief is denied or for any reason is not granted, the judicial authority is
deemed to have submitted the action to the jury subject to a later determina-
tion of the legal questions raised by the motion. The defendant may offer
evidence in the event the motion is not granted, without having reserved
the right to do so and to the same extent as if the motion had not been
made. . . .’’ See also Southern New England Telephone Co. v. Pagano, 79
Conn. App. 458, 465–67, 830 A.2d 359 (2003).
3
During its charge to the jury, the court stated: ‘‘In its second count, the
plaintiff alleges that the defendant violated the Connecticut Unfair Trade
Practices Act, CUTPA, in that it intentionally damaged the property to thwart
the re-leasing of the premises and cause the plaintiff to incur costs. . . .
Following the close of evidence and pursuant to a motion heard by the
court, I have determined that the plaintiff has failed to present the proof
that the law requires to prevail on its CUTPA claim. Since I have made this
legal determination, I am directing you that the law requires you to render
a verdict in favor of the defendant on the second count of the complaint.
You will do this by having the foreperson of the jury sign a defendant’s
verdict form . . . .’’ The jury complied with the court’s instruction and
returned a defendant’s verdict on the CUTPA count.
4
‘‘Dictum includes those discussions that are merely passing commentary
. . . those that go beyond the facts at issue . . . and those that are unneces-
sary to the holding in the case. . . . As we have previously recognized,
however, it is not dictum when a court of [appeal] intentionally takes
up, discusses, and decides a question germane to, though not necessarily
decisive of, the controversy . . . . Rather, such action constitutes an act
of the court which it will thereafter recognize as a binding decision.’’ (Empha-
sis in original; internal quotation marks omitted.) Red 11, LLC v. Conserva-
tion Commission, 117 Conn. App. 630, 647 n.9, 980 A.2d 917, cert. denied,
294 Conn. 918, 984 A.2d 67 (2009); see also Tele Tech of Connecticut Corp. v.
Dept. of Public Utility Control, 270 Conn. 778, 808 n.26, 855 A.2d 174 (2004).
5
The plaintiff argues that the ‘‘court erred when it chose not to be guided
by the plain language of the statute’’ and should have employed the plain
meaning rule set forth in General Statutes § 1-2z. As stated previously, the
trial court properly followed the precedent from this court. We also note
that we are not at liberty to revisit this court’s prior decisions. ‘‘As we often
have stated, this court’s policy dictates that one panel should not, on its own,
reverse the ruling of a previous panel. The reversal may be accomplished only
if the appeal is heard en banc.’’ (Internal quotation marks omitted.) First
Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750,
759, 966 A.2d 239 (2009); see also Consiglio v. Transamerica Ins. Group.,
55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999).
6
We note that the plaintiff’s preliminary request to charge contained the
following statement: ‘‘The conduct at issue must occur in the defendant’s
primary trade or business; it must not be merely incidental to the defendant’s
trade or business. If you do not find that the conduct occurred in the
defendant’s trade or commerce, you must find that there was not CUTPA
violation. General Statutes § 42-110a (4). McCann Real Equities Series XXII,
LLC v. David McDermott Chevrolet, Inc., [supra] 93 Conn. App. 486 . . .
(‘CUTPA violation may not be alleged for activities that are incidental to an
entity’s primary trade or commerce’).’’ The plaintiff’s supplemental revised
request to charge, dated October 26, 2012, contained a similar statement.
7
On October 26, 2012, the court stated: ‘‘One last item, which we—I’d
relayed to counsel in chambers and they have made an inquiry. And just to
be clear any exceptions to the final jury charge, verdict forms, interrogatories
that are submitted to the jury, may be raised upon the conclusion of the
presentation of the court’s charge to the jury, as consistent with normal
practice. So they haven’t waived any rights by not making any sort of
statement today, given the discussions we had in chambers, so you’ll have
jury charge.’’ (Emphasis added.) We do not interpret that statement to
encompass any challenge to the jury charge at any time. The specific claim
on appeal is that the court, and not the defendant, raised the ‘‘primary
business theory.’’ The plaintiff did not object to the trial court raising this
issue sua sponte before that court.
8
The plaintiff also claims that the manner in which the court informed
the jury of the decision to direct the verdict on the CUTPA count was
improper and prejudicial. Specifically, it argues informing the jury of the
decision to direct the verdict during charge ‘‘tainted’’ the charge relating to
the contract count. We agree with the defendant that the plaintiff failed to
object to this procedure, and therefore waived this claim. See Curtis v.
Curtis, 134 Conn. App. 833, 847, 41 A.3d 318 (2012).
9
The defendant admitted the first allegation and denied the second in
its answer.
10
In fact, Luipold was employed by United Systems Integrators, which
was the real estate alliance partner for United Technologies Corporation,
where he was responsible for negotiating real estate on behalf of the defen-
dant and three other business units at United Technologies Corporation.
11
‘‘In determining whether a contract is ambiguous, the words of the
contract must be given their natural and ordinary meaning. . . . A contract
is unambiguous when its language is clear and conveys a definite and precise
intent. . . . The court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . . Moreover, the mere
fact that the parties advance different interpretations of the language in
question does not necessitate a conclusion that the language is ambiguous.
. . . Furthermore, a presumption that the language used is definitive arises
when, as in the present case, the contract at issue is between sophisticated
parties and is commercial in nature.’’ (Citations omitted; internal quotation
marks omitted.) United Illuminating Co. v. Wisvest-Connecticut, LLC, 259
Conn. 665, 670, 791 A.2d 546 (2002); see also Allstate Life Ins. Co. v. BFA
Ltd. Partnership, 287 Conn. 307, 313–14, 948 A.2d 318 (2008).
12
The plaintiff’s counsel represented that Mortensen verified the date on
the printed photographs with the metadata from the electronic copy of
the photographs.
13
Further complicating matters was the fact that some of the photographs
in exhibit 634 previously had been admitted into evidence. For example,
exhibit 250XX was a full exhibit and contained a date on it. Within exhibit
634 was a photograph marked 250XX that contained both the date and
Mortensen’s handwritten initials.
14
The court’s frustration with this issue is apparent from the transcript.
‘‘All right, what I expect is when we come back at 2:00 that there’s going
to not be any more issues about what the photos are, which ones we’re
using, et cetera. That may take a herculean effort but that’s what you’re
going to entail. I just sent [the members of the jury] off for the next three
hours. Okay? I’ve already use two hours of their time today. That will make
five hours today where they’ve done nothing related to this case. That frankly
is—it’s rude and it’s I’ll use the term an injustice to them. So it’s going to
be—the onus is going to be on counsel at this point to put things into place
so that we can get moving at 2:00 efficiently.’’
15
See Conn. Code Evid. § 1-3 (b).
16
‘‘To admit evidence under the business record exception to the hearsay
rule, a trial court judge must find that the record satisfies each of the three
conditions set forth in General Statutes § 52-180. The court must determine,
before concluding that it is admissible, that the record was made in the
regular course of business, that it was the regular course of such business
to make such a record, and that it was made at the time of the act described
in the report, or within a reasonable time thereafter.’’ (Internal quotation
marks omitted.) River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn.
787, 793–94, 595 A.2d 839 (1991); see also Conn. Code Evid. § 8-4.
17
During the trial, the defendant argued that the letters were business
records of Peter DiNardo, and necessary to clarify the record as to the
extent of the communication between the parties after the defendant had
vacated the property. The court never clarified its reasoning for admitting
the letters into evidence over the plaintiff’s hearsay and business records
objections. In its appellate brief, the defendant posits that the letters were
not offered for the truth of their contents, and therefore they were not
hearsay. See, e.g., Johnson v. Pike, 136 Conn. App. 224, 236–37, 46 A.3d 191(2012). This argument, however, does not appear to have been raised before
the trial court.