Konover Development Corp. v. Waterbury Omega, LLC ( 2022 )

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KONOVER DEVELOPMENT CORPORATION v.
WATERBURY OMEGA, LLC
(AC 44537)
Alvord, Clark and Harper, Js.
Syllabus
The plaintiff, inter alia, sought to recover damages from the defendant
property owner for breach of contract. The parties had entered into an
oral management agreement for an unspecified term, pursuant to which
the plaintiff agreed to act as the defendant’s exclusive agent for the
licensing of rooftop telecommunications equipment to be located at the
defendant’s property in exchange for a percentage of the monthly
receipts generated by any licenses. The plaintiff procured two contracts
for the placement of wireless telecommunications equipment on top of
the building on the property and collected the commissions due in
connection therewith for approximately eleven years. Thereafter, the
defendant only intermittently remitted the commissions to the plaintiff.
Additionally, unbeknownst to the plaintiff, the defendant had entered
into similar contracts for the placement of wireless telecommunications
equipment on the building with three other parties and had not remitted
any commissions to the plaintiff in connection with those contracts.
After commencing this action, the plaintiff filed an application for a
prejudgment remedy, inter alia, to secure an amount equal to the
amounts allegedly due to it with respect to the two original contracts
and with respect to the commissions that it should have received in
connection with the three additional contracts. In response, the defen-
dant asserted special defenses, including that the plaintiff had violated
the applicable statute (§ 20-325a), which barred the recovery of certain
real estate commissions, and that enforcement of the oral management
agreement was barred by the statute of frauds and the rule against
perpetuities. The trial court granted the plaintiff’s application for a
prejudgment remedy with respect to its breach of contract count,
determining that the plaintiff had established probable cause that the
parties had entered into a valid and enforceable oral management agree-
ment and that the defendant had breached that agreement by failing to
remit to the plaintiff the commissions relating to the three additional
contracts, and the defendant appealed to this court. Held:
1. The trial court properly rejected the defendant’s special defense that the
plaintiff’s claims were barred by § 20-325a because the plaintiff was
exempt from its prerequisites pursuant to the applicable statute (§ 20-
329 (9)), which provided an exception for leases or licenses of space
on buildings for unattended personal wireless services facilities, related
devices, and ancillary equipment used to operate such devices in an
area not to exceed 360 square feet for any one service: it was not
improper for the trial court to rely on the testimony of the plaintiff’s
expert, A, in determining the meaning of the language of the § 20-329
(9) exception because, pursuant to the applicable statute (§ 1-1 (a)), the
undefined, technical statutory terms relating to the calculation of the
square footage requirement of the exception were to be accorded the
meaning that they would convey to an informed person in the applicable
field, and, having worked in the wireless industry for nineteen years, A
was an informed person in the applicable field; moreover, the defendant’s
argument that the definitions contained in the applicable federal statute
(47 U.S.C. § 332) and regulation (47 C.F.R. § 1.6002) required the conclu-
sion that the space occupied by antennas must be included within the
square footage calculation for purposes of determining the applicability
of the exception was unavailing because those definitions did not relate
to measurement; furthermore, the defendant’s proposed construction
of the exception, which would limit its applicability to a single wireless
facility, was unreasonable because it ignored the context of the phrase
at issue, which suggested that the square footage limitation applied to
each such facility; additionally, the defendant’s argument that A improp-
erly added together the square footage of certain components of the
installation, rather than measuring the entire area in which the compo-
nents were contained, was unavailing.
2. The trial court properly determined that the defendant’s defense with
respect to the rule against perpetuities did not defeat the finding of
probable cause because such rule concerned only the rights to property,
the oral management agreement did not create or transfer any right in
property, and the plaintiff did not claim any interest in the defen-
dant’s property.
3. The trial court properly determined that the defendant’s defense with
respect to the statute of frauds did not defeat the finding of probable
cause: the defendant’s argument that the oral management agreement
was unenforceable pursuant to statute (§ 52-550 (a) (4)) because the
plaintiff’s claims concerned real property was unavailing because the
trial court correctly determined that the agreement was for services
and did not confer any rights to an interest in real property; moreover,
the defendant’s argument that the oral management agreement was
unenforceable pursuant to § 52-550 (a) (5) because it was not to be
performed within one year from the making thereof was also unavailing
because the trial court determined that the agreement was one of indefi-
nite duration, and, accordingly, it was outside of the proscriptive force
of § 52-550 (a) (5) regardless of how long it would actually take to
complete performance.
Argued March 1—officially released August 30, 2022
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Noble,
J., granted the plaintiff’s application for a prejudgment
remedy, from which the named defendant appealed and
the plaintiff cross appealed to this court; thereafter, the
plaintiff withdrew its cross appeal. Affirmed.
Richard P. Weinstein, with whom, on the brief, was
Sarah Black Lingenheld, for the appellant (named
defendant).
Richard F. Wareing, with whom were Angela M.
Vickery and, on the brief, Anthony J. Natale, for the
appellee (plaintiff).
Opinion
ALVORD, J. The defendant Waterbury Omega, LLC1
appeals from the judgment of the trial court granting
the application for a prejudgment remedy in favor of
the plaintiff, Konover Development Corporation, upon
a finding of probable cause that the defendant had
breached an oral agreement for the plaintiff’s procure-
ment, management and accounting of building/rooftop
wireless telecommunications agreements on behalf of
the defendant. On appeal, the defendant claims that
the court improperly concluded that the plaintiff had
established probable cause in light of its defenses that
enforcement of the oral agreement was barred by (1)
General Statutes § 20-325a, (2) the rule against perpetui-
ties, and (3) the statute of frauds. We affirm the judg-
ment of the court.
The court found the following facts, which are undis-
puted.2 ‘‘[The defendant] is the owner of property
located at 330 Bishop Street, Waterbury (property), on
which is present a multistory building (building). In
2005, [the parties] entered into an oral contract, for no
specified term, in which [the plaintiff] agreed to act as
the property’s exclusive telecommunications managing
agent for the licensing of rooftop telecommunication[s]
equipment including antennas ([oral management]
agreement).3 Pursuant to the terms of the [oral manage-
ment] agreement, [the plaintiff] was to market, license
and collect usage payments in exchange for a commis-
sion of 30 percent of monthly receipts generated by
any license.
‘‘In 2005, [the plaintiff] procured two contracts for
the placement of wireless telecommunications equip-
ment on the building’s rooftop [collectively, the two
original leases]. The first was dated March 3, 2005, with
Nextel Communications of Mid-Atlantic, Inc. [(Nextel),
later Sprint] and the second was dated July 20, 2005,
with New Cingular Wireless PCS, LLC [(New Cingular),
later AT&T] . . . . In the two original leases, [the
defendant] acknowledged that ‘[the plaintiff] has been
appointed as [the defendant’s] telecommunications
managing agent4 for the [p]roperty and is compensated
by [the defendant] based on a percentage of the revenue
generated by this [l]ease and any future telecommunica-
tions leases pertaining to the [p]roperty.’ [The plaintiff]
was identified specifically as the third-party beneficiary
of the two [original leases], each identified as an
‘Antenna Facility Lease.’ The [two original leases] dif-
fered, pertinently, in that the contract with New Cingu-
lar included an equipment shelter adjacent to the build-
ing on the ground. . . .
‘‘Unbeknownst to [the plaintiff], [the defendant]
entered into additional, similar [building/rooftop wire-
less telecommunications agreements], with [Omnipoint
Communications, Inc., now known as T-Mobile (Omni-
point)] in 2006, with [Youghiogheny Communications-
Northeast, LLC, doing business as Pocket Communica-
tions (Pocket)] in 2009 and with [Cellco Partnership,
doing business as Verizon Wireless (Verizon)] in 2015.
At no time did [the defendant] pay [the plaintiff] a com-
mission for these additional contracts.5 From 2005
through 2016, [the plaintiff], without interruption, col-
lected the rent from the two original leases, remitted
70 percent to [the defendant] and reserved for itself
the 30 percent commission. In August of 2016, [the
defendant] began to collect the monthly payments for
the two original leases as a consequence of a freeze on
[the plaintiff’s] banking account that prevented [the
plaintiff] from issuing payments from its bank. There-
after, between August of 2016 and February of 2018, [the
defendant] only intermittently remitted the 30 percent
commission from the two original leases to [the plain-
tiff]. Repeated communications between [Matthew
Guglielmo, an agent of the plaintiff] and [the defen-
dant’s] representatives took place, in which payment
of the commissions was requested. The present action
was commenced on April 9, 2018. Ultimately, the com-
missions due pursuant to the two original leases were
paid through April of 2018. No further payment has
been made.’’ (Footnotes in original.)
The following procedural history is also relevant. The
plaintiff commenced this action in April, 2018, by way
of a complaint seeking a declaratory judgment. In the
complaint, the plaintiff alleged that the defendant had
made required payments ‘‘only under the threat of legal
action and only after counsel was engaged for both
parties . . . .’’ The plaintiff alleged that the defendant
had ‘‘repudiated its obligations under the [two original]
leases.’’ The plaintiff additionally alleged that, ‘‘[g]iven
[the defendant’s] repudiation of the parties’ [oral man-
agement] agreement, there is an actual bona fide and
substantial question or issue in dispute, which requires
settlement between the parties.’’
The plaintiff filed its third amended complaint in
August, 2019.6 In the nine count complaint, the plaintiff
alleged, inter alia, that the defendant had ‘‘not made
any payments to [the plaintiff] since April of 2018.’’ The
defendant filed an answer and asserted several special
defenses, including that the plaintiff had violated § 20-
325a and that enforcement of the oral management
agreement was barred by the statute of frauds and the
rule against perpetuities.
On August 2, 2019, the plaintiff filed an application
for a prejudgment remedy to ‘‘secure the sum of at least
$351,184,’’ which was accompanied by an affidavit of
the plaintiff’s president, Michael Konover.7 The court,
Noble, J., held a hearing on the application on August
20 and 21, 2020. The court heard the testimony of Gug-
lielmo, an agent of the plaintiff; Brian Allen, a wireless
and telecommunications consultant/expert for the
plaintiff; and Moishe Schwartz, a member of the defen-
dant.
The parties filed posthearing briefs. The defendant
argued therein: ‘‘First, the plaintiff’s claims are barred
by [§] 20-325a because [General Statutes §] 20-329 (9)
provides that [§] 20-325a is applicable and there can
be no dispute that the plaintiff did not have a written
agreement with [the defendant] that would fulfill the
requirements of such statute. Second, considering that
the plaintiff claims the purported oral management
agreement is perpetual (and in fact is seeking an order
that it is entitled to a percentage of revenue from any
future telecommunications agreements), enforcement
of the purported oral management agreement is barred
by the rule against perpetuities. Finally, the purported
oral management agreement is unenforceable pursuant
to the statute of frauds because the terms put forth by
the plaintiff (even if they could be proven) are inconsis-
tent with completion of the agreement within one year
such that the statute of frauds requires a written agree-
ment. Because all of the plaintiff’s claims (regardless
of the cause of action) are barred as a matter of law
by [§] 20-325a, the rule against perpetuities, and/or the
statute of frauds, the plaintiff is not entitled to a prejudg-
ment remedy even under the more lenient ‘probable
cause’ standard applicable thereto.’’ (Emphasis in origi-
nal.) The plaintiff argued that the defendant’s special
defenses with respect to § 20-325a and the statute of
frauds both failed and that the trial court already had
rejected the defendant’s special defense regarding the
rule against perpetuities in its memorandum of decision
denying the parties’ cross motions for summary judg-
ment.8
In its February 9, 2021 memorandum of decision, the
court granted the application for a prejudgment remedy
on the plaintiff’s breach of contract count. The court
determined that the plaintiff had ‘‘proven probable
cause that the parties entered into a valid and enforce-
able oral agreement for [the plaintiff] to provide the
exclusive marketing, licensing and management of
accounts for the placement of wireless telecommunica-
tion[s] equipment on the property and building in
exchange for payment of 30 percent of monthly receipts
therefrom. [The plaintiff] has also proved that the [oral
management agreement] was breached by [the defen-
dant’s] failure to remit the contracted for commission
from the subsequently obtained agreements with Omni-
point, Pocket, and Verizon.’’ The court expressly consid-
ered and rejected the defendant’s special defenses, con-
cluding that § 20-325a, the rule against perpetuities, and
the statute of frauds did not bar the plaintiff’s action.
The court then turned to the question of the amount
of damages that had been established by probable
cause. The court rejected the plaintiff’s contention that
it was entitled to recover not only past damages but
also ‘‘future damages extending throughout the life of
the Omnipoint, Verizon, and Pocket agreements.’’ The
court determined that the oral management agreement,
which was of indefinite duration, was terminable at will
and found that it was terminated by the defendant no
later than April, 2018. The court noted that it had been
presented with ‘‘no evidence of an express termination’’
but had determined that termination was evident ‘‘by
the conduct of [the defendant] inconsistent with its
perpetuation.’’ The court found that ‘‘[n]o payments of
any sort have been made by [the defendant] since April
of 2018, the date this action was commenced, and there
was no evidence received to indicate that [the defen-
dant] asked [the plaintiff] to perform any obligations
under the [oral management] agreement, all indicative
of an implicit termination of the [oral management]
agreement.’’
The court found that the plaintiff had proven probable
cause that it would recover damages based on its breach
of contract claim9 in the amount of $107,400.07, which
amount consisted of payments made to the defendant
from Omnipoint, Verizon, and Pocket through March
31, 2018, in the amount of $354,007.26, multiplied by
the commission rate of 30 percent. The court found
that no commissions were due for the two original
leases because they were paid through April, 2018.
Accordingly, the court ordered that the plaintiff may
attach the assets of the defendant in the amount of
$107,400.07. This appeal followed. On the same day that
the appeal was commenced, the plaintiff filed a motion
to reargue, reconsider, or correct the judgment, alleging
an error in the computation of damages, and the defen-
dant and Schwartz filed an objection. The court granted
the motion and corrected its previous order to reflect
that the plaintiff may attach the defendant’s assets in
the amount of $157,075.96.
Before turning to the claims on appeal, we first set
forth the law governing prejudgment remedies and our
limited role on review. ‘‘A prejudgment remedy means
any remedy or combination of remedies that enables
a person by way of attachment, foreign attachment,
garnishment or replevin to deprive the defendant in a
civil action of, or affect the use, possession or enjoy-
ment by such defendant of, his property prior to final
judgment . . . . General Statutes § 52-278a (d). A pre-
judgment remedy is available upon a finding by the
court that there is probable cause that a judgment in
the amount of the prejudgment remedy sought, or in
an amount greater than the amount of the prejudgment
remedy sought, taking into account any defenses, coun-
terclaims or set-offs, will be rendered in the matter in
favor of the plaintiff . . . . General Statutes § 52-278d
(a) (1). . . . Proof of probable cause as a condition of
obtaining a prejudgment remedy is not as demanding
as proof by a fair preponderance of the evidence. . . .
The legal idea of probable cause is a bona fide belief
in the existence of the facts essential under the law for
the action and such as would warrant a man of ordinary
caution, prudence and judgment, under the circum-
stances, in entertaining it. . . . Probable cause is a
flexible common sense standard. It does not demand
that a belief be correct or more likely true than false.
. . . Under this standard, the trial court’s function is
to determine whether there is probable cause to believe
that a judgment will be rendered in favor of the plaintiff
in a trial on the merits.’’ (Citations omitted; internal
quotation marks omitted.) TES Franchising, LLC v.
Feldman, 286 Conn. 132, 136–37, 943 A.2d 406 (2008).
‘‘Section 52-278d (a) explicitly requires that a trial
court’s determination of probable cause in granting a
prejudgment remedy include the court’s taking into
account any defenses, counterclaims or set-offs . . . .
Therefore, it is well settled that, in determining whether
to grant a prejudgment remedy, the trial court must
evaluate both parties’ evidence as well as any defenses,
counterclaims and setoffs. . . . Such consideration is
significant because a valid defense has the ability to
defeat a finding of probable cause.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Id., 141.
As for our standard of review, our Supreme Court
has stated that an appellate ‘‘court’s role on review of
the granting of a prejudgment remedy is very circum-
scribed. . . . In its determination of probable cause,
the trial court is vested with broad discretion which is
not to be overruled in the absence of clear error. . . .
Since Augeri [v. C. F. Wooding Co., 173 Conn. 426,
429, 378 A.2d 538 (1977)] . . . we have consistently
enunciated our standard of review in these matters. In
the absence of clear error, this court should not overrule
the thoughtful decision of the trial court, which has
had an opportunity to assess the legal issues which may
be raised and to weigh the credibility of at least some
of the witnesses. . . . [On appeal], therefore, we need
only decide whether the trial court’s conclusions were
reasonable under the clear error standard.’’ (Citations
omitted; internal quotation marks omitted.) TES Fran-
chising, LLC v. Feldman, supra, 286 Conn. 137–38.
Additionally, ‘‘we do not conduct a plenary review of the
merits of defenses . . . raised, but rather our review is
confined to a determination of whether the trial court’s
finding of probable cause constitutes clear error.’’ Id.,140 n.8.
I
We first consider the defendant’s claim on appeal
related to the court’s rejection of its special defense
that the plaintiff’s action was barred for its failure to
satisfy the requirements contained in § 20-325a. Specifi-
cally, § 20-325a bars the recovery of real estate commis-
sions unless certain requirements are satisfied, includ-
ing the requirement that the agreement be in writing.
Section 20-329, however, provides exceptions to the bar
against the recovery of commissions imposed by § 20-
325a. Specifically, § 20-329 (9) (A) provides an excep-
tion for leases or licenses of space on buildings of
unattended ‘‘ ‘personal wireless services facilities,’ ’’
related devices and ‘‘ancillary equipment used to oper-
ate such devices and equipment shelters therefor, in an
area not to exceed [360] square feet for any one service
. . . .’’ The defendant claims that the court improperly
determined that the exception set forth in § 20-329 (9)
applies and, therefore, that the plaintiff’s action is not
barred by § 20-325a. We agree with the trial court that
the plaintiff was exempt, pursuant to § 20-329 (9), from
the prerequisites set forth in § 20-325a. Accordingly, we
conclude that the court properly rejected the defen-
dant’s special defense.
The following procedural history is relevant. At the
hearing on the plaintiff’s application for a prejudgment
remedy, the plaintiff introduced the testimony of Allen,
a wireless and telecommunications consultant/expert.
Allen testified, inter alia, as to his physical examination
and measurement of the wireless installations at the
property. He further testified as to the industry standard
in measuring wireless installations. He testified that
each of the installations at issue were less than 360
square feet.
As background, Allen testified as to the components
of a wireless installation. Specifically, he testified:
‘‘Essentially, the cell tower consists of equipment—
which they may refer to as either ground equipment or
rooftop equipment—that’s placed either in a concrete
bunker or a metal bunker or placed on a concrete pad.
It would have things that look like refrigerators, which
are called equipment cabinets, or it could be in a room
in the basement of a building or on the top floor of a
building or it could be placed on a metal platform on
the roof. So those are just four examples of where the
base station equipment would be, or ground equipment,
or equipment room or equipment shelter, they’re all
synonymous. And then they would have antennas,
which would be located high in the air, so they can
provide coverage. And along with the antennas they
may have little boxes.’’
Allen further testified as to which components of a
wireless installation typically and customarily are con-
sidered for purposes of calculating the square footage of
the installation. He testified that landlords and tenants
‘‘consider the ground equipment or base station equip-
ment, which would consist of radio cabinets and various
other ancillary cabinets, like a power cabinet or a tele-
phone cabinet, and those are all contained on either
the concrete pad or within the concrete building or on
top of the platform on the roof or in the room, the
equipment room in the basement or top floor of a build-
ing.’’
Allen testified that they do not ‘‘count the antennas,’’
‘‘the wires that connect the antennas to the equipment,’’
or cable trays and explained why the industry custom
and practice is to exclude these items from the compu-
tation of square footage.10 Allen testified that antennas
are separately enumerated in wireless agreements. For
example, the Verizon agreement states that the defen-
dant would provide ‘‘approximately [40] square feet of
space . . . and approximately [170] square feet on the
roof’’ for its wireless installation. The agreement also
provides for ‘‘such additional space on the roof of the
[b]uilding’’ for the installation of antennas, which are
identified in exhibit B to the Verizon agreement only by
the number of antennas. Allen explained: ‘‘[I]n exhibit
B, it shows two sections of the roof and says ‘proposed
. . . lessee alpha sector panel antennas typical total of
four mounted within proposed concealment tubes atop
building roof,’ and it has another section where it refers
to beta [sector panel antennas] with another four. So
they have rights to eight antennas.’’ With respect to the
Nextel antennas, Allen testified that they were ‘‘facade
mounted,’’ meaning that the antennas ‘‘hang on the side
of the penthouse like a picture hanging on the wall.’’
Allen explained that ‘‘cable trays on a rooftop site
serve to cover the cables so the landlord can walk on
the roof or walk on top of it or . . . [t]hey can put
other wires on top and we don’t damage the wires
for AT&T or Verizon or whoever.’’ For example, Allen
testified with respect to the Omnipoint installation that
‘‘[a]ll the wires were contained underneath the plat-
form’’ and that ‘‘there were cable trays for Verizon and
AT&T underneath the Omnipoint . . . equipment.’’
With respect to wires, Allen testified that, ‘‘[i]n the
lease, we don’t count the square footage of wires
because wires don’t have square footage.’’ He also testi-
fied that ‘‘the lease is always silent on . . . wires
because the landlord has the ability to control the loca-
tion of the equipment shelter.’’ Specifically, Allen testi-
fied that, had the Nextel shelter been located on the
roof, the wires would have been attached in a similar
manner as the Omnipoint installation. Allen testified,
however, that Nextel was ‘‘forced to go on the ground,
so now they have some wires.’’ Thus, Allen did not
measure the wires running from the roof to the equip-
ment shelter located on the ground.
In its memorandum of decision, the court expressly
credited Allen’s testimony in determining that the plain-
tiff had ‘‘proven probable cause that the building/roof-
top wireless telecommunications agreements at issue
were for unattended personal wireless services facili-
ties, related services and ancillary equipment that did
not exceed 360 square feet for any one service.’’ Accord-
ingly, the court concluded that the exception set forth
in § 20-329 (9) applies, and, therefore, the plaintiff’s
action is not barred by § 20-325a.11
We first set forth the relevant statutes. Pursuant to
§ 20-325a, a licensed real estate broker or salesperson
may not institute an action to recover ‘‘any commission,
compensation or other payment’’ unless such broker
or salesperson acted pursuant to a written agreement.12
Section 20-329 provides in relevant part: ‘‘The provi-
sions of this chapter concerning the licensure of real
estate brokers and real estate salespersons shall not
apply to . . . (9) any person or such person’s regular
employee who, as owner, lessor, licensor, manager, rep-
resentative or agent manages, leases, or licenses space
on or in a tower, building or other structure for (A)
‘personal wireless services facilities’ or facilities for
‘private mobile service’ as those terms are defined in
47 USC 332, which facilities shall be unattended, and
the installation and maintenance of related devices
authorized by the Federal Communications Commis-
sion, and ancillary equipment used to operate such
devices and equipment shelters therefor, in an area
not to exceed [360] square feet for any one service
established by the Federal Communications Commis-
sion in 47 CFR, as amended from time to time, by a
provider of any such service, and (B) any right appro-
priate to access such facilities and connect or use utili-
ties in connection with such facilities.’’
Analysis of the defendant’s claim requires us to con-
strue § 20-329 (9). Ordinarily, we review a trial court’s
actions with respect to an application for a prejudgment
remedy for clear error. ‘‘In this case, however, the issue
raised by the defendant presents a question of statutory
interpretation requiring plenary review. . . . When
construing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Citation omitted; internal quota-
tion marks omitted.) A1Z7, LLC v. Dombek, 188 Conn.
App. 714, 718–19, 205 A.3d 740 (2019).
We first consider the defendant’s two related argu-
ments with respect to the admission of Allen’s testi-
mony as to the meaning of the statutory phrases ‘‘related
devices’’ and ‘‘ancillary equipment used to operate such
devices and equipment shelters therefor’’; General Stat-
utes § 20-329 (9) (A); as used in the wireless telecommu-
nications industry. First, the defendant argues that
Allen’s testimony improperly contravened the plain lan-
guage of the statute and that ‘‘a purported ‘industry
standard’ cannot be used to override and undermine
express statutory terms.’’ Second, the defendant argues
that Allen’s testimony was irrelevant because ‘‘[t]he
legislature, in dealing with its policy determination to
except certain functions from licensing requirements,
is not dealing with a telecommunications issue that
requires expert testimony, but a consumer protection
issue.’’ We disagree with both arguments and conclude
that the court properly admitted into evidence and
relied on Allen’s testimony in construing the statutory
language.
We note that the terms ‘‘related devices,’’ ‘‘ancillary
equipment,’’ and ‘‘equipment shelters’’ are not defined
in the statute. See General Statutes § 20-329. In the
absence of a statutory definition, we turn to General
Statutes § 1-1 (a), which provides: ‘‘In the construction
of the statutes, words and phrases shall be construed
according to the commonly approved usage of the lan-
guage; and technical words and phrases, and such as
have acquired a peculiar and appropriate meaning in
the law, shall be construed and understood accord-
ingly.’’ Our appellate courts have stated that ‘‘[t]echnical
terms can be legal terms as well as terms associated
with the trade or business with which a given statute
is concerned, and the terms in question should be
accorded the meaning which they would convey to an
informed person in the [applicable] trade or business.’’
(Internal quotation marks omitted.) Shoreline Shellfish,
LLC v. Branford, 336 Conn. 403, 411, 246 A.3d 470(2020); see also Berger, Lehman Associates, Inc. v.
State, 178 Conn. 352, 355–57, 422 A.2d 268 (1979) (word
‘‘design,’’ which was not defined in statute waiving sov-
ereign immunity for actions against state pursuant to
contracts for design of public works, would be read by
persons in field of engineering, who would ‘‘read the
statute’s words in their engineering sense,’’ and trial
court ‘‘concluded that the word ‘design’ has, in the engi-
neer’s lexicon, the same narrow definition’’ our
Supreme Court determined using dictionary); Manches-
ter v. Manchester Police Union, Local 1495, Council
15, AFSCME, 3 Conn. App. 1, 9, 484 A.2d 455 (1984)
(phrase ‘‘ ‘normal retirement age,’ while not having a
universally accepted definition, does have a commonly
accepted meaning which it would convey to an
informed person in the pension field’’ and such under-
standing is relevant to informing court’s determination
of meaning of synonymous and undefined statutory
phrase, ‘‘ ‘normal retirement date’ ’’).
The defendant’s arguments also implicate the stan-
dard for admissibility of expert testimony. Section 7-2 of
the Connecticut Code of Evidence provides: ‘‘A witness
qualified as an expert by knowledge, skill, experience,
training, education or otherwise may testify in the form
of an opinion or otherwise concerning scientific, techni-
cal or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or
in determining a fact in issue.’’ ‘‘It is well settled that
[t]he true test of the admissibility of [expert] testimony
is not whether the subject matter is common or uncom-
mon, or whether many persons or few have some
knowledge of the matter; but it is whether the witnesses
offered as experts have any peculiar knowledge or expe-
rience, not common to the world, which renders their
opinions founded on such knowledge or experience any
aid to the court or the jury in determining the questions
at issue. . . . Implicit in this standard is the require-
ment . . . that the expert’s knowledge or experience
must be directly applicable to the matter specifically
in issue.’’ (Citations omitted; internal quotation marks
omitted.) Sullivan v. Metro-North Commuter Railroad
Co., 292 Conn. 150, 158–59, 971 A.2d 676 (2009). ‘‘The
court’s decision [as to the admissibility of an expert’s
opinion] is not to be disturbed unless [its] discretion
has been abused, or the error is clear and involves a
misconception of the law.’’ (Internal quotation marks
omitted.) Caciopoli v. Lebowitz, 131 Conn. App. 306,
322, 26 A.3d 136 (2011), aff’d, 309 Conn. 62, 68 A.3d
1150 (2013).
In the present case, the court was called on to con-
strue and apply the undefined, technical terms present
in the statute, and, pursuant to § 1-1 (a), the terms were
to be accorded the meaning that they would convey to
an informed person in the applicable trade.13 It was
reasonable for the court to accept Allen, who had
worked in the wireless industry for nineteen years, as
an informed person in the applicable trade. Thus, Allen’s
testimony as to the wireless industry’s custom and prac-
tice appropriately aided the court in determining the
meaning of the technical terms within the statute, and
the defendant has not shown that the court abused its
discretion. Accordingly, we conclude that it was not
improper for the court to rely on Allen’s testimony in
determining the meaning of the statutory language.
Having determined that the court did not abuse its
discretion in admitting and relying on Allen’s testimony,
we turn to the defendant’s arguments concerning the
court’s interpretation of the statute. The defendant
points to federal law to support its argument that ‘‘the
area occupied by any antennas and any equipment,
switches, wiring, cabling, power sources, shelters, or
cabinets associated with an antenna must be included
in the square footage calculation of ‘personal wireless
services facilities’ set forth in [§] 20-329 (9).’’ The defen-
dant argues that ‘‘[t]he [federal] statutory definition of
‘antennas’ and other related terms, makes clear that
they are a component of ‘personal wireless services
facilities’ and thus would be required to be included in
any square footage calculation under [§] 20-329 (9).’’
The defendant directs this court’s attention to 47 U.S.C.
§ 332 (c) (7) (C), which defines ‘‘ ‘personal wireless
service facilities’ ’’ as ‘‘facilities for the provision of
personal wireless services’’ and ‘‘ ‘personal wireless ser-
vices’ ’’ as ‘‘commercial mobile services, unlicensed
wireless services, and common carrier wireless
exchange access services . . . .’’ The defendant
emphasizes that 47 U.S.C. § 332 contains additional defi-
nitions of services and equipment, which it contends
‘‘advances the point that these facilities each contain
multiple components that are required for the facilities
to function.’’14 The defendant further points to title 47
of the Code of Federal Regulations, § 1.6002 (b), which
provides that ‘‘[a]ntenna, consistent with § 1.1320 (d),
means an apparatus designed for the purpose of emit-
ting radiofrequency (RF) radiation, to be operated or
operating from a fixed location pursuant to Commission
authorization, for the provision of personal wireless
service and any commingled information services. For
purposes of this definition, the term antenna does not
include an unintentional radiator, mobile station, or
device authorized under part 15 of this chapter.’’ The
defendant also relies on the additional definitions of
‘‘antenna equipment,’’ ‘‘antenna facility,’’ and ‘‘facility’’15
as demonstrating that ‘‘the terms are components of,
and not merely ancillary to, personal wireless service
facilities’’ and, thus, the area occupied by such compo-
nents must be included in the square footage calculation
pursuant to § 20-329 (9).
We disagree with the defendant that the definitions
contained within 47 U.S.C. § 332 and the Code of Fed-
eral Regulations necessitate a conclusion that the space
occupied by antennas is required to be included within
the square footage calculation for purposes of § 20-329
(9). Section 20-329 (9) (A) refers to 47 U.S.C. § 332 for
its definitions of the terms ‘‘ ‘personal wireless services
facilities’ ’’ and facilities for ‘‘ ‘private mobile service’
. . . .’’ Neither of those definitions, however, relates to
the measurement of any physical structures. Moreover,
the reference contained in § 20-329 (9) (A) to title 47
of the Code of Federal Regulations is to ‘‘any one ser-
vice’’ as established by the Federal Communications
Commission in the federal regulations. Again, the refer-
ence to the federal regulations does not relate to mea-
surement. Thus, we reject the defendant’s challenge
rooted in the federal definitions.
We find persuasive the plaintiff’s contention in its
appellate brief that Allen’s testimony was consistent
with the building/rooftop wireless telecommunications
agreements. For example, the Omnipoint agreement
indicated a ‘‘proposed 15’ x 15’ lease area and equipment
platform,’’ and the antenna was not included within that
area. The Nextel agreement indicated an equipment
shelter measuring twelve feet by twenty feet located
on the roof. Similarly, the Verizon agreement states
that the defendant would provide ‘‘approximately [40]
square feet of space . . . and approximately [170]
square feet on the roof’’ for its wireless installation and
separately enumerates the number of antennas. The
New Cingular agreement indicates a proposed equip-
ment shelter measuring twelve feet by twenty feet. As
to Pocket, Allen testified that the lease did not give an
indication of the size of the installation at the property,
and there was no installation at the property when Allen
visited. However, Allen previously had worked as a
leasing agent for Pocket and testified that Pocket ‘‘typi-
cally leased for a small concrete pad, at least six feet
by ten feet at a maximum.’’
The defendant next argues that the court improperly
failed to acknowledge that § 20-329 (9) ‘‘provides for
an exception for a single wireless facility while there are
multiple wireless facilities at issue here.’’ The defendant
contends that the phrase ‘‘for any one service’’ con-
tained in § 20-329 (9) logically ‘‘refers to the role of the
broker (i.e., the person that the statutory scheme seeks
to regulate) such that a person acting in such role ‘for
any one service’ is exempted from licensing require-
ments while a person acting in such role for multiple
providers is not.’’
We disagree with the defendant’s proposed construc-
tion, which is unreasonable in that it wholly ignores
the context of the phrase at issue. The larger clause
provides in relevant part: ‘‘[I]n an area not to exceed
[360] square feet for any one service established by the
Federal Communications Commission . . . by a pro-
vider of any such service . . . .’’ General Statutes § 20-
329 (9) (A). Thus, the logical reading of this phrase is
that the 360 square foot limitation applies to each ‘‘ser-
vice established by the Federal Communications Com-
mission . . . .’’ General Statutes § 20-329 (9) (A). ‘‘We
will not torture the words or sentence structure of a
statute to import an ambiguity where the ordinary
meaning of the language leaves no room for it.’’ (Internal
quotation marks omitted.) Mosby v. Board of Educa-
tion, 191 Conn. App. 280, 286, 214 A.3d 400 (2019), cert.
denied, 335 Conn. 939, 237 A.3d 1 (2020). Accordingly,
we reject the defendant’s proposed interpretation.
The defendant’s final argument is that the court
improperly determined that the exception set forth in
§ 20-329 (9) applied because it failed to give meaning
to the statutory language providing that the wireless
facilities were required to be ‘‘in an area not to exceed
[360] square feet . . . .’’ General Statutes § 20-329 (9)
(A). The defendant contends that Allen improperly
added together the square footage of certain compo-
nents rather than measuring the area in which the com-
ponents were contained. Specifically, the defendant
points to the Verizon installation, which was comprised
of a forty square foot generator on the ground and a
seventy square foot equipment platform on the roof.
The defendant poses the following question: ‘‘If one
part of a wireless installation is 1000 feet from the other
part, how can one say that the two parts are contained
in an area of less than 360 square feet?’’ We are not
persuaded by the defendant’s argument that, because
certain components of the installation are separated
between the ground and the roof, the installation cannot
be considered to be within an area not to exceed 360
square feet.
Accordingly, we conclude that the court properly
considered the defendant’s special defense that the
plaintiff’s claims are barred by § 20-325a and properly
determined that such defense did not defeat a finding
of probable cause.
II
The defendant’s second claim on appeal is that the
court improperly determined that enforcement of the
oral management agreement is not barred by the rule
against perpetuities.
The following additional procedural history is rele-
vant to our resolution of this claim. In its memorandum
of decision on the application for a prejudgment rem-
edy, the court referenced its previous summary judg-
ment decision as holding ‘‘that neither the common-
law nor the statutory rules against perpetuities applied
because the [oral management] agreement provided an
immediate fixed right to a present or future enjoyment
of a lease or license related contract.’’ In the summary
judgment decision, the court considered both the com-
mon-law and statutory rules, noting that both rules
‘‘implicate only interests that are not vested at the time
of creation. Where a party has an immediate fixed right
to a present or future enjoyment, the rule is inapplicable
even where the right extends in apparent perpetuity.’’
The court stated that, ‘‘[i]n the present case, whatever
rights [the plaintiff] possessed vested upon execution
of the agreements. Thus, neither the common-law [n]or
statutory rule of perpetuit[ies] bars the present
action.’’16
The defendant argues on appeal that only the com-
mon-law rule is applicable to the present case. The
defendant argues that the plaintiff’s rights vested not
at the time of the oral management agreement, but when
the defendant later entered into the building/rooftop
wireless telecommunications agreements. According to
the defendant, the plaintiff had no rights with respect
to the defendant’s property until the building/rooftop
wireless telecommunications agreements came into
existence, and the plaintiff’s claim to a percentage of
revenue from ‘‘any future telecommunications leases’’;
(emphasis omitted); is ‘‘just the sort of perpetual inter-
est that the rule against perpetuities is intended to pre-
vent.’’ The plaintiff responds that the rule against perpe-
tuities does not apply because the trial court’s order
with respect to the prejudgment remedy addressed only
whether the plaintiff had shown probable cause that it
could prove breach of contract under the oral manage-
ment agreement. Because the oral management agree-
ment created no property rights in the plaintiff, the
plaintiff contends that it is outside the scope of the rule
against perpetuities.17
‘‘The rule against perpetuities states that [n]o interest
is good unless it must vest, if at all, not later than twenty-
one years after some life in being at the creation of the
interest.’’ (Internal quotation marks omitted.) Tolland
Enterprises v. Commissioner of Transportation, 36
Conn. App. 49, 53 n.2, 647 A.2d 1045 (1994). ‘‘The under-
lying and fundamental purpose of the common law rule
against perpetuities is the protection of society by
allowing full utilization of land. As commonly noted,
[t]he rule [against perpetuities] evolved to prevent . . .
property from being fettered with future interests so
remote that the alienability of the land and its market-
ability would be impaired, preventing its full utilization
for the benefit of society at large as well as of its current
owners.’’ (Internal quotation marks omitted.) Id., 54.
‘‘The rule against perpetuities concerns rights of prop-
erty only, and does not affect the making of contracts
which do not create rights of property.’’ (Internal quota-
tion marks omitted.) H. J. Lewis Oyster Co. v. West,
93 Conn. 518, 529, 107 A. 138 (1919); see also 61 Am.
Jur. 2d 63, Perpetuities, Etc. § 53 (1981) (same); 70
C.J.S. 385–86, Perpetuities § 10 (2005) (‘‘[t]he rule
against perpetuities is a restriction on the right of the
disposition of property, and is by far the most important
restraint which the law places on the right to create
future interests’’ (footnote omitted)).
In the present case, the oral management agreement
at issue does not create or transfer any right in property,
and the plaintiff does not claim any interest in the defen-
dant’s property.18 The rights at issue are illustrated by
the plaintiff’s requested recovery, which is limited to
the portion of the monthly rent it claims it was entitled
to under the oral management agreement. The defen-
dant has not directed this court to any authority sup-
porting the applicability of the rule against perpetuities
to the type of agreement at issue in the present case.
Accordingly, we conclude that the court properly deter-
mined that the defendant’s defense with respect to the
rule against perpetuities did not defeat a finding of
probable cause.
III
The defendant’s final claim on appeal is that the court
improperly determined that the statute of frauds did
not bar enforcement of the oral management agree-
ment. First, it contends that General Statutes § 52-550
(a) (4) applies on the basis that the plaintiff’s claims
‘‘concern real property . . . .’’ Second, it contends that
‘‘[t]he trial court also erroneously held that the statute
of frauds did not apply because the [oral] management
agreement was of indefinite duration and, thus, was not
a contract not to be performed within one year.’’ We
examine each argument in turn.
The following additional facts and procedural history
are relevant to our resolution of this claim. In its memo-
randum of decision on the application for a prejudgment
remedy, the court concluded that the defendant’s reli-
ance on the statute of frauds as a special defense was
unavailing. It stated that the defendant’s ‘‘assertion,
without citation to authority, that the [oral manage-
ment] agreement falls within the purview of the statute
of frauds because it is an agreement ‘for any interest
in or concerning real property,’ ignores that what is at
issue is an agreement for services that is not within the
purview of § 52-550 (a) (4).’’ It next determined that
§ 52-550 (a) (5) likewise did not bar enforcement of
the oral management agreement on the basis that the
agreement is a contract of indefinite duration.
Section 52-550 (a) provides in relevant part: ‘‘No civil
action may be maintained in the following cases unless
the agreement, or a memorandum of the agreement, is
made in writing and signed by the party, or the agent
of the party, to be charged . . . (4) upon any agreement
for the sale of real property or any interest in or concern-
ing real property; [or] (5) upon any agreement that is
not to be performed within one year from the making
thereof . . . .’’ ‘‘Under Connecticut law, the statute of
frauds operates as a special defense to a civil action.
. . . Its function is evidentiary, to prevent enforcement
through fraud or perjury of contracts never in fact
made.’’ (Citation omitted; internal quotation marks
omitted.) Patrowicz v. Peloquin, 190 Conn. App. 124,
138, 209 A.3d 1233, cert. denied, 333 Conn. 915, 216
A.3d 651 (2019). ‘‘The primary purpose of the statute
of frauds is to provide reliable evidence of the existence
and the terms of the contract . . . .’’ (Internal quota-
tion marks omitted.) Reid & Riege, P.C. v. Bulakites,
132 Conn. App. 209, 217, 31 A.3d 406 (2011), cert. denied,
303 Conn. 926, 35 A.3d 1076 (2012).
The defendant first argues that the plaintiff claims
an interest in the building/rooftop wireless telecommu-
nications agreements, ‘‘as well as claiming an interest
in any future agreements with any cellular providers.
Because the cellular agreements convey an interest in
land (albeit only as to a portion of the premises), the
plaintiff’s claims here concern real property and, thus,
the statute of frauds applies pursuant to [§] 52-550
(a) (4).’’
This argument is unpersuasive, as it is premised on
the defendant’s assertion that the plaintiff’s claims ‘‘con-
cern real property . . . .’’ In determining that the plain-
tiff had shown probable cause with respect to its breach
of contract claim, the court correctly noted that the oral
management agreement is one for services. Specifically,
the court stated that, pursuant to the oral management
agreement, the plaintiff was ‘‘to market, license and
collect usage payments in exchange for a commission
of 30 percent of monthly receipts generated by any
license.’’ The oral management agreement did not con-
fer on the plaintiff any rights to an interest in or concern-
ing real property. See Pagano v. Ippoliti, 245 Conn.
640, 645, 647, 716 A.2d 848 (1998) (contract claims as
formulated by plaintiff were for damages arising out of
loss of financial, rather than real property, interests in
development project, and, as such, contracts did not
violate § 52-550 (a) (4)). Accordingly, we conclude that
the court properly determined that the defendant’s
defense with respect to § 52-550 (a) (4) did not defeat
a finding of probable cause.
With respect to the defendant’s argument that the oral
management agreement was unenforceable because it
was not to be performed within one year from the
making thereof; see General Statutes § 52-550 (a) (5);
we conclude that the court properly relied on C. R.
Klewin, Inc. v. Flagship Properties, Inc., 220 Conn.
569, 583–84, 600 A.2d 772 (1991). In that case, our
Supreme Court held that ‘‘an oral contract that does
not say, in express terms, that performance is to have
a specific duration beyond one year is, as a matter of
law, the functional equivalent of a contract of indefinite
duration for the purposes of the statute of frauds. Like
a contract of indefinite duration, such a contract is
enforceable because it is outside the proscriptive force
of the statute regardless of how long completion of
performance will actually take.’’ Id.19 In the present
case, the court determined that the oral management
agreement was of indefinite duration.20 Accordingly, we
conclude that the court properly determined that the
defendant’s defense with respect to § 52-550 (a) (5) did
not defeat a finding of probable cause.
Therefore, we conclude that the court’s finding of
probable cause did not constitute clear error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Moishe Schwartz, a member of Waterbury Omega, LLC, also is named
as a defendant in this action. Schwartz is not participating in this appeal,
and we therefore refer in this opinion to Waterbury Omega, LLC, as the
defendant.
2
The defendant states in its principal appellate brief that it is not contesting
on appeal the existence of the oral management agreement. Its only claims
on appeal relate to its contention that such agreement is unenforceable.
3
‘‘While the parties contemplated the execution of a written management
contract, none of them were able to locate an executed copy.’’
4
‘‘The New Cingular lease provides that [the plaintiff] is the ‘exclusive
telecommunications managing agent’ while the Nextel lease omits the word
‘exclusive’ and provides only that [the plaintiff] has been ‘appointed as [the
defendant’s] telecommunications managing agent.’ ’’
5
‘‘These three agreements and the [two original leases] are collectively
referred to as the building/rooftop wireless telecommunication[s] agree-
ments.’’
6
The complaint subsequently has been amended twice more, and the
defendant has filed an answer to the fifth amended complaint. The amend-
ments do not affect this court’s analysis with respect to the propriety of
the prejudgment remedy on the plaintiff’s breach of contract claim.
7
In the affidavit accompanying the application for a prejudgment remedy,
Konover averred: ‘‘The total amount that [the plaintiff] seeks in this prejudg-
ment remedy is $351,184 in addition to reasonable attorney’s fees. That
to receive from the [two original leases] from May of 2018 through December
of 2020, (2) the 30 percent share that [the plaintiff] would have received
from the [agreements with Omnipoint and Verizon] from the date each such
agreement became effective through December of 2020; and (3) simple
interest at a rate of 10 percent per year through December of 2020, on all
amounts [the plaintiff] would have received as set forth in (1) and (2).’’
8
In January, 2019, the defendant filed a motion for summary judgment,
arguing that the plaintiff’s claims were barred by § 20-325a on the basis that
there was no written agreement between the parties. In April, 2019, the
plaintiff filed a cross motion for summary judgment, arguing that the require-
ments in § 20-325a were not applicable because the building/rooftop wireless
telecommunications agreements were licenses and not leases, that even if
the agreements were considered leases, the exception contained in § 20-
329 (9) applied, and that the rule against perpetuities did not bar the plaintiff’s
claims. On April 23, 2020, the court issued a memorandum of decision in
which it denied both motions for summary judgment. The court determined
that the agreements were not barred by the rule against perpetuities but
found that there were genuine issues of material fact ‘‘as to whether the
agreements [fell] within the exception articulated in § 20-329.’’
9
The court determined that the plaintiff had not established probable
cause that it would recover under a theory of negligent misrepresentation
against the defendant or Schwartz. The plaintiff filed a cross appeal as
to the denial, in part, of its application for a prejudgment remedy, but it
subsequently withdrew the cross appeal.
10
Allen also testified that radio heads typically are not counted toward
square footage. He described a radio head as ‘‘a small box about half the
size of a carry-on suitcase which works with the antennas. It’s a new technol-
ogy that came up after the leases existed.’’ With respect to the New Cingular
installation, Allen testified: ‘‘I measured the RRUs, which are remote radio
heads; they sat on ballast mounted sleds on the roof. They’re typically not
counted because they’re considered antenna articles. So I measured them
because they were there, but I would not have counted them in the lease.
If you go into the lease documents, there’s a consent letter that allows for
the placement of them there, which has no reference to any square footage
that they take up, just that they exist.’’ Allen testified generally that even
when including radio heads in his square footage calculation, each installa-
tion still occupied less than 360 square feet.
11
In its appellate brief, the plaintiff contends that the defendant’s claim
regarding the applicability of § 20-329 (9) is moot because it challenged only
one of two independent bases for the court’s determination that § 20-325a
was inapplicable. Specifically, the plaintiff maintains that the court’s decision
rested on two separate bases: (1) that the plaintiff’s action was not barred
by § 20-325a because the building/rooftop wireless telecommunications
agreements at issue relate to licenses rather than interests in real estate,
and (2) that if § 20-325a applies, the exception contained in § 20-329 (9) also
applies. We disagree with this construction of the court’s decision.
In its memorandum of decision on the application for a prejudgment
remedy, the court referenced its decision on the parties’ cross motions for
summary judgment; see footnote 8 of this opinion; and stated: ‘‘In brief, the
court concluded, therein, that the plaintiff’s action is not barred by § 20-
325a because the agreements at issue relate to licenses, an interest that is
not an ‘estate’ or an ‘interest in real estate,’ which are the objects of that
statute. . . . Moreover . . . § 20-329 (9) expressly provides an exception
to the bar imposed by § 20-325a for leases or licenses of space on buildings
of unattended ‘personal wireless services facilities,’ related devices and
ancillary equipment, including equipment shelters in an area not to exceed
360 square feet for any one service. In the [summary judgment] decision,
the court found a question of material fact existed as to the size of the
facilities, devices and ancillary equipment involved. . . . As of the [prejudg-
ment remedy] application, however, the court credits the testimony of Allen
and finds that [the plaintiff] has proven probable cause that the building/
rooftop wireless telecommunications agreements at issue were for unat-
tended personal wireless services facilities, related services and ancillary
equipment that did not exceed 360 square feet for any one service. Accord-
ingly, § 20-325a does not bar this action.’’ (Citations omitted; footnote omit-
ted.)
We do not construe the court’s reference to its prior decision as constitut-
ing an independent basis for its decision on the application for a prejudgment
remedy. Accordingly, we reject the plaintiff’s contention that the defendant’s
claim is moot.
12
General Statutes § 20-325a provides in relevant part: ‘‘(b) No person,
licensed under the provisions of this chapter, shall commence or bring any
action with respect to any acts done or services rendered . . . as set forth
in subsection (a), unless the acts or services were rendered pursuant to a
contract or authorization from the person for whom the acts were done or
services rendered. To satisfy the requirements of this subsection any contract
or authorization shall: (1) Be in writing, (2) contain the names and addresses
of the real estate broker performing the services and the name of the person
or persons for whom the acts were done or services rendered, (3) show
the date on which such contract was entered into or such authorization
given, (4) contain the conditions of such contract or authorization, (5) be
signed by the real estate broker or the real estate broker’s authorized agent,
(6) if such contract or authorization pertains to any real property, include
the following statement: ‘THE REAL ESTATE BROKER MAY BE ENTITLED
TO CERTAIN LIEN RIGHTS PURSUANT TO SECTION 20-325a OF THE
CONNECTICUT GENERAL STATUTES’, and (7) be signed by the person
or persons for whom the acts were done or services rendered or by an
agent authorized to act on behalf of such person or persons . . . .’’
13
We note that the defendant does not argue broadly on appeal that expert
testimony is inadmissible generally to aid the court in defining technical
terms contained within statutes, and courts in other jurisdictions have recog-
nized that ‘‘[r]eliance on expert definitions of terms of art is a sound general
rule of construction . . . .’’ (Internal quotation marks omitted.) Shell Petro-
leum, Inc. v. United States, 182 F.3d 212, 220 (3d Cir. 1999); see also
Dynacon, Inc. v. D & S Contracting, Inc., 120 N.M. 170, 177, 899 P.2d 613(1995) (recognizing that ‘‘interpretation of technical language in a statute
can and should be informed by evidence concerning how those technical
terms are interpreted by experts in the pertinent field’’).
14
The defendant cites the following definitions contained in 47 U.S.C.
§ 332 (d): ‘‘For purposes of this section—
‘‘(1) the term ‘commercial mobile service’ means any mobile service (as
defined in section 153 of this title) that is provided for profit and makes
interconnected service available (A) to the public or (B) to such classes of
eligible users as to be effectively available to a substantial portion of the
public, as specified by regulation by the Commission;
‘‘(2) the term ‘interconnected service’ means service that is interconnected
with the public switched network (as such terms are defined by regulation
by the Commission) or service for which a request for interconnection is
pending pursuant to subsection (c) (1) (B) . . . .’’
The defendant also cites 47 U.S.C. § 153, which provides in relevant part:
‘‘For the purposes of this chapter, unless the context otherwise requires . . .
***
‘‘(29) The term ‘land station’ means a station, other than a mobile station,
used for radio communication with mobile stations.
***
‘‘(33) The term ‘mobile service’ means a radio communication service
carried on between mobile stations or receivers and land stations, and by
mobile stations communicating among themselves, and includes (A) both
one-way and two-way radio communication services, (B) a mobile service
which provides a regularly interacting group of base, mobile, portable, and
associated control and relay stations (whether licensed on an individual,
cooperative, or multiple basis) for private one-way or two-way land mobile
radio communications by eligible users over designated areas of operation,
and (C) any service for which a license is required in a personal communica-
tions service established pursuant to the proceeding entitled ‘Amendment
to the Commission’s Rules to Establish New Personal Communications
Services’ (GEN Docket No. 90-314; ET Docket No. 92-100), or any successor
proceeding.
‘‘(34) The term ‘mobile station’ means a radio-communication station
capable of being moved and which ordinarily does move.
***
‘‘(40) The term ‘radio communication’ or ‘communication by radio’ means
the transmission by radio of writing, signs, signals, pictures, and sounds of
all kinds, including all instrumentalities, facilities, apparatus, and services
(among other things, the receipt, forwarding, and delivery of communica-
tions) incidental to such transmission. . . .’’
15
Title 47 of the 2021 edition of the Code of Federal Regulations, § 1.6002,
provides in relevant part: ‘‘(c) Antenna equipment, consistent with § 1.1320
(d), means equipment, switches, wiring, cabling, power sources, shelters or
cabinets associated with an antenna, located at the same fixed location as
the antenna, and, when collocated on a structure, is mounted or installed
at the same time as such antenna.
‘‘(d) Antenna facility means an antenna and associated antenna equipment.
***
‘‘(i) Facility or personal wireless service facility means an antenna facility
or a structure that is used for the provision of personal wireless service,
whether such service is provided on a stand-alone basis or commingled
with other wireless communications services. . . .’’
16
In considering the rule against perpetuities at the summary judgment
stage, the court’s decision rested on its determination that the plaintiff’s
rights ‘‘vested upon execution of the agreements.’’ As both parties recognize,
the prejudgment remedy was limited to the plaintiff’s claim of breach of
the oral management agreement. Thus, the agreement under which the
court determined that the plaintiff had vested rights in connection with the
prejudgment remedy application is the oral management agreement.
17
Although the trial court did not reject the defendant’s special defense
on this basis, we consider the plaintiff’s argument on appeal because the
defendant had an adequate opportunity to respond in its reply brief and
because the argument was preserved in the trial court, where the plaintiff
argued in posthearing briefing that the interest at issue constituted 30 percent
of the revenue generated from the wireless providers at the property and
did not concern any restraints on the alienation of property, and, thus, the
rule against perpetuities did not apply.
Moreover, in rejecting the defendant’s statute of frauds special defense,
the court rejected the defendant’s argument that the oral management agree-
ment is an agreement ‘‘ ‘for any interest in or concerning real property’ ’’
and found that the agreement was one for services.
18
When asked during oral argument before this court whether the plaintiff
had taken the position before the trial court that the oral management
agreement runs with the land, the plaintiff’s counsel represented that it had
not taken that position.
19
Outside of a discussion of C. R. Klewin, Inc. v. Flagship Properties,
Inc., supra, 220 Conn. 583–84, the defendant’s only citation to authority in
support of its argument with respect to § 52-550 (a) (5) is to Redgate v.
Fairfield University, 862 F. Supp. 724, 729–30 (D. Conn. 1994), in which
the United States District Court for the District of Connecticut determined
that a former employee’s breach of contract claims did not meet the require-
ments of the statute of frauds when he allegedly had been assured employ-
ment for ten or twenty years. This decision is distinguishable on its facts.
20
The defendant indirectly attacks the trial court’s finding that the oral
management agreement was of indefinite duration by asserting that its
enforcement is barred by the statute of frauds because (1) an unsigned draft
management agreement provided for a two year term with two, two year
extensions; and (2) ‘‘the [building/rooftop wireless telecommunications]
agreements as to which the plaintiff claims an interest all include express
terms of more than one year.’’ First, we do not find clear error in the
court’s determination that the oral management agreement was of indefinite
duration on the basis of the terms of the unsigned draft agreement. ‘‘Weighing
the evidence and judging the credibility of the witnesses is the function of
the trier of fact and this court will not usurp that role.’’ (Internal quotation
marks omitted.) TES Franchising, LLC v. Feldman, supra, 286 Conn. 143.
Second, the court expressly declined to address the plaintiff’s contention
that it was a third-party beneficiary under the two original leases. The court
concluded only that the plaintiff had proven probable cause of recovery
pursuant to the oral management agreement. Accordingly, we reject the
defendant’s statute of frauds arguments premised on the unsigned agreement
and the two original leases.