Downing v. Dragone

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CHRISTINE DOWNING v. EMMANUEL
DRAGONE ET AL.
(AC 39942)
DiPentima, C. J., and Lavine and Pellegrino, Js.
Syllabus
The plaintiff, a professional auctioneer, sought to recover damages for, inter
alia, breach of contract from the defendant automobile retail company,
D Co., and the defendant E, who operated D Co. with his brother. The
parties disagreed as to the appropriate amount of compensation due to
the plaintiff for the work that she had performed in connection with D
Co.’s classic automobile auction. At trial, E testified that the plaintiff
should receive her standard auction fee, plus expenses, that she allegedly
requested during a prior meeting with E and his brother. The plaintiff
testified that her standard fee did not apply and that the defendants
owed her a certain percentage of the gross auction proceeds pursuant
to an unsigned, written agreement that she had drafted. The court found
that the alleged agreement was an implied in fact contract and that E
was charged with knowledge of its contents, including its compensation
provision, because E testified that he had that contract on his desk but
did not read it until four months after the auction. The court concluded
that the plaintiff was entitled to receive a certain percentage of the
gross auction proceeds and rendered judgment in part for the plaintiff
on her breach of contract claim, from which the defendants appealed
to this court. Held that the trial court’s decision rested on a clearly
erroneous factual finding that was not supported by any evidence in
the record; there was no evidence from which the trial court could have
found that E testified that he had the written contract on his desk but
did not read it until four months after the auction, and because the
court substantially relied on that factual finding when it found in favor
of the plaintiff on her breach of contract claim and, more specifically,
when it reasoned that E was charged with knowledge of the contents
of the contract, including its compensation provision, a new trial on the
breach of contract claim was necessary.
Argued February 22—officially released September 11, 2018
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk and
tried to the court, Lee, J.; judgment for the plaintiff in
part, from which the defendants appealed to this court.
Reversed in part; new trial.
Edward T. Murnane, Jr., for the appellant (defendant
Dragone Classic Motorcars, Inc.).
Jeffrey Hellman, for the appellee (plaintiff).
Opinion
LAVINE, J. The plaintiff, Christine Downing, brought
this action to recover money owed for services she is
alleged to have rendered in accordance with an
agreement she had with the defendant Dragone Classic
Motorcars, Inc.1 After a trial to the court, the court
found in favor of the plaintiff on her breach of contract
claim and rendered judgment accordingly. On appeal,
the defendant principally claims that the trial court
based its legal conclusions on a clearly erroneous find-
ing of fact.2 We agree with the defendant and, therefore,
reverse in part the judgment of the trial court and
remand the case for further proceedings.
The trial court’s memorandum of decision and the
record reveal the following relevant facts and proce-
dural history. The plaintiff is an experienced auctioneer.
While working as an auctioneer, she met George Dra-
gone (George). George and his brother, Emmanuel Dra-
gone (Emmanuel), operate the defendant company, a
used and classic car retail business. In the summer of
2011, George told the plaintiff that the defendant was
considering staging its first, ‘‘very upscale’’ auction of
classic cars. On January 4, 2012, Emmanuel sent the
plaintiff an e-mail, ‘‘saying that [he and George] had
decided to hold two auctions in the coming year, and
that they would like her to serve as their auctioneer.’’
On January 26, 2012, George and Emmanuel held an
initial meeting regarding the planned auctions, which
the plaintiff attended. The first auction was set to take
place on May 12, 2012,3 and also would be the plaintiff’s
first auction of classic cars. During the initial meeting,
the parties discussed the plaintiff’s expected compensa-
tion. According to Emmanuel, ‘‘[the plaintiff] told him
. . . that she charged $2500 to conduct an auction,
and that this is what he believed [they] owed her, plus
expenses.’’ The plaintiff testified, however, ‘‘that $2500
is her standard fee for services on auction day,’’ and
because the May auction involved setting up a ‘‘first-
time auction,’’ she would need to do additional work.
Because of this, she informed Emmanuel that she, there-
fore, required greater compensation. The court found
that, on January 26, 2012, ‘‘[the plaintiff] advised
[Emmanuel] . . . that she would require a fee of 1 per-
cent of the auction’s gross [proceeds], with a minimum
of $30,000, which she said was standard when an auc-
tioneer also sets up the auction.’’ She testified that,
following the initial discussion, she drafted a written
contract reflecting ‘‘that their agreement was for 1 per-
cent of gross [auction proceeds], plus expenses.’’
At trial, the court admitted into evidence a document
that the plaintiff claimed set forth the terms of her
agreement with the defendant (document). The docu-
ment, dated February 2, 2012, was titled, ‘‘Agreement
for Christine Downing to serve as Auction Consultant
for Dragone Classic Auctions (DCA) for their inaugural
auction to be held on May 12, 2012.’’ The document
stated that she ‘‘contract[ed] to provide’’ certain ser-
vices in connection with the auction and, specifically,
‘‘provide[d] for compensation of 1 percent of gross auc-
tion proceeds, with a minimum payment of $30,000,
payable one-third by April 1, [2012], and the balance
within ten days after the auction.’’4 The court found
that this document ‘‘[did] not contain signature lines
for either party,’’ and neither party signed it.
The court found that the plaintiff ‘‘admitted that the
document contained some terms that she had not dis-
cussed with [Emmanuel], but also stated that she did
not hear anything from him or anyone else contradicting
the terms. She maintained that they had discussed, and
he had agreed, to compensation of 1 percent of the
[gross] auction sales.’’ Additionally, the court found
that ‘‘[the plaintiff] testified that she tried to hand this
document to [Emmanuel] but was told to put it on his
desk. [Emmanuel] testified that he had the document
on his desk but did not read it until four months after
the auction.’’
The court credited the plaintiff’s testimony that she
devoted substantial time—approximately 420 hours—
to the planning and organization of the May auction.
On the basis of the evidence, the court found that ‘‘[the
plaintiff] substantially performed the obligations listed
in [the document], including . . . conducting the auto-
mobile auction itself.’’ It further determined that
‘‘[a]pproximately $4.1 million in gross sales was realized
[during the auction] and subsequent related sales.’’ And
although the plaintiff made demands for payment and
attempted to set up meetings with George and Emman-
uel for six months after the auction, her efforts were
to no avail.5
On June 6, 2013, the plaintiff commenced the underly-
ing action. In a two count complaint directed against
Emmanuel and the defendant; see footnote 1 of this
opinion; she alleged (1) breach of contract6 and (2)
unjust enrichment. In its memorandum of decision filed
on December 7, 2016, the court found against the defen-
dant on count one, and in favor of the defendant on
count two.7 This appeal followed. Additional facts will
be set forth as necessary.
As an initial matter, we address the plaintiff’s claim
that the defendant waived all of its claims on appeal
by failing to include them in the preliminary statement
of issues. The defendant’s preliminary statement pre-
sented the following issues for appeal: ‘‘(1) Did the trial
court err in rendering judgment for the plaintiff?; [and]
(2) Such other issues as may become apparent upon a
review of the record.’’ The plaintiff argues that she was
prejudiced by the defendant’s preliminary statement
because (1) she could not timely file a corresponding
preliminary statement of issues and (2) was forced to
pay expedited pricing for portions of the transcript.
Practice Book § 63-4 (a) provides in relevant part:
‘‘Within ten days of filing an appeal, the appellant shall
also file with the appellate clerk the following:
‘‘(1) A preliminary statement of the issues intended
for presentation on appeal. . . .
‘‘Whenever the failure to identify an issue in a prelimi-
nary statement of issues prejudices an opposing party,
the [appellate] court may refuse to consider such
issue.’’
Although we do not condone the defendant’s inade-
quate presentation of the issues for review in its prelimi-
nary statement, we review the merits of its central
claim; see footnote 2 of this opinion; because we con-
clude that the plaintiff has failed to demonstrate that she
was prejudiced. She fully responded to the defendant’s
claims in her appellate brief and presented oral argu-
ment before this court. See, e.g., Mickey v. Mickey, 292
Conn. 597, 603 n.9, 974 A.2d 641 (2009) (plaintiff failed
to raise alternative grounds to affirm in preliminary
statement, but Supreme Court reviewed claims because
defendant was not prejudiced by procedural defect).
We now turn to the dispositive issue raised in this
appeal. The defendant claims that the trial court based
its legal conclusions on a clearly erroneous factual find-
ing. More specifically, the defendant argues that the
trial court imputed to Emmanuel knowledge of the con-
tents of the document submitted into evidence by the
plaintiff, which described her compensation as being 1
percent of the gross auction proceeds, with a minimum
payment of $30,000. The defendant contends that the
trial court reached this decision on the basis of its
finding that ‘‘[Emmanuel] testified that he had the docu-
ment on his desk but did not read it until four months
after the auction.’’ According to the defendant, this lat-
ter finding is clearly erroneous and was the ‘‘linchpin’’
of the trial court’s reasoning. We agree.
In its memorandum of decision, the court found that
an implied in fact contract existed between the parties.8
According to the court, ‘‘[t]he fact that [Emmanuel]
claim[ed] that he did not read the contract until several
months after the auction [was] no defense to [the plain-
tiff’s] claim for compensation.’’ The court determined
that ‘‘the evidence showed that [the plaintiff] gave
[Emmanuel] the contract, which specified compensa-
tion of 1 percent of gross proceeds of the auction, with
a minimum payment of $30,000. There [was] no question
that the [defendant] knew that [the plaintiff] expected
to be paid for her services and that she, in fact, did
provide substantial services in preparation for, and in
the conduct of, the classic car auction.’’ It reasoned
that ‘‘[Emmanuel] [was] charged with knowledge of the
contents of the contract’’ because the plaintiff gave it
to him, and he simply did not read it. The court thus
concluded that the plaintiff was ‘‘entitled to receive
compensation of 1 percent of the gross auction pro-
ceeds,’’ which it found to be $41,000.
We now set forth the relevant legal principles govern-
ing our review. ‘‘[W]here the factual basis of the [trial]
court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous.’’ (Internal quotation
marks omitted.) LeBlanc v. New England Raceway,
LLC, 116 Conn. App. 267, 280, 976 A.2d 750 (2009). ‘‘A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or 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.
. . . Because it is the trial court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings. . . . In reviewing factual find-
ings, [w]e do not examine the record to determine
whether the [court] could have reached a conclusion
other than the one reached. . . . Instead, we make
every reasonable presumption . . . in favor of the trial
court’s ruling.’’ (Internal quotation marks omitted.)
Connecticut Light & Power Co. v. Proctor, 324 Conn.
245, 258–59, 152 A.3d 470 (2016). ‘‘It is well settled that
the existence of an implied in fact contract is a question
of fact for the trier.’’ Id., 258.
‘‘Where . . . some of the facts found [by the trial
court] are clearly erroneous and others are supported
by the evidence, we must examine the clearly erroneous
findings to see whether they were harmless, not only
in isolation, but also taken as a whole. . . . If, when
taken as a whole, they undermine appellate confidence
in the court’s fact finding process, a new hearing is
required.’’ (Internal quotation marks omitted.) LeBlanc
v. New England Raceway, LLC, supra, 116 Conn. App.
281; see also DiNapoli v. Doudera, 28 Conn. App. 108,
112, 609 A.2d 1061 (1992).
The defendant concedes that ‘‘the plaintiff performed
work as an auctioneer for the defendant [and] that the
plaintiff performed some work in helping to organize
and prepare for the [car] auction.’’ According to the
defendant, the only disagreement between the parties
‘‘concerns the amount of the plaintiff’s compensation.’’
We thoroughly have reviewed the record and con-
clude that the trial court’s decision rests on a clearly
erroneous factual finding. There is no evidence from
which the trial court could have found that ‘‘[Emman-
uel] testified that he had the document on his desk but
did not read it until four months after the auction.’’9
(Emphasis added.) The plaintiff, in fact, conceded dur-
ing oral argument before this court that this latter find-
ing was an ‘‘error.’’ The trial court relied on this factual
finding when it found in favor of the plaintiff on her
breach of contract claim.10 Significantly, the court rea-
soned that ‘‘[Emmanuel] [was] charged with knowledge
of the contents of the contract,’’ specifically, the portion
dealing with the alleged compensation provision,
despite ‘‘[his claim] that he did not read the contract
until several months after the auction . . . .’’ The
court’s memorandum of decision, therefore, demon-
strates that, in imputing the terms of the document to
the defendant, the court relied on what it thought to
be Emmanuel’s own testimony. More specifically, the
court relied on ‘‘[Emmanuel’s claim] that he did not
read the contract until several months after the auction
. . . .’’11 At trial, Emmanuel did not so testify. Accord-
ingly, we conclude that the trial court’s reasoning sub-
stantially relied on a clearly erroneous factual finding,
requiring a new trial. See, e.g., DiNapoli v. Doudera,
supra, 28 Conn. App. 112–13 (new hearing in damages
required where trial court ‘‘substantially based’’ its
award on clearly erroneous factual findings); cf.
LeBlanc v. New England Raceway, LLC, supra, 116
Conn. App. 281–82 (even if factual finding was incor-
rect, it was harmless because this court ‘‘[was] not
persuaded that [the] finding formed the basis of the
[trial] court’s judgment’’).12
In reaching its decision, the trial court relied on this
court’s decision in Sandella v. Dick Corp., 53 Conn.
App. 213, 729 A.2d 813, cert. denied, 249 Conn. 926, 733
A.2d 849 (1999). In Sandella, this court held that the
jury reasonably could have inferred that an ‘‘implied
contract’’ existed between the parties on the basis of
a letter in the cross claim defendant’s possession that
it neither signed nor returned. See id., 216–17, 219–22.
This court noted that the jury reasonably could have
determined that the cross claim defendant’s ‘‘failure to
decline the conditions [set forth in the letter] was an
implied acceptance of its conditions.’’ Id., 220. Sandella
did not involve a situation where the trier of fact relied
on a clearly erroneous factual finding, however, and is,
therefore, distinguishable.
The judgment is reversed in part and the case is
remanded for a new trial only as to count one of the
plaintiff’s complaint. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The plaintiff also commenced this action against the named defendant,
Emmanuel Dragone (Emmanuel). The trial court did not find Emmanuel to
be liable under either count of the plaintiff’s two count complaint. The court
rendered judgment only against Dragone Classic Motorcars, Inc. Counsel
for Emmanuel and Dragone Classic Motorcars, Inc., filed an appeal on behalf
of both defendants. Emmanuel, however, did not file a separate brief in this
appeal, and he is not personally aggrieved by the trial court’s judgment. See
General Statutes § 52-263. We therefore refer to Dragone Classic Motorcars,
Inc., as the defendant in this opinion.
2
The defendant also claims that the plaintiff: (1) failed to prove ‘‘mutual
assent or a meeting of the minds, as required to form an express or implied
contract’’; (2) ‘‘failed to prove what her services were reasonably worth’’;
(3) ‘‘harbored a secret intention that [was] not an enforceable contract
provision’’; and (4) needed to present expert testimony to establish ‘‘industry
standards’’ and ‘‘to explain the phrase ‘gross auction proceeds.’ ’’ Because
we conclude that the trial court based its legal conclusions substantially on
a clearly erroneous factual finding, we do not address these additional
claims. Additionally, the defendant withdrew its claim that the trial court
‘‘relied on an exhibit for identification to calculate damages,’’ after conceding
that the exhibit was, in fact, admitted as a full exhibit.
3
The auction was eventually held on May 19, 2012.
4
The portion of the document allegedly addressing the plaintiff’s compen-
sation provided as follows: ‘‘As compensation for the above duties, I require
[1 percent] of the gross auction proceeds, with a minimum payment of
$30,000. I would like [one third] of the minimum, $10,000, to be paid by
April 1, 2012. The remaining balance is due within [ten] days of the auction,
which is May 22, 2012. If you wish to make any amendments or additions
to this agreement, please notify me within [ten] days of your desire to do so.’’
5
The court found that, although the defendant’s financial manager pre-
pared a check for approximately $3800, representing a fee of $2500 plus
expenses, the plaintiff did not receive this check, and it was not cashed.
6
In count one of her complaint, the plaintiff alleged that ‘‘[a] written
contract’’ outlined her obligations and compensation according to the par-
ties’ agreement and that she ‘‘performed the duties outlined in the contract.’’
Notwithstanding her allegations, the trial court found that an implied in fact
contract existed under the circumstances. See footnote 8 of this opinion.
On appeal, the defendant does not argue that the court could not make
such a finding due to the plaintiff’s allegations.
7
Because the court rendered judgment for the defendant on the unjust
enrichment count and the plaintiff did not file an appeal or cross appeal,
we do not discuss the second count further in this opinion.
8
The court ‘‘[found] that the defendants breached an implied contract’’
but did not specify whether it was one implied in fact or one implied in
law. ‘‘The term ‘implied contract’ . . . often leads to confusion because it
can refer to an implied in fact contract or to an implied in law contract.’’
Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
The plaintiff argues in her appellate brief, and conceded during oral argu-
ment before this court, that ‘‘the court found the existence of an implied
in fact contract.’’ As noted by our Supreme Court, ‘‘an implied in law contract
is another name for a claim for unjust enrichment.’’ Vertex, Inc. v. Waterbury,
supra, 278 Conn. 574. The trial court determined that the plaintiff had failed
to prove the value of her services to the defendants and, therefore, could
not prevail on her unjust enrichment claim, and that ‘‘such an award would
be duplicative and inconsistent with an award for breach of contract and
would not be allowed.’’ See, e.g., Connecticut Light & Power Co. v. Proctor,
158 Conn. App. 248, 251 n.7, 118 A.3d 702 (2015) (‘‘[a] court . . . cannot
grant relief on a theory of unjust enrichment unless the court first finds
that there was no contract between the parties’’), aff’d, 324 Conn. 245, 152
A.3d 470 (2016). Because ‘‘an implied in law contract is another name for
a claim for unjust enrichment’’; Vertex, Inc. v. Waterbury, supra, 574; and
the court found against the plaintiff on her claim for unjust enrichment, we,
too, understand the court to have found that an implied in fact contract
existed under the circumstances.
9
During direct examination, Emmanuel testified in relevant part as
follows:
‘‘[The Plaintiff’s Counsel]: Showing you what’s been marked exhibit 1 [the
document]. Do you recognize it?
‘‘[Emmanuel]: Yes.
‘‘[The Plaintiff’s Counsel]: Okay. And when did you first receive exhibit 1?
‘‘[Emmanuel]: It was placed on my desk four months after the auction.
‘‘[The Plaintiff’s Counsel]: Okay. You’re claiming you did not receive it
on or about February 2, 2012?
‘‘[Emmanuel]: Absolutely not.
‘‘[The Plaintiff’s Counsel]: Okay. But you did receive it afterwards?
‘‘[Emmanuel]: Four months after the auction.
***
‘‘[The Plaintiff’s Counsel]: [Emmanuel], how did you receive this
document?
‘‘[Emmanuel]: It was placed on my desk four months after the auction;
it was just laying on my desk in Westport.
‘‘[The Plaintiff’s Counsel]: Do you know who placed it on your desk?
‘‘[Emmanuel]: It either had to be [the plaintiff] or David Bate [a former
employee]. There was no one else that had any knowledge of this.’’
10
It is significant that, under the present circumstances, the trial court
did not rely on a credibility determination. See, e.g., Stewart v. King, 121
Conn. App. 64, 74 n.5, 994 A.2d 308 (2010) (court made no credibility determi-
nations, but ruling on claim ‘‘include[d] implicit findings that it resolved
any credibility determinations and issues involving the testimony in a manner
that supports its ruling’’); LeBlanc v. New England Raceway, LLC, supra,
116 Conn. App. 274 (‘‘[a]s a reviewing court [w]e must defer to the trier of
fact’s assessment of the credibility of the witnesses’’ [internal quotation
marks omitted]). Rather, the trial court’s memorandum of decision demon-
strates that its legal reasoning was substantially based on specific testimony
that it attributed to Emmanuel that did not, in fact, take place at trial.
11
Our conclusion is further supported by statements made by the trial
court during oral argument. In one instance, the following colloquy occurred
between the court and counsel for the plaintiff:
‘‘[The Plaintiff’s Counsel]: Let’s also look a little bit at some of the things
that are undisputed. [Emmanuel] admits that he received exhibit 1 [the
document]. He said it was on his desk. [The plaintiff] said she left it on his
desk. The only thing they disagree about is when it was left on his desk.
She says it was left on his desk in February, [2012], long before the auction.
He says it was left on his desk after the auction, months after his—
‘‘The Court: I don’t think so. I understood [Emmanuel] as like he saw it
after the auction.
‘‘[The Plaintiff’s Counsel]: I think that’s correct, Your Honor. I think you’re
correct.’’ (Emphasis added.)
Later on, when counsel for the plaintiff explained why the defendant
breached a contract between the parties, the court also stated in relevant
part: ‘‘And I think it’s important that [Emmanuel] did acknowledge that he
had the contract somewhere on his desk or somewhere. He hasn’t said,
[I’ve] never seen this before.’’ (Emphasis added.)
12
The plaintiff argues that we may affirm the trial court’s judgment on
the alternative ground that she sufficiently proved a breach of an express
contract. The trial court did not find that an express contract existed. As
an appellate court, we may not find facts. See, e.g., Cruz v. Visual Percep-
tions, LLC, 311 Conn. 93, 106, 84 A.3d 828 (2014) (‘‘[i]t is elementary that
neither [the Supreme Court] nor the Appellate Court can find facts in the
first instance’’); Positive Impact Corp. v. Indotronix International Corp.,
96 Conn. App. 361, 364, 900 A.2d 535 (existence of contract is question of
fact), cert. denied, 280 Conn. 915, 908 A.2d 538 (2006).