Meribear Productions, Inc. v. Frank

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MERIBEAR PRODUCTIONS, INC. v.
JOAN E. FRANK ET AL.
(SC 20473)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff, M Co., which had obtained a judgment in California against
the defendants, J and G, sought to enforce that judgment in Connecticut
and to recover damages in connection with a home staging services and
lease agreement between the parties. Pursuant to the agreement, M Co.,
a California corporation, was to provide design and decorating services,
including the delivery and installation of rental furniture and décor, for
the purpose of making the defendants’ Connecticut residence more
attractive to potential buyers. J was the sole signatory to the agreement,
but M Co. negotiated the agreement exclusively with G. The lease
required an initial payment and had an initial term of four months. If
the residence was not sold within that term, the lease would continue
on a month-to-month basis at a monthly rate. One provision of the
agreement contained both a choice of law clause, providing that Califor-
nia law governed the agreement, and a forum selection clause, which
vested courts in Los Angeles, California, with jurisdiction over disputes
arising under the agreement and provided that the parties consented to
the jurisdiction of that court. Beneath that provision, G amended the
choice of law clause, writing in that, ‘‘[s]ince this is a contract for an
agreement taking place in the state of Connecticut, Connecticut laws
will [supersede] those of California.’’ Additionally, although G did not
sign the agreement, he signed an addendum to the agreement authorizing
M Co. to charge his credit card for the initial payment. G made the
initial payment to M Co., which then delivered and installed the rental
furniture and décor. Thereafter, the defendants defaulted on their pay-
ment obligations. The defendants denied M Co. access to the premises
when it attempted to repossess its furniture and décor, which ultimately
remained in the residence for approximately three years. M Co. filed an
action in California Superior Court, which rendered a default judgment
against the defendants after they failed to appear. When the default
judgment remained unsatisfied, M Co. filed the present action, seeking
enforcement of the California judgment and alleging breach of contract
and quantum meruit. As to the claim seeking enforcement of the Califor-
nia judgment, the trial court concluded that the California court lacked
personal jurisdiction over J, but not over G, and that the California
court’s judgment was entitled to full faith and credit as to G. As to the
breach of contract claim, the court found that J had breached the home
staging services agreement. In doing so, it rejected J’s special defense
that the agreement was unenforceable because it failed to comply with
certain provisions of the Home Solicitation Sales Act (§ 42-134a et seq.)
(HSSA). The court specifically determined that a home staging agree-
ment, which involves the use of goods and services to facilitate the sale
or rental or real property, was excluded from the purview of the HSSA,
which exempts transactions ‘‘pertaining to the sale or rental of real
property’’ from its requirements. Accordingly, the trial court rendered
judgment for M Co. and against G in connection with the enforcement
of the California judgment and awarded M Co. the full amount of that
judgment. In connection with the breach of contract claim, the court
rendered judgment for M Co. and against J, and awarded M Co. damages
for the conversion of M Co.’s furniture and décor, as well as for the
associated rental loss of that inventory. Having done so, the court
declined to address M Co.’s quantum meruit claim as to J. Thereafter,
M Co. withdrew the breach of contract and quantum meruit claims as
to G, and the defendants appealed. Held:
1. The trial court correctly concluded that the California court had personal
jurisdiction over G, G having consented to jurisdiction in California by
virtue of the agreement’s forum selection clause, and, accordingly, the
trial court properly found that the California judgment was enforceable
against G: although a nonsignatory to a contract generally is not bound
by a forum selection clause contained therein, under the ‘‘closely related’’
doctrine, a nonsignatory may be bound by that clause if he was so
intimately involved in the negotiation, formation, execution, or ratifica-
tion of the contract that it was reasonably foreseeable that he would
be bound by it, considering factors such as the nonsignatory’s relation-
ship to the signatory and whether the nonsignatory received a direct
benefit from the agreement; in the present case, the defendants did not
dispute that the forum selection clause in the agreement was valid and
enforceable, and G was so closely related to the agreement that he was
bound by its forum selection clause, especially when G was married to
J and lived in the residence she owned, in which they wrongfully used
M Co.’s inventory for three years; moreover, in addition to receiving a
direct benefit under the agreement, only G, and not J, participated in
the negotiations, he made a substantive change to the agreement prior
to its execution, notably amending the choice of law clause while leaving
the forum selection clause in that same provision untouched, and he
executed an addendum to the agreement, pursuant to which he author-
ized the sole payment made to M Co. that prompted M Co.’s full perfor-
mance of its contractual obligations.
2. The defendants could not prevail on their claim that the home staging
services agreement was unenforceable due to M Co.’s noncompliance
with certain provisions of the HSSA, as the trial court correctly con-
cluded that the transaction between the parties was not a ‘‘home solicita-
tion sale,’’ as defined therein, and, therefore, was outside the purview
of the HSSA: the provisions of the HSSA apply only to ‘‘home solicitation
sale[s],’’ the statutory (§ 42-134a (a) (5)) definition of which excludes any
transaction ‘‘pertaining to the sale or rental of real property’’; moreover,
although a narrow construction of that language that applied only to
contracts for the sale or rental of real property was inconsistent with
the dictionary definitions of the phrase ‘‘pertaining to,’’ this court none-
theless concluded that it would yield absurd results to construe the real
property exception as applying to all transactions for goods and services
that relate to, or are an adjunct or accessory to, the sale or rental of
real property; accordingly, this court turned to extratextual sources,
including legislative history, the federal regulations on which the real
property exception was based, and sister state precedent, and, consistent
with the liberal construction afforded to remedial statutes such as the
HSSA, concluded that a ‘‘home solicitation sale’’ is not strictly limited
to the sale or rental of real property but, instead, includes a limited
category of consumer goods and services that may be excluded under
the real property exception; in the present case, the sale of the residence
was the stated purpose of the agreement, the duration of the agreement
was defined by how long it took for the property to sell, and the sale
of the property delimited the agreement’s various terms by, for example,
allowing M Co. to remove the furniture and décor if the defendants’
residence was not listed for sale within a prescribed period of time,
such that the terms of the agreement were so intertwined with the sale
of the defendants’ property that the agreement was inextricably related
to, or an integral adjunct or accessory to, the sale of the home.
3. There was no merit to the defendants’ claim that the award of damages
was improper insofar as the trial court awarded M Co. double damages
by rendering judgment against both G and J for the same loss and
included the conversion value of the furniture and décor in the amount
of damages for which J was liable in connection with the breach of
contract claim; although a party may recover just damages for the same
loss only once, it was undisputed that M Co.’s loss was wholly unsatisfied
when the trial court rendered judgment in its favor on the claim against
G concerning the enforceability of the California judgment and on the
breach of contract claim against J, and the trial court was not foreclosed
from rendering judgment in favor of M Co. against both defendants,
jointly or separately, for injuries for which each is liable; moreover, the
trial court’s award of damages for the conversion value of the furniture
and décor was not clearly erroneous in light of the fact that J caused
M Co.’s total loss of that inventory by keeping and using it in her personal
residence for three years, as M Co.’s loss of the furniture and décor
was a reasonably foreseeable consequence of J’s breach of the home
staging services agreement.
(Two justices concurring in part and dissenting in part in one opinion)
Argued September 8, 2020—officially released September 22, 2021*
Procedural History
Action to enforce a foreign default judgment rendered
against the defendants in California, and for other relief,
brought to the Superior Court in the judicial district of
Fairfield and tried to the court, Tyma, J.; judgment for
the plaintiff, from which the defendants appealed to
the Appellate Court, Gruendel, Alvord and Pellegrino,
Js., which affirmed the trial court’s judgment, and the
defendants, on the granting of certification, appealed to
this court, which reversed the judgment of the Appellate
Court and remanded the case to that court with direc-
tion to dismiss the defendants’ appeal; thereafter, the
plaintiff withdrew the remaining counts of the com-
plaint, and the defendants appealed. Affirmed.
Michael S. Taylor, with whom was Brendon P. Leves-
que, for the appellants (defendants).
Anthony J. LaBella, with whom, on the brief, was
Deborah M. Garskof, for the appellee (plaintiff).
Opinion
ECKER, J. This appeal arises out of a dispute between
the plaintiff, Meribear Productions, Inc., doing business
as Meridith Baer and Associates, and the defendants,
Joan E. Frank and George A. Frank, in connection with
a contract for the design, decoration, and staging for
sale of the defendants’ residence at 3 Cooper Lane in
Westport. After the plaintiff staged the defendants’
home by installing rental furniture, antiques, art, and
home décor for the purpose of enhancing its appearance
and, thereby, its prospects for sale, the defendants
defaulted on their contractual payment obligations to
the plaintiff. The plaintiff, a California company,
obtained a default judgment against the defendants in
its home state and thereafter filed an action in the
Superior Court in Connecticut seeking to enforce the
California judgment or, alternatively, to recover under
the theories of breach of contract or quantum meruit.
The trial court rendered judgment in favor of the plain-
tiff against George Frank on the count seeking to
enforce the California judgment and in favor of the
plaintiff against Joan Frank on the breach of contract
count.1 On appeal, the defendants claim that (1) the
California judgment is unenforceable for lack of per-
sonal jurisdiction, (2) the contract is unenforceable
under the Home Solicitation Sales Act (HSSA), General
Statutes § 42-134a et seq., and (3) the amount of dam-
ages awarded by the trial court was improper. We affirm
the judgment of the trial court.
The relevant facts either are undisputed or were
found by the trial court following a bench trial. The
plaintiff is a California corporation that provides resi-
dential design and decoration services, including the
delivery, staging and leasing of home furnishings and
décor. The defendants are a married couple who resided
in a home owned by Joan Frank at 3 Cooper Lane in
Westport. In an effort to sell their home and make it
more attractive to potential purchasers, Joan Frank, as
the homeowner, entered into a ‘‘[s]taging [s]ervices and
[]l]ease [a]greement’’ (agreement) with the plaintiff on
March 13, 2011. Under the terms of the agreement, Joan
Frank agreed to pay the plaintiff a ‘‘ ‘[s]taging [f]ee’ ’’
in the amount of $19,000, which represented a nonre-
fundable ‘‘ ‘[i]nitial [p]ayment’ ’’ due ‘‘prior to [the] deliv-
ery and installation’’ of the furnishings. After the deliv-
ery and installation of the furnishings, the agreement
provided that Joan Frank would make monthly rental
payments in the amount of $1900 beginning on July 23,
2011. The initial term of the agreement was for four
months ‘‘or until the buyer’s contingencies are either
satisfied or waived with respect to the purchase of the
[p]roperty, whichever comes first.’’ If the property did
not sell after four months, then the agreement would
continue on a monthly basis, subject to the right of
either party to terminate the agreement by providing
written notice.
Joan Frank was the sole signatory to the agreement.
Although George Frank did not sign the agreement and
was not a party to it, he participated in its negotiation.
Indeed, in negotiating the agreement, the plaintiff dealt
exclusively with George Frank, his office assistant, and
the defendants’ realtor. The plaintiff had no meaningful
dealings with Joan Frank other than her execution of
the agreement.
In addition to negotiating the agreement, George
Frank signed an addendum to the agreement, adden-
dum B, which is a credit card authorization expressly
made ‘‘a part of [the] [a]greement . . . .’’ Pursuant to
the credit card authorization, George Frank ‘‘authorized
the plaintiff to charge his Visa credit card a ‘total
amount’ of $19,000.’’ George Frank crossed out lan-
guage in the addendum providing that he agreed to
personally guarantee ‘‘any obligations that may become
due.’’2
Although George Frank was not a party to the agree-
ment, he made substantive modifications to its terms.
Paragraph 19 of the agreement contains a choice of law
provision, which provides that ‘‘[t]his [a]greement and
the rights of the parties hereunder shall be determined,
governed by and construed in accordance with the inter-
nal laws of the [s]tate of California without regard to
conflicts of laws principles.’’ Paragraph 19 also contains
a forum selection clause, which provides that ‘‘[a]ny
dispute under that [a]greement shall only be litigated
in any court having its situs within the [c]ity of Los
Angeles, California, and the parties consent and submit
to the jurisdiction of any court located within such
venue.’’ Despite the choice of law provision, George
Frank unilaterally added the following language at the
end of paragraph 19: ‘‘Since this is a contract for an
agreement taking place in the state of Connecticut, Con-
necticut laws will [supersede] those of California.’’
(Emphasis omitted.)
After George Frank made the initial payment of
$19,000, the plaintiff delivered and installed the rental
furnishings and décor pursuant to the terms of the
agreement. Thereafter, the defendants defaulted on
their rental obligation. The plaintiff hired a crew of
movers to remove the rental furnishings and décor from
the defendants’ residence, but the defendants denied
the movers access to the premises. The defendants
demanded that the plaintiff provide a written release
of all claims, but the plaintiff refused. The inventory
remained in the home.3
The litigation began in California. On February 15,
2012, the plaintiff filed suit against the defendants in
the Superior Court of California, county of Los Angeles,
claiming, inter alia, breach of contract and conversion.
That action resulted in a default judgment against the
defendants in the amount of $259,746.10. When the
default judgment remained unsatisfied, the plaintiff
brought an action against the defendants in the Superior
Court for the judicial district of Fairfield, seeking to
enforce the foreign judgment. Alternatively, the plaintiff
sought recovery against the defendants for breach of
contract and quantum meruit under counts two and
three of the complaint, respectively. The defendants
raised various special defenses. In particular, the defen-
dants claimed that (1) the California judgment was
unenforceable for lack of personal jurisdiction, (2) the
agreement was unenforceable under the HSSA because
the plaintiff failed to advise the defendants of their
cancellation rights, and (3) the plaintiff failed to miti-
gate its damages and breached the covenant of good
faith and fair dealing.
On count one of the plaintiff’s complaint, seeking
enforcement of the California judgment, the trial court
found that the California court lacked personal jurisdic-
tion over Joan Frank due to insufficient service of pro-
cess but that ‘‘the substituted service of process on
George Frank [was] valid.’’4 ‘‘To the extent that George
Frank claim[ed] that the California court lacked suffi-
cient minimum contacts over him’’ to satisfy the due
process clause of the federal constitution, the trial court
‘‘disagree[d].’’ The trial court reasoned that ‘‘George
Frank admit[ted] that he signed a guarantee of the stag-
ing agreement with a company that has a principal
place of business in California and that [the agreement]
provides that [the city of] Los Angeles is the appropriate
forum. He disputes only the extent of the guarantee.
The California court possessed personal jurisdiction
over George Frank, and its judgment is entitled to full
faith and credit as to him.’’ Therefore, the trial court
rendered judgment ‘‘in favor of the plaintiff and against
George Frank on the first count of the complaint for
common-law enforcement of a foreign judgment.’’
The trial court proceeded to address counts two and
three of the plaintiff’s complaint against Joan Frank for
breach of contract and quantum meruit, respectively.
In connection with count two, the trial court found that
‘‘the plaintiff’s evidence relevant to the claimed breach
[was] credible,’’ that ‘‘[t]he furnishings were delivered
to, and installed in, the residence in March, 2011,’’ and
that ‘‘Joan Frank failed to make the July rent payment,
and the rent payments and other charges due there-
after.’’ Moreover, the trial court found that, following
Joan Frank’s default on the rental payments, the plain-
tiff attempted to remove the inventory from the defen-
dants’ residence, but the defendants wrongfully ‘‘denied
the movers access to their home unless the plaintiff
provided them with a full release of all claims,’’ which
the plaintiff ‘‘reasonably refused . . . .’’ The trial court
therefore concluded that Joan Frank had breached the
agreement.
The trial court rejected Joan Frank’s claim that the
agreement was unenforceable under the HSSA because
the plaintiff had not provided her with notice of her
cancellation rights, concluding that the ‘‘plain and
unambiguous’’ language of the statute exempts from the
definition of a ‘‘ ‘home solicitation sale’ ’’ transactions
‘‘ ‘pertaining to the sale or rental of real property.’ ’’
Accord General Statutes § 42-134a (a) (5) (‘‘[t]he term
‘home solicitation sale’ does not include a transaction
. . . pertaining to the sale or rental of real property’’).
The trial court determined that ‘‘[a]n agreement con-
cerning the staging of a residential home for sale in the
real estate marketplace’’ pertains to the sale of real
property and, therefore, is excluded from the purview
of the HSSA. The trial court also rejected Joan Frank’s
claim that the plaintiff had failed to mitigate its dam-
ages, finding that it was Joan Frank who had ‘‘wrong-
fully prevented’’ the removal of the home furnishings
and décor. Furthermore, because ‘‘Joan Frank . . .
wrongfully withheld payments under the agreement,
and wrongfully refused the plaintiff’s attempts to
reclaim the inventory,’’ the trial court found that she
had breached the covenant of good faith and fair dealing
by ‘‘injur[ing] the rights of the plaintiff to receive the
benefits of the staging agreement.’’ The trial court there-
fore rendered judgment in favor of the plaintiff and
against Joan Frank on the plaintiff’s breach of contract
claim. Having determined that ‘‘[t]he plaintiff [proved]
that Joan Frank breached the contract,’’ the trial court
stated that it ‘‘need not consider the alternative claim
for quantum meruit.’’
Finally, the trial court addressed the issue of dam-
ages. On the first count of the complaint, enforcement
of the California judgment against George Frank, the
trial court awarded the plaintiff the full amount of the
California judgment: $259,746.10. On the second count
of the complaint, breach of contract against Joan Frank,
the trial court awarded the plaintiff damages for the
loss of the home furnishings and décor in the amount
of $235,598 and an additional $47,508.45 for ‘‘the rental
loss and related late fees,’’ for a total of $283,106.45.
The defendants jointly appealed from the trial court’s
judgment to the Appellate Court, claiming that (1) the
California judgment was unenforceable against George
Frank for lack of personal jurisdiction, (2) the agree-
ment was unenforceable because it did not provide the
defendants with notice of their cancellation rights under
the HSSA, and (3) the damages award was improper
because (a) the trial court awarded double damages
against George Frank and Joan Frank for the same loss,
and (b) the trial court incorrectly included damages for
conversion of the home furnishings in the breach of
contract award against Joan Frank. See Meribear Pro-
ductions, Inc. v. Frank, 165 Conn. App. 305, 311, 316,
321–22, 140 A.3d 993 (2016), rev’d, 328 Conn. 709, 183
A.3d 1164 (2018). The Appellate Court affirmed the trial
court’s judgment, holding that (1) the California judg-
ment was enforceable as to George Frank because he
consented to personal jurisdiction in California by sign-
ing addendum B, which was incorporated into the
agreement; see id., 315; (2) the agreement was not sub-
ject to the provisions of the HSSA because it fell within
the statutory exemption for transactions pertaining to
the sale or rental of real property under § 42-134a (a)
(5); see id., 316, 321; and (3) the measure of damages
was proper because (a) the plaintiff may recover the
full amount of damages under either count one or count
two of the complaint but may not recover twice for the
same loss; see id., 322; and (b) the amount of damages
on the breach of contract claim was not clearly errone-
ous in light of the trial court’s factual findings ‘‘that Joan
Frank had breached the staging services agreement by
failing to pay the rent due, by wrongfully using the
furniture in the defendants’ personal residence for
approximately three years, and by thwarting the plain-
tiff’s efforts to retrieve its inventory, thereby resulting in
the total loss of that inventory to the plaintiff.’’ Id., 323.
This court granted the defendants’ joint petition for
certification to appeal.5 See Meribear Productions, Inc.
v. Frank, 322 Conn. 903, 138 A.3d 288 (2016). During the
adjudication of that appeal, a question arose ‘‘whether
George Frank’s appeal had been taken from a final
judgment when the trial court’s ruling had not disposed
of all counts against him,’’ namely, the plaintiff’s alterna-
tive theories of recovery in counts two and three of
the complaint, breach of contract and quantum meruit.
Meribear Productions, Inc. v. Frank, 328 Conn. 709,
715, 183 A.3d 1164 (2018). Following oral argument and
supplemental briefing from the parties, we determined
that the trial court’s judgment was not final given that
counts two and three ‘‘remain[ed] unadjudicated’’ as to
George Frank and ‘‘present[ed] the possibility that [he]
could be found liable for additional damages.’’ Id., 726.
Accordingly, we reversed the judgment of the Appellate
Court and remanded to that court with direction to
dismiss the defendants’ joint appeal. See id.On remand to the trial court, the plaintiff withdrew
counts two and three as to George Frank.6 The defen-
dants thereafter filed a joint appeal with the Appellate
Court, which we transferred to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-2.
I
The defendants first claim that the foreign judgment
against George Frank is unenforceable for lack of per-
sonal jurisdiction because George Frank’s sole contact
with California was ‘‘sign[ing] a single credit authoriza-
tion in Connecticut, and every relevant action the plain-
tiff took with regard to George Frank was taken in
Connecticut. ‘‘The defendants contend that, under these
circumstances, George Frank lacked sufficient mini-
mum contacts with California and that the assertion of
personal jurisdiction over him in that state offended
traditional notions of fair play and substantial justice
in violation of the due process clause of the United
States constitution. See, e.g., Burger King Corp. v. Rud-
zewicz, 471 U.S. 462, 478, 105 S. Ct. 2174, 85 L. Ed. 2d
528 (1985) (‘‘an individual’s contract with an out-of-state
party alone [cannot] automatically establish sufficient
minimum contacts in the other party’s home forum’’
(emphasis in original)). The defendants further argue
that George Frank did not consent to jurisdiction in
California because he was not a party to the agreement,
and, therefore, the forum selection clause in the agree-
ment ‘‘cannot form a proper basis for jurisdiction.’’
The full faith and credit clause of the United States
constitution governs an action to enforce a foreign judg-
ment.7 ‘‘[T]he full faith and credit clause requires a state
court to accord to the judgment of another state the
same credit, validity and effect as the state that rendered
the judgment would give it. . . . This rule includes the
proposition that lack of jurisdiction renders a foreign
judgment void. . . . A party can therefore defend
against the enforcement of a foreign judgment on the
ground that the court that rendered the judgment lacked
personal jurisdiction, unless the jurisdictional issue was
fully litigated before the rendering court or the
defending party waived the right to litigate the issue.’’
(Citations omitted.) Packer Plastics, Inc. v. Laundon,
214 Conn. 52, 56, 570 A.2d 687 (1990). The party raising
a jurisdictional claim as a defense against the enforce-
ment of a foreign judgment bears the burden of proving,
‘‘by a preponderance of the evidence, facts that demon-
strate that the foreign court lacked jurisdiction.’’ Maltas
v. Maltas, 298 Conn. 354, 364 n.11, 2 A.3d 902 (2010).
On appeal, we defer to the trial court’s factual find-
ings but exercise plenary review over the ultimate ques-
tion of personal jurisdiction. See Ryan v. Cerullo, 282
Conn. 109, 118, 918 A.2d 867 (2007). ‘‘The question of
whether another state’s court properly exercised per-
sonal jurisdiction is determined with reference to the
law of that state.’’ Maltas v. Maltas, supra, 298 Conn.
367; see, e.g., Smith v. Smith, 174 Conn. 434, 438–39,
389 A.2d 756 (1978); J. Corda Construction, Inc. v.
Zaleski Corp., 98 Conn. App. 518, 524, 911 A.2d 309(2006).8
In California, ‘‘a civil court gains jurisdiction over a
person through one of four methods. There is the old-
fashioned method—residence or presence within the
state’s territorial boundaries. . . . There is minimum
contacts—activities conducted or effects generated
within the state’s boundaries sufficient to establish a
‘presence’ in the state so that exercising jurisdiction is
consistent with ‘ ‘‘traditional notions of fair play and
substantial justice.’ ’’ . . . A court also acquires juris-
diction when a person participates in a lawsuit in the
courthouse where it sits, either as the plaintiff initiating
the suit . . . or as the defendant making a general
appearance . . . . Finally, a party can consent to per-
sonal jurisdiction, when it would not otherwise be avail-
able.’’ (Citations omitted; footnote omitted.) Global
Packaging, Inc. v. Superior Court, 196 Cal. App. 4th
1623, 1629, 127 Cal. Rptr. 3d 813 (2011).
We need not address the defendants’ minimum con-
tacts argument because we conclude that George Frank
consented to personal jurisdiction in California.9 ‘‘[D]ue
process permits the exercise of personal jurisdiction
over a nonresident defendant . . . when the defendant
consents to jurisdiction. . . . A party, even one who
has no minimum contacts with [a] state, may consent
to jurisdiction in a particular case. . . . Agreeing to
resolve a particular dispute in a specific jurisdiction,
for example, is one means of expressing consent to
[the] personal jurisdiction of courts in the forum state
for purposes of that dispute. . . . [Although] subject
matter jurisdiction cannot be conferred by consent, per-
sonal jurisdiction can be so conferred, and consent may
be given by a contract provision.’’ (Citation omitted;
internal quotation marks omitted.) Rockefeller Technol-
ogy Investments (Asia) VII v. Changzhou SinoType
Techonology Co., Ltd., 9 Cal. 5th 125, 140, 460 P.3d 764,
260 Cal. Rptr. 3d 442, cert. denied, U.S. , 141 S.
Ct. 374, 208 L. Ed. 2d 98 (2020); see also Burger King
Corp. v. Rudzewicz, supra, 471 U.S. 472 n.14 (‘‘[B]ecause
the personal jurisdiction requirement is a waivable
right, there are a variety of legal arrangements by which
a litigant may give express or implied consent to the
personal jurisdiction of the court. . . . For example,
particularly in the commercial context, parties fre-
quently stipulate in advance to submit their controver-
sies for resolution within a particular jurisdiction. . . .
[When] such [forum selection] provisions have been
obtained through freely negotiated agreements and are
not unreasonable and unjust . . . their enforcement
does not offend due process.’’ (Citations omitted; inter-
nal quotation marks omitted.)).
In the present case, the agreement expressly provided
in relevant part that ‘‘[a]ny dispute under [the] agree-
ment shall only be litigated in any court having its situs
within the [c]ity of Los Angeles, California, and the
parties consent and submit to the jurisdiction of any
court located within such venue.’’ (Emphasis added.)
The defendants do not dispute that the forum selection
clause in the agreement is valid and enforceable10 and,
therefore, that its ‘‘enforcement does not offend due
process.’’ Burger King Corp. v. Rudzewicz, supra, 471
U.S. 472 n.14. Instead, they contend that George Frank
is not bound by the forum selection clause because he
did not sign the agreement. We disagree.
Generally, a nonsignatory to a contract is not bound
by a forum selection clause contained therein. See, e.g.,
Berclain America Latina S.A., de C.V. v. Baan Co.
N.V., 74 Cal. App. 4th 401, 404–405, 409, 87 Cal. Rptr.
2d 745 (1999) (holding that nonsignatory to contract
lacked standing to enforce forum selection clause). An
exception to this general rule exists, however, for non-
signatories who are ‘‘so closely involved in the agree-
ment or associated with a party to the transaction as
to be functionally equivalent to that party.’’ Id., 403; see
Net2Phone, Inc. v. Superior Court, 109 Cal. App. 4th
583, 589, 135 Cal. Rptr. 2d 149 (holding that forum
selection clause was enforceable against nonsignatory
on ground that it was ‘‘ ‘closely related’ to the contrac-
tual relationship because it stands in the shoes of those
whom it purports to represent’’), review denied, Docket
No. S117411 (Cal. August 27, 2003); Bancomer, S. A. v.
Superior Court, 44 Cal. App. 4th 1450, 1461, 52 Cal.
Rptr. 435 (1996) (to demonstrate that nonsignatory is
‘‘ ‘so closely related to the contractual relationship’ that
it is entitled to enforce the forum selection clause, it
must show by specific conduct or express agreement
that (1) it agreed to be bound by the terms of the
. . . agreement, (2) the contracting parties intended
the [nonsignatory] to benefit from the . . . agreement,
or (3) there was sufficient evidence of a defined and
intertwining business relationship with a contracting
party’’); Lu v. Dryclean-U.S.A. of California, Inc., 11
Cal. App. 4th 1490, 1494, 14 Cal. Rptr. 2d 906 (1992)
(holding that nonsignatories were bound by forum
selection clause because they were ‘‘closely related to
the contractual relationship’’ in that they allegedly ‘‘par-
ticipated in the fraudulent representations [that]
induced [the] plaintiffs to enter into the [a]greement’’).
Under the ‘‘closely related’’ doctrine, a nonsignatory
to a contract may be bound by a forum selection clause
if the nonsignatory was so intimately involved in the
negotiation, formation, execution, or ratification of the
contract that it was reasonably foreseeable that he or
she would be bound by the forum selection clause. See,
e.g., Carlyle Investment Management, LLC v. Moon-
mouth Co. SA, 779 F.3d 214, 219 (3d Cir. 2015) (‘‘even
if [the] defendants are not parties to the agreement or
third-party beneficiaries of it, they may be bound by
the forum selection clause if they are closely related to
the agreement in such a way that it would be foreseeable
that they would be bound’’); Lipcon v. Underwriters
at Lloyd’s, London, 148 F.3d 1285, 1299 (11th Cir. 1998)
(nonsignatories who signed letters of credit to provide
collateral for signatories were bound by forum selection
clause because their ‘‘interests . . . in [the] dispute are
completely derivative of those of [the signatories]—and
thus ‘directly related to, if not predicated upon’ the
interests of the [signatories]’’), cert. denied, 525 U.S.
1093, 119 S. Ct. 851, 142 L. Ed. 2d 704 (1999); Hugel v.
Corp. of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993) (‘‘[i]n
order to bind a [nonparty] to a forum selection clause,
the party must be ‘closely related’ to the dispute such
that it becomes ‘foreseeable’ that it will be bound’’);
Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d
509, 514 n.5 (9th Cir. 1988) (nonsignatories were bound
by forum selection clause because they were ‘‘so closely
related to the contractual relationship’’). In determining
whether a nonsignatory may be bound by a forum selec-
tion clause, ‘‘courts consider the [nonsignatory’s] . . .
relationship [to the signatory] and whether the [nonsig-
natory] received a direct benefit from the agreement.’’11
Carlyle Investment Management, LLC v. Moonmouth
Co. SA, supra, 219.
Applying these factors, we conclude that George
Frank was so closely related to the agreement that
he is bound by the forum selection clause explicitly
providing that the ‘‘the parties consent and submit to
the jurisdiction of any court located within’’ the city of
Los Angeles, California. First, the record reflects that
George Frank participated in the negotiation of the
agreement prior to its execution. Indeed, even though
Joan Frank was ‘‘the sole signatory [to] the agreement,’’
she had no ‘‘meaningful dealings concerning the matter’’
and ‘‘was not involved in the process other than signing
the agreement.’’ Instead, George Frank negotiated the
agreement, ‘‘took charge of the project and dealt with
the plaintiff.’’ George Frank was a party to the agree-
ment in all but name.
Second, George Frank made substantive changes to
the agreement prior to its execution. Specifically, ‘‘George
Frank unilaterally added the following language to the
end of paragraph 19,’’ which is the portion of the agree-
ment that contains the forum selection clause and the
choice of law provision: ‘‘Since this is a contract for
an agreement taking place in the state of Connecticut,
Connecticut laws will [supersede] those of California.’’
Notably, George Frank made no amendments to the
forum selection clause.
Third, in addition to negotiating and amending the
agreement, George Frank executed addendum B, which
is a credit card authorization that expressly was made
‘‘a part of [the] [a]greement . . . .’’ Pursuant to adden-
dum B, George Frank authorized a onetime credit card
payment in the amount of $19,000, which represented
the ‘‘[i]nitial [p]ayment’’ or ‘‘[s]taging [f]ee’’ due under
the agreement. By doing so, George Frank authorized
the sole payment made to the plaintiff and prompted the
plaintiff’s full performance of its contractual obligations
under the terms of the agreement.
Lastly, we consider George Frank’s relationship with
the parties and whether he benefited from the agree-
ment. As we previously explained, George Frank is mar-
ried to Joan Frank and resided with her at 3 Cooper
Lane—where the home furnishings and décor were
installed and remained for years. See footnote 3 of this
opinion. Given that George Frank plainly enjoyed the
use and benefit of the home furnishings and décor and
shared his wife’s desire to enter into the agreement for
the purpose of selling their marital residence, we have
no trouble concluding that he received a direct benefit
under the agreement.
For the foregoing reasons, we conclude that George
Frank consented to personal jurisdiction in California.
Accordingly, the trial court properly found that the Cali-
fornia judgment is enforceable against George Frank
under the full faith and credit clause.
The concurring and dissenting opinion objects to our
reliance on the closely related doctrine to affirm the trial
court’s enforcement of the foreign judgment against
George Frank, arguing that ‘‘the plaintiff did not advance
[this theory], either in the trial court or before this
court,’’ and that the plaintiff did not raise it as an alterna-
tive ground for affirmance under Practice Book § 63-4
(a). It is true that the plaintiff did not frame its jurisdic-
tional argument using the line of cases discussed in this
opinion. In all but name, however, the gravamen of the
plaintiff’s argument throughout this litigation has been
that George Frank was so closely related to the transac-
tion that he should be bound by the forum selection
clause in the agreement signed by his wife, Joan Frank.
The record reveals that the plaintiff consistently has
maintained that George Frank consented to personal
jurisdiction in California via the forum selection clause,
even though he was not a signatory to the agreement.12
In support of this argument, the plaintiff always has
emphasized George Frank’s close involvement in the
negotiation and execution of the agreement, pointing
out that he signed addendum B and ‘‘made specific,
handwritten changes to the [agreement] in certain
places, including to the forum selection clause, which
. . . expressly included the selection of California for
litigation arising under the [agreement], yet did not
alter or delete his consent to California jurisdiction.’’13
(Emphasis omitted.)
The plaintiff’s failure to cite the applicable, governing
case law is not fatal to its claim because it is well
established that ‘‘[w]e may . . . review legal argu-
ments that differ from those raised’’ by the parties ‘‘if
they are subsumed within or intertwined with argu-
ments related to the legal claim before the court.’’14
(Internal quotation marks omitted.) Jobe v. Commis-
sioner of Correction, 334 Conn. 636, 644 n.2, 224 A.3d
147 (2020); see State v. Santiago, 318 Conn. 1, 124, 122
A.3d 1 (2015) (‘‘[W]e generally do not consider claims
or issues that the parties themselves have not raised
. . . [but] in cases too numerous to mention, we have
considered arguments or factors pertaining to those
claims or issues that were not expressly identified by
the parties.’’ (Citation omitted; emphasis in original.)).
This is because, ‘‘when [a case] is properly before the
court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the
independent power to identify and apply the proper
construction of governing law . . . .’’ (Internal quota-
tion marks omitted.) Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.
123, 148, 84 A.3d 840 (2014); see In re David B., 167
Conn. App. 428, 448 n.10, 142 A.3d 1277 (2016) (‘‘[i]n
resolving a claim raised by the parties, we are not
required to constrain our analysis to the law relied on
by the parties’’). Our independent power to identify and
apply the proper construction of the governing law is
particularly important in a case such as the present
one, given our constitutional obligation to afford full
faith and credit to the California judgment. See, e.g.,
State v. Santiago, supra, 124 (emphasizing importance
of our power to identify and apply proper construction
of governing law ‘‘when plenary consideration is neces-
sary to thoroughly address and accurately decide con-
stitutional claims and other matters of substantial pub-
lic importance’’). In light of the clear applicability of
the closely related doctrine to the facts marshaled by
the parties and found by the trial court,15 we affirm the
trial court’s judgment enforcing the California judgment
against George Frank.
II
The defendants next claim that the agreement is
unenforceable under the HSSA because it did not
include a notice of their cancellation rights in accor-
dance with General Statutes § 42-135a (2).16 The plaintiff
responds that it was not required to provide a notice
of cancellation rights because the agreement falls out-
side the purview of the HSSA. Specifically, the plaintiff
contends that the transaction at issue was not a ‘‘home
solicitation sale,’’ as defined by the HSSA, because it
‘‘pertain[ed] to the sale or rental of real property’’ under
§ 42-134a (a) (5).17
The scope and meaning of the phrase ‘‘home solicita-
tion sale’’ in the HSSA presents a question of statutory
construction, over which we exercise plenary review.
See, e.g., Cambodian Buddhist Society of Connecticut,
Inc. v. Planning & Zoning Commission, 285 Conn. 381,
422, 941 A.2d 868 (2008). ‘‘When construing a statute,
[o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature.’’ (Internal
quotation marks omitted.) Ugrin v. Cheshire, 307 Conn.
364, 379, 54 A.3d 532 (2012). General Statutes § 1-2z
guides this analysis and ‘‘directs us first to consider the
text of the statute itself and its relationship to other
statutes.’’ (Internal quotation marks omitted.) Id.
Section 42-135a provides in relevant part that ‘‘[n]o
agreement in a home solicitation sale shall be effective
against the buyer’’ if the seller ‘‘[f]ail[s] to furnish each
buyer, at the time such buyer signs the home solicitation
sales contract or otherwise agrees to buy consumer
goods or services from the seller, a completed form
in duplicate, captioned ‘NOTICE OF CANCELLATION’,
which shall be attached to the contract or receipt and
easily detachable, and which shall contain in ten-point
boldface type’’ certain specified information regarding
the buyer’s right to cancel the transaction. General Stat-
utes § 42-135a (2). A ‘‘home solicitation sale’’ is defined
in relevant part as ‘‘a sale, lease, or rental of consumer
goods or services, whether under single or multiple
contracts, in which the seller or his representative per-
sonally solicits the sale, including those in response to
or following an invitation by the buyer, and the buyer’s
agreement or offer to purchase is made at a place other
than the place of business of the seller. . . .’’ General
Statutes § 42-134a (a). ‘‘The term ‘home solicitation sale’
does not include’’ various types of transactions, only
one of which is pertinent to the present appeal, namely,
transactions ‘‘pertaining to the sale or rental of real
property, to the sale of insurance, to the sale of newspa-
pers or to the sale of securities or commodities by a
broker-dealer registered with the securities and exchange
commission . . . .’’ (Emphasis added.) General Stat-
utes § 42-134a (a) (5).
The parties dispute whether their contractual agree-
ment for the design, staging, and leasing of home goods
and services ‘‘pertain[ed] to the sale or rental of real
property’’ under § 42-134a (a) (5). The defendants con-
tend that this exception to the definition of a ‘‘home
solicitation sale’’ should be construed narrowly to apply
only to contracts for the sale or rental of real property,
rather than to goods or services used to facilitate the
sale or rental of real property. The plaintiff responds
that the defendants’ proposed construction of the stat-
ute ignores the expansive prefatory phrase ‘‘pertaining
to,’’ which, the plaintiff points out, Black’s Law Diction-
ary defines as ‘‘ ‘[t]o relate to; to concern.’ ’’ See Black’s
Law Dictionary (9th Ed. 2009) p. 1260 (defining ‘‘per-
tain’’). The plaintiff argues that the agreement plainly
‘‘pertain[ed] to the sale . . . of real property’’ within
the meaning of § 42-134a (a) (5) because the contractual
language ‘‘clearly and repeatedly states that the sole,
whole and entire purpose of the contract was to facili-
tate the sale of the property.’’
We begin our analysis with the dictionary definition
of the phrase ‘‘pertaining to.’’ See, e.g., Maturo v. State
Employees Retirement Commission, 326 Conn. 160,
176, 162 A.3d 706 (2017) (‘‘[w]hen a term is not defined
in a statute, we begin with the assumption that the
legislature intended the word to carry its ordinary mean-
ing, as evidenced in dictionaries in print at the time the
statute was enacted’’). The word ‘‘pertain’’ means ‘‘[t]o
have reference; relate’’ or ‘‘[t]o belong as an adjunct or
accessory . . . .’’ American Heritage Dictionary of the
English Language (New College Ed. 1979) p. 979; see
also Webster’s Third New International Dictionary
(1976) p. 1688 (defining ‘‘pertain’’ as ‘‘to belong to some-
thing as a part or member or accessory or product’’).
Thus, a transaction is one ‘‘pertaining to’’ the sale or
rental of real property if the transaction refers or relates
to the sale or rental, or if the transaction is an adjunct
or accessory to the sale or rental. Under the former
definition, any transaction for goods or services that is
associated with or connected to the sale or rental of
real property is exempted from the HSSA, whereas,
under the latter definition, any transaction for goods
or services that facilitates or aids the convenience or
effectiveness of the sale or rental would be exempt. See
American Heritage Dictionary of the English Language,
supra, p. 1097 (defining ‘‘relate’’ as ‘‘[t]o bring into logi-
cal or natural association’’ and ‘‘[t]o have connection,
relation, or reference’’); Webster’s Third New Interna-
tional Dictionary, supra, p. 11 (defining ‘‘accessory’’ as
‘‘an object or device that is not essential in itself but
that adds to the beauty, convenience, or effectiveness
of something else’’).
The defendants contend that it would yield absurd
and unworkable results to construe the real property
exception to apply to all transactions for goods and
services that relate to, or are an adjunct or accessory
to, the sale or rental of real property and urge us to
adopt a limiting principle to ensure that the exception
does not operate beyond its intended scope.18 By way
of example, the defendants point out that homeowners
who purchase new windows from a door-to-door seller
with the subjective purpose of making their home more
attractive to potential buyers or renters, and thereby
aiding or facilitating the sale or rental of the home,
would not be afforded the consumer protections of the
HSSA, whereas homeowners who purchase the same
windows from the same seller for their own benefit
(i.e., with no immediate intention of selling or renting
the home) would receive the protections of the statu-
tory scheme. The defendants argue that a limiting con-
struction is necessary because such a random result
would defeat the remedial purpose of the HSSA, con-
trary to the intent of the legislature.
The HSSA is a remedial statue that ‘‘must be afforded
a liberal construction in favor of those whom the legisla-
ture intended to benefit.’’ Rizzo Pool Co. v. Del Grosso,
232 Conn. 666, 678, 657 A.2d 1087 (1995). As a corollary,
we have recognized that exceptions to such statues
‘‘should be construed narrowly.’’ Fairchild Heights,
Inc. v. Dickal, 305 Conn. 488, 502, 45 A.3d 627 (2012).
In construing the scope of the real property exception
to the HSSA, we are mindful that we must intrepret the
‘‘statute in a manner that will not thwart its intended
purpose or lead to absurd results. . . . We must avoid
a construction that fails to attain a rational and sensible
result that bears directly on the purpose the legislature
sought to achieve.’’ (Internal quotation marks omitted.)
Tayco Corp. v. Planning & Zoning Commission, 294
Conn. 673, 686, 986 A.2d 290 (2010). We agree with the
defendants that it would defeat the remedial purpose
of the HSSA if the consumer protections it provided
were dependent on the subjective purpose for which a
homeowner purchases consumer goods and services.
See Desrosiers v. Diageo North America, Inc., 314
Conn. 773, 785, 105 A.3d 103 (2014) (examining legisla-
tive history, even though language of statute was ‘‘plain
and unambiguous,’’ because ‘‘a literal application of
the statutory language would lead to a bizarre result’’);
Goldstar Medical Services, Inc. v. Dept. of Social Ser-
vices, 288 Conn. 790, 803, 955 A.2d 15 (2008) (‘‘[i]n
construing a statute, common sense must be used and
courts must assume that a reasonable and rational
result was intended’’ (internal quotation marks omit-
ted)). We therefore turn to extratextual sources of legis-
lative intent to aid our interpretation. See Tuxis Ohr’s
Fuel, Inc. v. Administrator, Unemployment Compen-
sation Act, 309 Conn. 412, 422, 72 A.3d 13 (2013)
(‘‘[w]hen a statute is not plain and unambiguous, we
also look for interpretive guidance to the legislative
history and circumstances surrounding its enactment,
to the legislative policy it was designed to implement,
and to its relationship to existing legislation and [com-
mon-law] principles governing the same general subject
matter’’ (internal quotation marks omitted)).
The real property exception to the definition of a
‘‘home solicitation sale’’ was added to the HSSA in 1976
‘‘[i]n order to conform to’’ the regulations promulgated
by the Federal Trade Commission (FTC). 19 S. Proc.,
Pt. 3, 1976 Sess., p. 1241, remarks of Senator Louis
Ciccarello; see Public Acts 1976, No. 76-165, § 1; see
also Federal Trade Commission, Cooling Off Period for
Door-to-Door Sales, 35 Fed. Reg. 15,164 (September 29,
1970). The FTC rule, which was codified in 1974 at 16
C.F.R. § 429.0 et seq., was enacted to protect consumers
from the deceptive sales practices and high-pressure
tactics used by some door-to-door sellers of consumer
goods and services. See Federal Trade Commission,
Cooling-Off Period for Door-to-Door Sales, 37 Fed. Reg.
22,934, 22,937 (October 26, 1972). Under the FTC rule,
like the HSSA, door-to-door sellers are required to fur-
nish buyers, in a specified format, notice and explana-
tion of their right to cancel the transaction within three
business days. See 16 C.F.R. § 429.1 (b) (2020). The
three day ‘‘cooling-off period’’ provides ‘‘the consumer
with an opportunity to discuss his purchase with others,
to reflect upon the provisions of the contract, and per-
haps to do a little comparative shopping. This will give
him some opportunity to discover misrepresentations
made by the salesman, or to realize either that he is
paying too high a price for the product or that he simply
didn’t know when he agreed to buy what he was being
asked to pay.’’ Federal Trade Commission, supra, 37
Fed. Reg. 22,942.
Similar to the HSSA, the FTC rule defines a ‘‘door-
to-door sale’’ in relevant part as ‘‘[a] sale, lease, or rental
of consumer goods or services in which the seller or
his representative personally solicits the sale, including
those in response to or following an invitation by the
buyer, and the buyer’s agreement or offer to purchase
is made at a place other than the place of business
of the seller (e.g., sales at the buyer’s residence or at
facilities rented on a temporary or short-term basis,
such as hotel or motel rooms, convention centers, fair-
grounds and restaurants, or sales at the buyer’s work-
place or in dormitory lounges), and which has a pur-
chase price of $25 or more if the sale is made at the
buyer’s residence or a purchase price of $130 or more
if the sale is made at locations other than the buyer’s
residence, whether under single or multiple contracts.
. . .’’ 16 C.F.R. § 429.0 (a) (2020). ‘‘The term door-to-
door sale does not include a transaction . . . [p]er-
taining to the sale or rental of real property, to the
sale of insurance, or to the sale of securities or commod-
ities by a broker-dealer registered with the Securities
and Exchange Commission.’’ (Emphasis altered.) 16
C.F.R. § 429.0 (a) (6) (2020). The real property excep-
tion added to the HSSA in 1976, in other words, uses the
exact words contained in the real property exception
contained in the FTC rule promulgated in 1974.
The real property exception was adopted by the FTC
to alleviate concerns expressed by the National Associa-
tion of Real Estate Boards. See Federal Trade Commis-
sion, supra, 37 Fed. Reg. 22,948 and n.132. The FTC
explained that, ‘‘[i]nsofar as the sale of real estate itself
is concerned, neither the [FTC] nor members of the
real estate sales industry believe that such sales would
be subject to the rule as land would not fall within the
scope of the definition of consumer goods or services.
However, transactions in which a consumer engaged a
real estate broker to sell his home or to rent and manage
his residence during a temporary period of absence
may fall within the class of transactions to which the
rule would apply.’’ Id., 22,948. In light of this concern,
the FTC explicitly excluded transactions ‘‘pertaining to
the sale or rental of real property’’ from the definition of
a ‘‘door-to-door sale . . . .’’ (Internal quotation marks
omitted.) Id., 22,948–49. In doing so, the FTC ‘‘empha-
sized that it is not intended to apply to the sale of goods
or services such as siding, home improvements, and
driveway and roof repairs.’’ Id., 22,949.
It is clear that the real property exception to the FTC
rule and analogous state statutes adopted in conformity
therewith do not encompass routine transactions for
home improvement goods and services, regardless of
the purpose for which these goods and services are
purchased.19 See, e.g., Crystal v. West & Callahan, Inc.,
328 Md. 318, 333, 614 A.2d 560 (1992) (holding that
‘‘home improvement transactions are not excluded
from the Maryland Door-to-Door Sales Act’’ because
‘‘the General Assembly necessarily intended the exemp-
tion for real estate to be construed in the same manner
as the comparable federal language is construed’’). It
is less clear, however, whether the real property excep-
tion excludes from the scope of the statute the purchase
of goods and services that are inextricably related to,
or an integral adjunct or accessory to, the sale or rental
of real property, such as the engagement of a real estate
broker. Stated another way, the FTC commentary fails
to explain whether the real property exception was
intended simply to codify the understanding that real
property transactions are not goods and services under
the rule, or whether it was intended to go farther and
also exclude from the scope of the rule transactions
for some goods and services that pertain to the sale or
rental of real property.
There is a dearth of case law and scholarly commen-
tary to aid us in answering this question, but what little
authority exists indicates that the real property excep-
tion is not limited to transactions for the sale or rental
of real estate per se but, instead, encompasses a narrow
category of transactions involving goods and services
that relate to the sale or rental of real property. See,
e.g., Busch v. Model Corp., 708 N.W.2d 546, 551 (Minn.
App. 2006) (holding ‘‘that the [contract for the] con-
struction . . . of a new permanent garage . . . [fell]
within the ‘sales of real property’ exception to the home
solicitation sale statute’’ and that ‘‘[the] respondent
[therefore] was not required to comply with the home
solicitation statute’s notification requirements’’); Doyle
v. Chihoski, 443 A.2d 1243, 1244 (R.I. 1982) (real prop-
erty exception to staturory definition of ‘‘home-solicita-
tion sale’’ exempts from Home Solicitation Sales Act
‘‘any agreement calling for the payment of a commission
to a real estate broker who produces the requisite ready,
willing, and able buyer’’); McDaniel v. Pettigrew, 536
S.W.2d 611, 615 (Tex. Civ. App. 1976, writ ref’d n.r.e.)
(rejecting claim that contract for sale of unimproved
lot and new home construction ‘‘was not a realty con-
tract but an agreement for services to be performed’’
under real property exception because ‘‘the parties
intended that the house to be built [on] the lot was to
become a part of the realty’’). See generally D. Pridgen
et al., Consumer Credit and the Law (April, 2021) § 14:14
(noting that real property exceptions to state cooling
off statutes are ‘‘quite specific’’ but encompass some
goods and services). Consistent with these authorities,
we are persuaded that the real property exception to
the definition of a ‘‘home solicitation sale’’ in § 42-134a
(a) (5) is not strictly limited to the sale or rental of real
property.20
First, a ‘‘home solicitation sale’’ under the HSSA,
which is the equivalent of a ‘‘door-to-door sale’’ under
the FTC rule, is limited to the ‘‘sale, lease, or rental of
consumer goods or services . . . .’’ (Emphasis added.)
General Statutes § 42-134a (a); accord 16 C.F.R. § 429.0
(a) (2020). Thus, the real property exception, by defini-
tion, must apply to ‘‘consumer goods or services.’’ See
General Statutes § 42-134a (b) (‘‘ ‘[c]onsumer goods or
services’ means goods or services purchased, leased,
or rented primarily for personal, family, or household
purposes, including courses of instruction or training
regardless of the purpose for which they are taken’’);
see also 16 C.F.R. § 429.0 (b) (2020) (defining ‘‘con-
sumer goods or services’’ as ‘‘[g]oods or services pur-
chased, leased, or rented primarily for personal, family,
or household purposes, including courses of instruction
or training regardless of the purpose for which they are
taken’’). If the real property exception was intended
simply to codify the prevalent understanding that the
sale or rental of real property does not ‘‘fall within the
scope of the definition of consumer goods or services’’;
Federal Trade Commission, supra, 37 Fed. Reg. 22,948;
then the exemption would have been included in the
definition of ‘‘consumer goods or services,’’ rather than
the definition of a ‘‘door-to-door sale’’ under the FTC
rule or a ‘‘home solicitation sale’’ under the HSSA.
Second, as we previously explained, the plain lan-
guage of the real property exception is not limited to
transactions for the sale or rental of real property.
Instead, the exception extends to transactions ‘‘per-
taining to the sale or rental of real property . . . .’’
(Emphasis added.) General Statutes § 42-134a (a) (5);
see also 16 C.F.R. § 429.0 (a) (2020). It is axiomatic that
‘‘[e]ach word used by the legislature should be given
effect and, as far as possible, the entire enactment is
to be harmonized. . . . Words and and phrases of a
statute are to be construed according to the commonly
approved usage of the language.’’ (Citations omitted;
internal quotation marks omitted.) Ganim v. Roberts,
204 Conn. 760, 763, 529 A.2d 194 (1987). Construing the
language of the statute in conformance with the FTC
rule, as the legislature intended, and consistent with
the remedial purpose of the HSSA, we conclude that a
transaction is one ‘‘pertaining to the sale or rental of real
property’’ if it is inextricably related to, or an integral
adjunct or accessory to, the sale or rental. Accordingly,
the sale, lease, or rental of such consumers goods or
services are excluded from the definition of a ‘‘home
solicitation sale’’ under § 42-134a (a) (5).21
Having determined that a limited category of con-
sumer goods and services may be excluded from the
HSSA under the real property exception, we next con-
sider whether the agreement at issue in the present
case was inexctricably related to, or an integral adjunct
or accessory to, the sale of the defendants’ residence
at 3 Cooper Lane. We begin and end our analysis with
the language of the agreement, which definitively settles
the question. The agreement provides that ‘‘[i]t is under-
stood that 3 Cooper Lane . . . is for sale and that Joan
E. Frank . . . has entered into this agreement with [the
plaintiff] to stage the [p]roperty for the purpose of sell-
ing the [p]roperty.’’ The initial term of the lease was
for four months or ‘‘until the buyer’s contingencies are
either satisfied or waived with respect to the purchase
of the [p]roperty, whichever comes first. If, after the
expiration of the four . . . months, [t]he [p]roperty is
not in escrow, the lease shall continue on a month to
month basis provided that either party may terminate
upon [fifteen] business day prior written notice . . . .’’
Joan Frank was required to ‘‘inform [the plaintiff] when
the [p]roperty goes into escrow, the date the contingen-
cies are expected to be satisfied, and the date escrow
is expected to close. [The plaintiff] may remove the
[i]nventory once all of the buyer’s contingencies have
been met, expired or have been waived,’’ or ‘‘[i]f the
[p]roperty is not listed on the [multiple listing services]
within [sixty] days of the completion of staging . . . .’’
Joan Frank was further required to ‘‘notify the prospec-
tive buyer of the [p]roperty that the [i]nventory is the
subject of th[e] [a]greement and that [the plaintiff] has
the absolute right hereunder to remove the [i]nventory
from the [p]roperty before the close of escrow. [Joan
Frank] shall provide [the plaintiff] with at least [ten]
business days prior written notice . . . of the antici-
pated date of the close of escrow or other sale or trans-
fer of the [p]roperty. . . . [The plaintiff] shall have not
less than [three] business days (following the expiration
of the time period pursuant to the [n]otice of [c]losing
[d]ate or the [n]otice of [t]ermination) within which to
complete its removal of all [i]nventory . . . .’’
The sale of the defendants’ residence was the stated
purpose of the agreement, defined the duration of the
agreement, and delimited its various terms. Under the
agreement, for example, the plaintiff could remove the
home furnishings and décor if the defendants’ residence
was not listed for sale within a prescribed period of
time or if, after listing, a buyer had been found and the
buyer’s contingencies had been met, expired, or waived.
Additionally, the initial lease term was delineated by
the procurement of a buyer for the residence and auto-
matically continued on a monthly basis, so long as the
defendants’ residence was not in escrow or the lease
was not terminated. Given that the terms of the agree-
ment were intertwined with the sale of the property,
we conclude that the agreement was inextricably
related to, or an integral adjunct or accessory to, the
sale of the defendants’ residence and, therefore,
excluded from the definition of a ‘‘home solicitation
sale’’ pursuant to § 42-134a (a) (5). Accordingly, the
trial court correctly determined that the agreement was
not subject to the notice of cancellation provisions in
the HSSA.
III
Lastly, we address the defendants’ claim that the trial
court’s award of damages was improper. The defen-
dants contend that the trial court awarded the plaintiff
‘‘double damages’’ by rendering judgment against both
George Frank and Joan Frank for the same loss and
incorrectly calculated the amount of damages for which
Joan Frank was liable on the breach of contract count
by including the conversion value of the home furnish-
ings and décor. The plaintiff acknowledges that it ‘‘may
collect only once for the same injury’’ but argues that the
trial court ‘‘properly awarded the appropriate amount
as to each count representing recovery for each wrong
complained of.’’ The plaintiff further argues that the
trial court properly included the value of the home
furnishings and décor in its award of damages on the
breach of contract count because Joan Frank’s wrong-
ful conduct resulted ‘‘in the total loss of that inventory
to the plaintiff.’’
We begin our analysis with the defendants’ double
recovery claim. ‘‘Plaintiffs are not foreclosed from suing
multiple defendants, either jointly or separately, for
injuries for which each is liable, nor are they foreclosed
from obtaining multiple judgments against joint [or suc-
cessive] tortfeasors.’’ (Footnote omitted; internal quota-
tion marks omitted.) Chapman Lumber, Inc. v. Tager,
288 Conn. 69, 111–12, 952 A.2d 1 (2008). ‘‘This rule is
based on the sound policy that seeks to ensure that
parties will recover for their damages.’’ Gionfriddo v.
Gartenhaus Cafe, 211 Conn. 67, 71, 557 A.2d 540 (1989).
‘‘The possible rendition of multiple judgments does not,
however, defeat the proposition that a litigant may
recover just damages only once. . . . Double recovery
is foreclosed by the rule that only one satisfaction may
be obtained for a loss that is the subject of two or more
judgments.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) Id., 71–72; see
Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 29
n.14, 699 A.2d 964 (1997) (‘‘the principle against double
recovery for the same loss applies in both tort and
contract law’’); 2 Restatement (Second), Judgments
§ 49, comment (b), p. 36 (1982) (‘‘[a] judgment against
one obligor under a contract does not terminate the
claim against another obligor under the contract’’). In
general, a loss is satisfied when a judgment of economic
damages rendered in favor of the plaintiff in compensa-
tion for the loss has been paid in full. See Gionfriddo
v. Gartenhaus Cafe, supra, 69, 75–76 (plaintiff was pre-
cluded from suing joint tortfeasor for wrongful death
of decedent under double recovery doctrine because
‘‘the plaintiff received compensatory, exemplary and
treble damages in the amount of $1,187,763’’ for his loss
in prior action, which ‘‘the defendants . . . satisfied
. . . in full’’); see also Mazziotti v. Allstate Ins. Co.,
240 Conn. 799, 807, 695 A.2d 1010 (1997) (‘‘The satisfac-
tion of a judgment refers to compliance with or fulfill-
ment of the mandate thereof. . . . There is realistically
no substantial difference between the words paid and
satisfied in the judgment context.’’ (Citation omitted;
internal quotation marks omitted.)).
The trial court’s judgment on count one of the com-
plaint against George Frank and count two of the com-
plaint against Joan Frank awarded money damages in
different amounts for the same underlying loss. George
Frank is personally liable for the damages awarded
on count one; Joan Frank is personally liable for the
damages awarded on count two.22 Any payments made
by George Frank in satisfaction of the judgment against
him reduces the amount owed by Joan Frank, and any
payments made by Joan Frank in satisfaction of the
judgment against her reduces the amount owed by
George Frank. See Gionfriddo v. Gartenhaus Cafe,
supra, 211 Conn. 72 n.5 (‘‘ ‘When a judgment has been
rendered against one of several persons each of whom
is liable for a loss claimed in the action on which the
judgment is based . . . [a]ny consideration received
by the judgment creditor in payment of the judgment
debtor’s obligation discharges, to the extent of the
amount of value received, the liability to the judgment
creditor of all other persons liable for the loss.’ Thus,
‘[a] payment by one person liable for a loss reduces
pro tanto the amount that the injured person is entitled
to receive from other persons liable for the loss.’ ’’),
quoting 2 Restatement (Second), supra, § 50 and com-
ment (c), pp. 40–42.
It is undisputed that the plaintiff’s loss was wholly
unsatisfied when the trial court rendered judgment in
favor of the plaintiff on counts one (enforcement of the
California judgment against George Frank) and two
(breach of contract against Joan Frank). Although the
plaintiff may recover only once for its loss, the trial
court was ‘‘not foreclosed’’ from rendering judgment in
favor of the plaintiff against both defendants ‘‘jointly
or separately, for injuries for which each is liable . . .
to ensure that [the plaintiff] will recover for [its] dam-
ages.’’ (Ciations omitted; emphasis added; footnotes
omitted.) Gionfriddo v. Gartenhaus Cafe, supra, 211
Conn. 71. We therefore reject the defendants’ double
recovery claim.
Lastly, the defendants contend that the amount of
damages awarded to the plaintiff on its breach of con-
tract claim against Joan Frank was incorrect because
it included the value of the home furnishings and décor
installed at 3 Cooper Lane. The following additional
facts are relevant to this claim. The agreement provided
that, at the conclusion of the lease term for the rental
of the home furnishings and décor, the plaintiff ‘‘shall
have not less than [three] business days . . . within
which to complete its removal of all [i]nventory, with
[Joan Frank’s] permission, which will not be unreason-
ably withheld.’’ (Emphasis in original.) Furthermore,
the agreement required Joan Frank to acquire, prior
to installation of the home furnishings and décor, a
$200,000 ‘‘insurance policy insuring the value of the
[i]nventory and a [g]eneral [l]iability policy of insur-
ance, each naming [the plaintiff] as an additional
insured.’’ Following installation, the plaintiff was
required to provide Joan Frank ‘‘with a list of the
[i]nventory and values. If [i]nventory is damaged, lost,
stolen or destroyed, [Joan Frank] will immediately
notify [the plaintiff] in writing, and file all necessary
reports, including those required by [the] insurer or by
law. . . . [Joan Frank] shall be primarily liable to [the
plaintiff] for any loss or liability related to the [i]mprove-
ments and shall pay to [the plaintiff] any ‘[s]tipulated
[l]oss [v]alue’ or other damages not covered by insur-
ance.’’
At trial, the plaintiff admitted into evidence a list of
the home furnishings and décor installed at 3 Cooper
Lane pursuant to the parties’ agreement, as well as
documentation of their value and photographs depicting
their quality and appearance after installation. On the
basis of this evidence, the trial court found that the
home furnishings and décor were ‘‘appropriate’’ for the
defendants’ ‘‘luxury home in an affluent community
. . . .’’ The trial court also found ‘‘credible the plaintiff’s
uncontested evidence [namely] the schedule of values
of the inventory based on standard industry pricing for
used furniture of the quality provided to the defendants.
The plaintiff has lost the use of the inventory, and,
moreover, the defendants have been wrongfully using
the furniture in their personal residence for approxi-
mately three years. The inventory was . . . supposed
to be there [only] for a period of months. Consequently,
the plaintiff had to replace the inventory. The essence
of the staging agreement was to give the defendants’
residence a showroom quality appearance, and, as
noted, the inventory is reflective of that quality. There-
fore, the court awards damages related to the inventory
loss for the plaintiff and against Joan Frank on the
first count in the amount of $235,598. Additionally, the
evidence establishes that Joan Frank is responsible to
the plaintiff for the rental loss and related late fees in
the amount of $47,508.45. In view of the foregoing, the
court awards damages on the second count for the
plaintiff and against . . . Joan Frank . . . in the
amount of $283,106.45.’’
It is well established that ‘‘[t]he trial court has broad
discretion in determining damages. . . . The determi-
nation of damages involves a question of fact that will
not be overturned unless it is clearly erroneous.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bev-
erly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, 247 Conn. 48, 68, 717 A.2d 724 (1998). ‘‘In a
case tried before a court, the trial judge is the sole
arbiter of the credibility of the witnesses and the weight
to be given specific testimony. . . . On appeal, we will
give the evidence the most favorable reasonable con-
struction in support of the verdict to which it is entitled.
. . . A factual finding may be rejected by this court
only if it is clearly erroneous. . . . A finding is clearly
erroneous when although there is evidence to support
it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has
been committed. . . . We are, therefore, constrained
to accord substantial deference to the fact finder on
the issue of damages. In deciding whether damages
properly have been awarded, however, we are guided
by the well established principle that such damages
must be proved with reasonable certainty.’’ (Citation
omitted; internal quotation marks omitted.) Id., 68–69.
‘‘The general rule in breach of contract cases is that
the award of damages is designed to place the injured
party, so far as can be done by money, in the same
position as that which he would have been in had the
contract been performed. . . . It has traditionally been
held that a party may recover general contract damages
for any loss that may fairly and reasonably be consid-
ered [as] arising naturally, i.e., according to the usual
course of things, from such breach of contract itself.’’
(Internal quotation marks omitted.) Torosyan v. Boeh-
ringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1,
32, 662 A.2d 89 (1995). Thus, in a breach of contract
action, the plaintiff’s damages are limited to those that
‘‘the defendant had reason to foresee as the probable
result of the breach at the time when the contract was
made.’’ Neiditz v. Morton S. Fine & Associates, Inc.,
199 Conn. 683, 689 n.3, 508 A.2d 438 (1986); see also 3
Restatement (Second), Contracts § 351 (1) and (2), p.
135 (1981) (‘‘Damages are not recoverable for loss that
the party in breach did not have reason to foresee as
a probable result of the breach when the contract was
made. . . . Loss may be foreseeable as a probable
result of a breach because it follows from the breach
. . . in the ordinary course of events . . . .’’). ‘‘[T]he
question whether a particular element of loss was rea-
sonably foreseeable is a question of fact . . . .’’ (Inter-
nal quotation marks omitted.) Ambrogio v. Beaver Road
Associates, 267 Conn. 148, 162, 836 A.2d 1183 (2003).
We conclude that the trial court’s award of damages
for the plaintiff’s loss of the home furnishings and décor
was not clearly erroneous.23 The agreement required
Joan Frank to permit the plaintiff to remove the home
furnishings and décor at the conclusion of the lease
term, to insure them for $200,000, and to pay the plaintiff
‘‘damages not covered by insurance’’ if they were ‘‘dam-
aged, lost, stolen or destroyed . . . .’’ The trial court
found that Joan Frank breached the agreement and
‘‘wrongfully us[ed] the furniture in [the defendants’]
personal residence for approximately three years,’’ thus
causing the plaintiff’s total loss of the inventory valued
at $235,598. In light of these facts, which the defendants
do not challenge on appeal, we perceive no error in the
trial court’s finding that the plaintiff’s loss of the home
furnishings and décor was a reasonably foreseeable
consequence of Joan Frank’s breach of the agreement.
We therefore uphold the trial court’s award of damages
in favor of the plaintiff.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and McDONALD
and KAHN, Js., concurred.
* September 22, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The trial court determined that there was no need to adjudicate the
quantum meruit claim against Joan Frank after finding her liable for breach
of contract. The plaintiff subsequently withdrew the breach of contract and
quantum meruit claims against George Frank.
2
Addendum B is a preprinted form that, in its original format, provided
in relevant part: ‘‘I authorize [the plaintiff] to charge my credit card for any
due amount resulting from this staging/design agreement. I agree by signing
below to personally guarantee to [the plaintiff], any obligations that may
become due.
‘‘Upon acceptance of this application, the client agrees to the payment
terms stated by the creditor, [the plaintiff]. A 10 [percent] finance charge
will apply on any open balances beyond terms. I understand that I am fully
responsible for all balances on my account, and I am liable for additional
charges that may be incurred by [the plaintiff] as a result of collection and/
or legal proceedings. . . .’’
George Frank crossed out the term ‘‘any’’ in the first sentence and inserted
the sum of ‘‘19,000’’ in its place. George Frank also crossed out the phrase,
‘‘any obligations that may become due,’’ in the second sentence. Finally,
the last sentence of the second paragraph is crossed out entirely.
3
Sometime during the pendency of the present appeal, the defendants
sold their residence at 3 Cooper Lane. See Meribear Productions, Inc. v.
Frank, 165 Conn. App. 305, 309, 140 A.3d 993 (2016), rev’d, 328 Conn. 709,
183 A.3d 1164 (2018). The plaintiff’s counsel stated at oral argument before
the Appellate Court that the current whereabouts of the home furnishings
and décor are unknown. See id.
4The plaintiff ‘‘attempted constructive service on the defendants’’ at the
office of LCP Homes, Inc., ‘‘located at 1175 Post Road East in Westport.’’
LCP Homes, Inc., ‘‘is a corporation owned by George Frank, and in which
he and Joan Frank are corporate officers.’’ The trial court determined that
service of process on Joan Frank was insufficient under § 415.20 (b) of the
California Code of Civil Procedure because ‘‘Joan Frank is not an owner
or operator of the company, and, moreover, there is no evidence that she
was ever present at the office.’’ See Cal. Civ. Proc. Code § 415.20 (b) (Deering
Supp. 2020) (providing that, in lieu of personal service, ‘‘a summons may
be served by leaving a copy of the summons and complaint at the person’s
. . . usual place of business’’). With respect to George Frank, the trial court
found that substituted service of process was sufficient on the ground that
‘‘he is an owner of LCP Homes [Inc.] and Andy Frank Builders, which shared
the [office at] 1175 Post Road East,’’ and ‘‘he had a presence at the office
at the time of service . . . .’’
5
We granted the defendants’ petition for certification to appeal, limited
to the following issues: ‘‘Did the Appellate Court correctly determine that
the trial court properly determined that: (1) the foreign judgment against
[George Frank] was enforceable after concluding that he had minimum
contacts with California that warranted the exercise of its jurisdiction; (2)
the contract signed by [Joan Frank] was enforceable notwithstanding the
provisions of the [HSSA]; and (3) an award of double damages to the plaintiff
was appropriate.’’ Meribear Productions, Inc. v. Frank, 322 Conn. 903, 138
A.3d 288 (2016).
6
On remand, the plaintiff moved for an award of postjudgment interest
pursuant to General Statutes § 37-3a (a) on the breach of contract claim
against Joan Frank. The trial court concluded that the plaintiff was entitled
to postjudgment interest in the amount of ‘‘5 percent per annum from the
date of the final judgment until the date the judgment is paid’’ because Joan
Frank had ‘‘deprived [the plaintiff] of the use of its money and furniture’’
since 2011.
7
The full faith and credit clause of the United States constitution provides
in relevant part that ‘‘Full Faith and Credit shall be given in each State to
the . . . judicial Proceedings of every other State. . . .’’ U.S. Const., art.
IV, § 1.
8
Of course, the due process clause sets the outer limits of a state court’s
exercise of personal jurisdiction. See, e.g., Goodyear Dunlop Tires Opera-
tions, S.A. v. Brown, 564 U.S. 915, 923, 131 S. Ct. 2846, 180 L. Ed. 2d 796(2011) (‘‘[t]he [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment sets
the outer boundaries of a state tribunal’s authority’’ to exercise personal
jurisdiction over defendant); World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 291, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) (‘‘[a] judgment rendered
in violation of due process is void in the rendering [s]tate and is not entitled
to full faith and credit elsewhere’’). Consistent with the requirements of the
full faith and credit clause, however, we first must determine whether the
exercise of jurisdiction comports with the applicable law of the foreign
state. Under some circumstances—including the present case, as we shall
see—we need go no further than an examination of state law because, if
jurisdiction is established under state law, then the due process clause
is satisfied.
9
The concurring and dissenting opinion presumes that, by resting our
jurisdictional holding on the closely related doctrine, we implicitly have
concluded that George Frank lacks minimum contacts with California. That
presumption is incorrect. The plaintiff’s primary argument throughout this
litigation has been that George Frank consented to personal jurisdiction in
California. The closely related doctrine on which we base our holding falls
within ‘‘one of four traditional bases for the exercise of personal jurisdiction
over a nonresident defendant’’ in California, namely, consent, which is ‘‘sepa-
rate from the ‘minimum contacts’ analysis.’’ Nobel Farms, Inc. v. Pasero,
106 Cal. App. 4th 654, 658, 130 Cal. Rptr. 2d 881 (2003). Because consent
is an alternative basis for personal jurisdiction, we need not conduct a
minimum contacts analysis, and we express no opinion on the merits of
the parties’ minimum contacts arguments.
10
To the extent the defendants contend that the forum selection clause
is unenforceable under the HSSA because the plaintiff failed to provide
them with notice of their cancellation rights as required by § 42-135a (2),
we reject this claim for the reasons explained in part II of this opinion.
11
In the context of parent-subsidiary corporate relationships, courts also
consider ‘‘the [nonsignatory’s] ownership of the signatory . . . .’’ Carlyle
Investment Management, LLC v. Moonmouth Co. SA, supra, 779 F.3d 219.
12
Indeed, the plaintiff’s primary argument on appeal is that ‘‘George Frank
expressly consented to the jurisdiction of the California courts by knowingly
signing a contract that contained a forum selection clause, thereby making
the California judgment fully enforceable against him in [Connecticut].’’
Although the concurring and dissenting opinion correctly observes that
‘‘George Frank has consistently argued that he lacked sufficient minimum
contacts with California,’’ the plaintiff also consistently has argued that
George Frank consented to personal jurisdiction in California by virtue of
his involvement in the negotiation and execution of the agreement and
addendum B.
13
Although the plaintiff did not file notice of its intention to raise George
Frank’s consent to jurisdiction in California as an alternative ground on
which to affirm the judgment of the trial court pursuant to Practice Book
§ 63-4 (a) (1), this procedural irregularity does not preclude our review of
the plaintiff’s claim. See, e.g., Gerardi v. Bridgeport, 294 Conn. 461, 466,
985 A.2d 328 (2010) (reviewing alternative ground for affirmance, even
though defendants did not file notice under § 63-4 (a) (1), because there
was no prejudice to the plaintiffs given that ‘‘the defendants . . . raised
the claim in their briefs . . . and the plaintiffs had an adequate opportunity
to respond, and did so, in their reply briefs’’).
14
The concurring and dissenting opinion is concerned that ‘‘we might be
going beyond the confines of our adversarial system in our discovery of an
additional doctrine that supports the plaintiff . . . .’’ As a general admoni-
tion, the concern is valid. The issue arises because we will occasionally rest
our decision on a legal doctrine or theory that is not identical to the one
argued and briefed by the parties. We agree with the concurring and dis-
senting opinion that, ordinarily, we must desist from deciding cases on
grounds that the parties have not raised. In our view, however, the distinction
in our case law between claims and arguments, as outlined in the text
accompanying this footnote, accurately and adequately delineates the ‘‘limits
of th[e] latitude’’ that govern our appellate review. For the reasons set forth
herein, we are confident that we have not exceeded those limits under the
circumstances of this case.
15
We do not share the concern of the concurring and dissenting opinion
regarding the factual findings of the trial court. The trial court expressly
found that both of the defendants resided at 3 Cooper Lane and ‘‘have been
wrongfully using the furniture in their personal residence for . . . years.’’
There is no question that George Frank received a direct benefit under the
agreement.
16
General Statutes § 42-135a provides: ‘‘No agreement in a home solicita-
tion sale shall be effective against the buyer if it is not signed and dated by
the buyer or if the seller shall:
‘‘(1) Fail to furnish the buyer with a fully completed receipt or copy of all
contracts and documents pertaining to such sale at the time of its execution,
which contract shall be in the same language as that principally used in the
oral sales presentation and which shall show the date of the transaction
and shall contain the name and address of the seller, and in immediate
proximity to the space reserved in the contract for the signature of the
buyer, or on the front page of the receipt if a contract is not used, and in
boldface type of a minimum size of ten points, a statement in substantially
the following form:
‘‘YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME
PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE
OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLA-
TION FORM FOR AN EXPLANATION OF THIS RIGHT.
‘‘(2) Fail to furnish each buyer, at the time such buyer signs the home
solicitation sales contract or otherwise agrees to buy consumer goods or
services from the seller, a completed form in duplicate, captioned ‘NOTICE
OF CANCELLATION’, which shall be attached to the contract or receipt
and easily detachable, and which shall contain in ten-point boldface type
the following information and statements in the same language as that used
in the contract:
‘‘NOTICE OF CANCELLATION
‘‘. . . . (Date of Transaction)
‘‘YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR
OBLIGATION, WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE.
‘‘IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE
BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE
INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN
BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CAN-
CELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF
THE TRANSACTION WILL BE CANCELLED.
‘‘IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT
YOUR RESIDENCE, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN
RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT
OR SALE; OR YOU MAY, IF YOU WISH, COMPLY WITH THE INSTRUC-
TIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE
GOODS AT THE SELLER’S EXPENSE AND RISK.
‘‘IF YOU DO MAKE THE GOODS AVAILABLE TO THE SELLER AND
THE SELLER DOES NOT PICK THEM UP WITHIN TWENTY DAYS OF THE
DATE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE
GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE
THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO
RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU
REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER
THE CONTRACT.
‘‘TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND
DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRIT-
TEN NOTICE, OR SEND A TELEGRAM TO . . . . (Name of Seller) AT
. . . . (Address of Seller’s Place of Business) NOT LATER THAN MIDNIGHT
OF . . . . (Date)
‘‘I HEREBY CANCEL THIS TRANSACTION.
‘‘. . . . (Date)
‘‘. . . . (Buyer’s Signature)
‘‘(3) Fail, before furnishing copies of the ‘Notice of Cancellation’ to the
buyer, to complete both copies by entering the name of the seller, the
address of the seller’s place of business, the date of the transaction, and
the date, not earlier than the third business day following the date of the
transaction, by which the buyer may give notice of cancellation.
‘‘(4) Include in any home solicitation sale contract or receipt any confes-
sion of judgment or any waiver of any of the rights to which the buyer is
entitled under this chapter, including specifically such buyer’s right to cancel
the sale in accordance with the provisions of this section.
‘‘(5) Fail to inform each buyer, orally, at the time such buyer signs the
contract or purchases the goods or services, of such buyer’s right to cancel.
‘‘(6) Misrepresent in any manner the buyer’s right to cancel.
‘‘(7) Fail or refuse to honor any valid notice of cancellation by a buyer
and within ten business days after the receipt of such notice, to (A) refund
all payments made under the contract or sale; (B) return any goods or
property traded in, in substantially as good condition as when received by
the seller; (C) cancel and return any negotiable instrument executed by the
buyer in connection with the contract or sale and take any action necessary
or appropriate to terminate promptly any security interest created in the
transaction; and (D) cancel and return any contract executed by the buyer
in connection with the transaction.
‘‘(8) Negotiate, transfer, sell, or assign any note or other evidence of
indebtedness to a finance company or other third party prior to midnight
of the fifth business day following the date the contract was signed or the
goods or services purchased.
‘‘(9) Fail, within ten business days of receipt of the buyer’s notice of
cancellation, to notify such buyer whether the seller intends to repossess
or to abandon any shipped or delivered goods.’’
17
General Statutes § 42-134a (a) provides in relevant part that ‘‘ ‘[h]ome
solicitation sale’ means a sale, lease, or rental of consumer goods or services,
whether under single or multiple contracts, in which the seller or his repre-
sentative personally solicits the sale, including those in response to or
following an invitation by the buyer, and the buyer’s agreement or offer to
purchase is made at a place other than the place of business of the seller.
The term ‘home solicitation sale’ does not include a transaction . . . (5)
pertaining to the sale or rental of real property, to the sale of insurance, to
the sale of newspapers or to the sale of securities or commodities by a
broker-dealer registered with the securities and exchange commission
. . . .’’
18
In the words of Justice Antonin Scalia, applying the phrase ‘‘ ‘relate[s]
to’ . . . according to its terms [is] a project doomed to failure, since, as
many a curbstone philosopher has observed, everything is related to every-
thing else.’’ California Division of Labor Standards Enforcement v. Dillin-
gham Construction, N.A., Inc., 519 U.S. 316, 335, 117 S. Ct. 832, 136 L. Ed.
2d 791 (1997) (Scalia, J., concurring). Accordingly, when the application
requires as a practical matter that some limitation be used to cabin such
an unbounded phrase, the underlying doctrinal purpose or legislative inten-
tion will set those boundaries. See Ford Motor Co. v. Montana Eighth
Judicial District Court, U.S. , 141 S. Ct. 1017, 1033, 209 L. Ed. 2d
225 (2021) (Alito, J., concurring in the judgment) (‘‘[t]o rein in th[e] phrase
[‘relate to’], limits must be found’’).
19
We note that, under the Home Improvement Act (HIA), General Statutes
§ 20-418 et seq., home improvement contracts ‘‘shall be considered a home
solicitation sale pursuant to chapter 740 and shall be subject to the require-
ments of said chapter regardless of the location of the transaction or of
the signing of the contract.’’ General Statutes § 20-429 (e). Thus, home
improvement contractors must provide purchasers with notice of their can-
cellation rights. See generally Wright Bros. Builders, Inc. v. Dowling, 247
Conn. 218, 231, 720 A.2d 235 (1998) (‘‘The HIA is a remedial statute that
was enacted for the purpose of providing the public with a form of consumer
protection against unscrupulous home improvement contractors. . . .The
aim of the statute is to promote understanding on the part of consumers
with respect to the terms of home improvement contracts and their right
to cancel such contracts so as to allow them to make informed decisions
when purchasing home improvement services.’’ (Citation omitted.)).
20
The defendants argue that the real property exception to the HSSA
should be construed narrowly consistent with the statute of frauds, which
does not apply to listing agreements or broker contracts. See, e.g., Location
Realty, Inc. v. Colaccino, 287 Conn. 706, 722, 949 A.2d 1189 (2008) (broker
‘‘listing agreements are governed exclusively by [General Statutes] § 20-325a
[and] such contracts do not fall within our statute of frauds’’ (internal
quotation marks omitted)); Brazo v. Real Estate Commission, 177 Conn.
515, 522, 418 A.2d 883 (1979) (‘‘in this state, a contract employing a broker
to sell land is not within the [s]tatute of [f]rauds’’). The language and purpose
of the HSSA is fundamentally different from that of the statute of frauds,
however, and the defendants’ reliance on our case law construing the statute
of frauds is therefore misplaced. Compare General Statutes § 52-550 (a)
(‘‘[n]o civil action may be maintained in the following cases unless the
agreement . . . is made in writing and signed by the party . . . to be
charged . . . (4) upon any agreement for the sale of real property or any
interest in or concerning real property’’), with General Statutes § 42-134a
(a) (5) (‘‘[t]he term ‘home solicitation sale’ does not include a transaction
. . . pertaining to the sale or rental of real property’’); see also Heyman v.
CBS, Inc., 178 Conn. 215, 221, 423 A.2d 887 (1979) (‘‘the primary purpose
of the statute [of frauds] is to provide reliable evidence of the existence
and the terms of the contract’’).
21
In arriving at this conclusion, we recognize that, in 2013, the FTC clarified
the scope of the real property exception as applied to mortgage assistance
relief services. See Federal Trade Commission, Rule Concerning Cooling-
Off Period for Sales Made at Homes or at Certain Other Locations, 78 Fed.
Reg. 3855, 3857 (January 17, 2013). The FTC determined that the real property
exception did not apply ‘‘to services related to real property, such as mort-
gage modification, mortgage loan brokerage, and foreclosure rescue ser-
vices’’ because, ‘‘[a]s determined by the [FTC] when it promulgated the
[cooling-off] [r]ule, this exclusion, which renders the [r]ule inapplicable to
the sale of real estate, does not necessarily reach so far as to exempt service-
related transactions in which a consumer engages a real estate broker to
sell his or her home or to rent and manage his or her residence during a
temporary period of absence. Similarly, the exclusion does not necessarily
reach so far as to exempt the . . . mortgage assistance relief services
. . . .’’ (Footnote omitted.) Id., 3857 and n.24, citing Federal Trade Commis-
sion, supra, 37 Fed. Reg. 22,948. In the view of the FTC, ‘‘the [c]ooling-[o]ff
[r]ule’s right to cancel should extend to door-to-door sales of [mortgage
assistance relief services]’’ because sellers ‘‘direct their claims to financially
distressed consumers who often are desperate for any solution to their
mortgage problems and thus are vulnerable to the providers’ purported
solutions.’’ Federal Trade Commission, supra, 78 Fed. Reg. 3857. These
concerns are ‘‘exacerbated in situations in which sellers exercise undue
influence over susceptible classes of purchasers’’ in the context of door-to-
door sales. Id.The FTC’s 2013 statement does not undermine our conclusion that the
real property exception in the HSSA encompasses a limited category of
consumer goods or services. The 2013 statement was released more than
thirty years after the promulgation of the FTC’s cooling-off rule and, there-
fore, is ‘‘a hazardous basis for inferring the intent of [the] earlier’’ FTC.
(Internal quotation marks omitted.) State v. Nixon, 231 Conn. 545, 560, 651
A.2d 1264 (1995); see also 2A N. Singer & S. Singer, Statutes and Statutory
Construction (7th Ed. 2014) § 48:20, p. 641 (‘‘a subsequent legislature may
change an act to achieve whatever prospective meaning or effect it desires,
but courts generally give little or no weight to the views of members of
subsequent legislatures about the meaning of acts passed by previous legisla-
tures’’). Even if this postenactment statement could be deemed useful in
illuminating the purpose and intent animating the 1974 FTC exception to
the cooling-off rule, it was not available to the Connecticut legislature in
1976, when the real property exception to the HSSA was adopted, and,
therefore, is not indicative of our own legislature’s intent. In addition, we
cannot ignore the fact that the 2013 statement relates to special concerns
stemming from the fallout of the 2008 financial crisis, which specifically
involved the mortgage lending industry. This context plainly informs the
FTC’s statement expressing the view that certain transactions pertaining to
the sale or rental of real property may fall outside the scope of the real
property exception if a seller targets vulnerable and desperate consumers
who are not in a position to make ‘‘informed purchasing decisions . . . .’’
Federal Trade Commission, supra, 78 Fed. Reg. 3857. The agreement at
issue in this case is far removed from such concerns.
22
The California default judgment compensated the plaintiff for George
Frank’s breach of the agreement, just as the trial court’s judgment on count
two compensated the plaintiff for Joan Frank’s breach of the agreement.
The trial court’s award of damages against George Frank on count one,
enforcement of the California default judgment, was the same as the amount
awarded by the California court: $259,746.10. The trial court’s award of
damages against Joan Frank on count two, breach of contract, was for
$283,106.45. The award of damages against Joan Frank was not calculated
on the basis of the California judgment but, instead, was determined by the
trial court on the basis of evidence presented at trial regarding the damages
sustained by the plaintiff as a result of Joan Frank’s breach of the agreement.
On appeal, the defendants do not challenge the discrepancy between the
damages awarded against George Frank and Joan Frank.
23
Joan Frank does not challenge the trial court’s award of $47,508.45 for
the lost rental value of the home furnishings and décor and related late
fees; nor does she claim that the award of damages for both rental loss and
inventory loss for the home furnishings was improper.