Downing v. Dragone

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CHRISTINE DOWNING v. EMMANUEL
DRAGONE ET AL.
(AC 44416)
Prescott, Cradle and Suarez, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, a used car
dealer, D Co., and one of its owners, E, for breach of contract and unjust
enrichment. The plaintiff claimed that E and G, D Co.’s other owner,
agreed to retain her as an auctioneer for a classic car auction. She
further claimed that, at a meeting with E and G, she agreed to provide
substantial additional services to assist them in running their first such
auction and, in return, they agreed to pay her 1 percent of the gross
proceeds of the auction, with a minimum payment in the amount of
$30,000. The plaintiff prepared a written agreement memorializing the
agreed upon terms, told E that she had done so, and, at his instruction,
left it on his desk. The agreement did not contain signature blocks, but
it included a provision indicating that, unless rejected, it was to become
effective ten days after receipt. Neither E nor G rejected the agreement
or attempted to make any changes to it, and the plaintiff performed the
services required of her thereunder. After D Co. failed to pay the plaintiff
the contracted amount, she initiated the underlying action. At trial, E
testified that the plaintiff was hired only to call the auction in exchange
for a fee of $2500 plus expenses and claimed that he did not find the
written agreement on his desk until several months after the auction
was held. The trial court rendered judgment for the plaintiff on her
breach of contract claim and for the defendants on the claim of unjust
enrichment. On the defendants’ appeal, this court reversed in part the
judgment of the trial court and remanded the case for a new trial solely
on the plaintiff’s breach of contract claim. On remand, following a bench
trial, the trial court rendered judgment for the plaintiff, and D Co.
appealed to this court. Held:
1. The trial court’s finding that the written agreement was an enforceable
contract was not improper:
a. The trial court properly found that D Co. assented to the written
agreement by accepting the plaintiff’s services thereunder and by failing
to object to its terms: the trial court credited the plaintiff’s testimony
that she discussed with G and E the services that she would perform
for the auction, that they agreed her fee would be 1 percent of the gross
auction proceeds, with a minimum payment of $30,000, and that she
delivered to E a copy of the agreement setting forth those terms; more-
over, the trial court found that neither E nor G ever rejected the agree-
ment or attempted to make any changes to it and that they instead
accepted the plaintiff’s services as outlined in the agreement; further-
more, contrary to D Co.’s arguments, the trial court’s findings did not
depend on whether the parties discussed the specific terms of the agree-
ment but, rather, on the parties’ conduct after the plaintiff delivered the
agreement, as evidenced by the plaintiff’s testimony, numerous emails
between the plaintiff and D Co.’s principals and employees, and the
minutes from several weekly meetings held by D Co. in preparation for
the auction; accordingly, there was evidence in the record to support
the trial court’s finding that D Co. had assented to the written agreement.
b. The doctrine of judicial estoppel was inapplicable to D Co.’s claim
that the trial court should not have credited the plaintiff’s allegedly
perjurious testimony: although the plaintiff’s responses to the trial court’s
questioning were equivocal on broad questions, this court disagreed with
D Co.’s characterization of her testimony; moreover, D Co. alerted the
trial court to the alleged inconsistencies, and, despite this, the trial
court credited the plaintiff’s testimony that the parties had agreed to
the essential terms of the contract and that the plaintiff had memorialized
those terms in the written agreement that she delivered to E, and this
court declined to second-guess those credibility determinations.
c. This court declined to review D Co.’s claim that the written agreement
contained terms that were too ambiguous to meet the certainty require-
ments of an enforceable contract because D Co. failed to raise such
claim before the trial court: on appeal, D Co. claimed that the term
‘‘gross auction proceeds’’ as used in the agreement was ambiguous and
that expert testimony was necessary for the court to resolve the ambigu-
ity, however, although D Co.’s counsel had questioned the plaintiff at
trial regarding her interpretation of the term, D Co. neither requested
that the trial court make a determination as to whether the term was
ambiguous nor advanced an alternative interpretation of the term and,
instead, merely denied that it had agreed to that term in any sense.
d. D Co. could not prevail on its claim that the trial court’s finding
that the plaintiff testified that she told E she had prepared the written
agreement was a gross mischaracterization of the plaintiff’s testimony
and was clearly erroneous: the trial court’s finding was supported by
evidence in the record, namely, the plaintiff’s testimony and the rational
inferences drawn therefrom; moreover, that finding did not depend on
whether the plaintiff used the word ‘‘agreement’’ to describe the docu-
ment that she delivered to E but, rather, on her testimony that she
delivered the document to E and told him that it reflected the parties’
agreement.
e. Contrary to D Co.’s claim, the trial court did not improperly shift the
burden of proof to D Co. to prove that it had not assented to the written
agreement but, rather, properly applied the law: although D Co. purported
to challenge the burden of proof applied by the trial court, its claim
effectively challenged the trial court’s factual findings and credibility
determinations, and the evidence presented was sufficient to support
the court’s finding that D Co. had assented to the agreement.
f. D Co. could not prevail on its claim that, because the parties attached
different meanings to the plaintiff’s actions, there was a legal misunder-
standing that precluded enforcement of the written agreement: the trial
court found that D Co. had assented to the agreement on the basis of
findings that this court held were supported by evidence in the record;
moreover, the trial court determined that the plaintiff’s version of the
events was more credible than D Co.’s version, and this court would not
second-guess such credibility determination.
2. D Co. could not prevail on its claim that the trial court improperly admitted
hearsay evidence on the issue of damages: to the extent that D Co.
claimed that the trial court improperly admitted exhibit 57, a copy of
the auction results as reported on the website that was used to hold
the auction online, as inadmissible hearsay, this court declined to review
the claim because it was not properly briefed and because D Co. failed
to object to the admission of the exhibit on that ground at trial; moreover,
the plaintiff’s testimony with respect to exhibit 57 constituted a sufficient
prima facie showing, pursuant to the applicable Connecticut rule of
evidence (§ 9-1 (a)), to overcome D Co.’s challenge to its authenticity;
furthermore, even if this court assumed, without deciding, that the
admission of exhibit 5, a table prepared by the plaintiff that listed the
cars sold at the auction and the prices for which they sold, was improper,
that evidentiary ruling was harmless because D Co. failed to demonstrate
that the exhibit’s admission affected the result of the trial.
Argued February 10—officially released November 1, 2022
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 in part for the
plaintiff, from which the defendants appealed to this
court, DiPentima, C. J., and Lavine and Pellegrino,
Js., which reversed in part the judgment and remanded
the case for a new trial on the plaintiff’s breach of
contract claim; thereafter, the case was transferred to
the judicial district of Ansonia-Milford; subsequently,
the matter was tried to the court, Hon. Arthur A. Hiller,
judge trial referee; judgment for the plaintiff, from
which the defendant Dragone Classic Motorcars, Inc.,
appealed to this court. Affirmed.
Edward T. Murnane, Jr., for the appellant (defendant
Dragone Classic Motorcars, Inc.).
Jeffrey Hellman, for the appellee (plaintiff).
Opinion
SUAREZ, J. In this breach of contract action, the
defendant Dragone Classic Motorcars, Inc., appeals
from the judgment of the trial court, rendered after a
court trial, in favor of the plaintiff, Christine Downing.1
On appeal, the defendant claims that the court improp-
erly (1) found that a written contract existed between
the parties and (2) admitted ‘‘hearsay evidence’’ on the
issue of damages. We affirm the judgment of the trial
court.
The following facts, as found by the court, and proce-
dural history are relevant to the defendant’s claims on
appeal. ‘‘The plaintiff . . . is an auctioneer who has
been engaged in the auction business since 2003. During
the course of her work as an auctioneer, the plaintiff
regularly encountered George Dragone (George), one
of the two co-owners of the defendant . . . .
‘‘In the summer of 2011, at George’s request, the plain-
tiff met with [George and Emanuel Dragone, the other
co-owner of the defendant] at [the defendant’s] West-
port, Connecticut showroom to discuss the possibility
of a classic automobile auction.
‘‘In early 2012, the plaintiff received an email from
[Emanuel] stating that [the defendant] planned to hold
two auctions in 2012 and wished to retain the plaintiff
as its auctioneer. The plaintiff, [Emanuel], and George
met on January 26, 2012, to discuss the planning of a
May, 2012 auction. At this meeting, George and [Eman-
uel] agreed to retain the plaintiff to be the auctioneer
for [the defendant’s] first on-site classic car auction.
The parties agreed on the tasks that the plaintiff would
perform. Because this was [the defendant’s] first auc-
tion, the plaintiff’s work would require her to do every-
thing . . . [including] branding, creating an on-line
presence and help[ing] [to] mold [the defendant] into
more of an upper echelon type of name and away from a
used car, previously owned car dealership. Additionally,
the parties agreed that the plaintiff would be paid 1
percent of the gross proceeds of the auction with a
minimum [payment] of $30,000. Before leaving the
meeting on January 26, 2012, the parties also agreed
that the plaintiff would prepare a written agreement to
memorialize the agreed upon terms.
‘‘The plaintiff prepared an agreement, which provides
that the plaintiff is to receive 1 percent of the gross
auction proceeds, plus expenses, as compensation for
her services, with a minimum [payment in the amount]
of $30,000.2 The plaintiff brought the agreement with
her to the next meeting with George and [Emanuel]
on February 2, 2012. The plaintiff made notes of the
February 2, 2012 [meeting] immediately after she left
and got into her car. . . .
‘‘At the meeting with George and [Emanuel] at their
uel] the agreement describing the terms of her engage-
ment as had been discussed. [Emanuel] told her to leave
the agreement on his desk. The plaintiff did so. During
the ensuing months leading up to the auction, the plain-
tiff performed the tasks that the agreement required
her to do.3
‘‘[Emanuel] admits that he found the agreement on
his desk, although he claimed to have found and read
it months after the auction. He also claims that the
plaintiff’s only responsibility was to conduct the auc-
tion. These claims are not credible. From the meeting
on February 2, 2012, and continuing thereafter, up to
and through the date of the auction, the defendant
observed and permitted all of the plaintiff’s efforts to
prepare for and accomplish this auction.
‘‘Over the next several months after the February 2,
2012 meeting, the plaintiff attended numerous meetings
to help plan for the auction. Also, as the auction
approached, the plaintiff spent more and more time
working on the auction, including a trip to Atlantic City,
New Jersey, to watch a car auction and working at
[the defendant’s] reception desk. Overall, the plaintiff
worked some hundreds of hours in connection with
the auction, advised [the defendant] on the technology
required for the auction, established Auction Flex soft-
ware on [the defendant’s] computers, revised [the
defendant’s] written history for brochures, and helped
prepare advertising and marketing materials, revise the
auction documents, [and] establish the technical and
physical set up for the auction, thereby accomplishing
and performing [her] obligations [pursuant to] the
agreement. The auction was held on May 19, 2012, and
received in excess of $4 milllion in gross receipts. In
connection with the auction, the plaintiff incurred
expenses of $1340.83.’’ (Footnotes added; footnote
omitted.)
After the defendant failed to pay her contractual fee,
the plaintiff, as a self-represented party, initiated the
underlying action on June 6, 2013.4 In the operative two
count complaint, she asserted breach of contract and
unjust enrichment claims against the defendant. After
a court trial, the court, Lee, J., rendered judgment for
the plaintiff on the breach of contract count and for
the defendant on the unjust enrichment count.5 The
defendant appealed, claiming that the court based its
legal conclusions on a clearly erroneous factual finding.
See Downing v. Dragone, 184 Conn. App. 565, 570–71,
195 A.3d 699 (2018).
On appeal, this court agreed with the defendant, hold-
ing that the court’s conclusion that the defendant
breached the parties’ contract was based on a clearly
erroneous factual finding. Id., 574–75. Accordingly, this
court reversed in part the judgment of the trial court
and remanded the case for a new trial on the plaintiff’s
breach of contract claim only. Id., 575.
On remand, the case was tried to the court, Hon.
Arthur A. Hiller, judge trial referee. After the plaintiff
rested her case, the defendant moved to dismiss the
action pursuant to Practice Book § 15-8 for failure to
make out a prima facie case. After hearing argument
on the issue, the court issued an order denying the
defendant’s motion. The court explained that ‘‘the par-
ties may be bound by an unsigned contract where
[assent] is otherwise indicated. Here, the testimony
from the plaintiff’s witnesses, if believed, as required
by law, is sufficient to indicate the evidence of [assent].’’
The trial proceeded thereafter, concluding on Janu-
ary 29, 2020, and the parties filed posttrial briefs. On
October 20, 2020, the court issued its memorandum of
decision, rendering judgment for the plaintiff. The court
found ‘‘that there was a written contract between the
plaintiff and the defendant and that the defendant
breached the contract when it failed to pay the plaintiff
for her services.’’ The court awarded the plaintiff dam-
ages and interest in the amount of $100,570.54, which
included $41,673.20 in damages pursuant to the con-
tract, representing 1 percent of the ‘‘gross auction pro-
ceeds’’; $34,727 in prejudgment interest at a rate of 10
percent per annum; and $24,170.34 in offer of compro-
mise interest at a rate of 8 percent per annum. The
defendant filed a motion to reargue, which the court
denied without comment. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant claims that the court improperly found
that the unsigned written agreement drafted by the
plaintiff was an enforceable written contract. We dis-
agree.
In its memorandum of decision, the court reasoned:
‘‘[T]he plaintiff testified that on January 26, 2012, the
plaintiff met with George and [Emanuel], and they dis-
cussed the plaintiff’s services that she was to perform
and that her compensation would include 1 percent of
the gross proceeds from the auction with a minimum
payment of $30,000. The plaintiff then prepared a writ-
ten agreement, which was admitted into evidence as
plaintiff’s exhibit 1. The written agreement is dated
February 2, 2012, and provides that it becomes effective
unless rejected within ten days. The agreement also
provides that: ‘If you want to make any amendments
or additions to this agreement, please notify us within
10 days of your desire to do so.’ The plaintiff testified
that at the next meeting between the plaintiff, [Eman-
uel], and George, the plaintiff brought the written agree-
ment, told [Emanuel] that she prepared an agreement,
held it up to show him, and then was told to place it
on his desk. The plaintiff also testified that everything
that was in the agreement was discussed with George
and [Emanuel] prior to the writing of the agreement.
Neither [Emanuel] nor George ever rejected the agree-
ment or attempted to make any changes or additions.
Instead, they accepted the plaintiff’s services to plan
the auction in accordance with exhibit 1 and did not
pay her.’’
Significantly, although Emanuel testified that the
plaintiff’s only responsibility was to call the auction
and that he did not find the agreement on his desk
until several months after the auction, the court found
Emanuel’s testimony was ‘‘not credible.’’ The court
noted that, beginning with ‘‘the meeting on February 2,
2012, and continuing thereafter, up to and through the
date of the auction, the defendant observed and permit-
ted all of the plaintiff’s efforts to prepare for and accom-
plish [the] auction.’’ Accordingly, the court found ‘‘that
[Emanuel] and George knew that the plaintiff was com-
pleting significant tasks related to the auction and that
she expected to be paid for her services pursuant to
the agreement.’’ On the basis of those findings, the court
rendered judgment for the plaintiff.
The defendant’s claim that the court incorrectly
found that the written agreement was an enforceable
contract consists of various subclaims. Specifically, the
defendant asserts: (1) ‘‘there was no evidence presented
of a meeting of the minds or of mutual assent to the
alleged contract’s terms’’; (2) ‘‘[t]o the extent that the
trial court has credited the plaintiff’s obviously perjuri-
ous testimony, judicial estoppel should operate to pre-
vent this’’; (3) ‘‘[t]he alleged contract document con-
tains terms that are too ambiguous to meet the certainty
requirements of an enforceable contract’’; (4) ‘‘[t]he
court’s finding that the plaintiff testified that she ‘told
[Emanuel] that she prepared an agreement’ is a gross
mischaracterization of the plaintiff’s actual testimony
and clearly erroneous’’; (5) the court improperly
‘‘shifted the burden of proof to the defendant to prove
that the ‘written contract’ had not been assented to
by the defendant’’; and (6) because ‘‘the parties have
attached different meanings to the plaintiff’s actions,
there has been a legal misunderstanding that precludes
enforcement of the document at issue.’’ We address
each subclaim in turn.
We begin by setting forth the applicable standard of
review. ‘‘Whether a contract exists is a question of fact
for the court to determine.’’ (Internal quotation marks
omitted.) T & M Building Co. v. Hastings, 194 Conn.
App. 532, 538, 221 A.3d 857 (2019), cert. denied, 334
Conn. 926, 224 A.3d 162 (2020).
‘‘In a case tried before the court, the trial judge is
the sole arbiter of the credibility of witnesses and the
weight to be afforded to specific testimony. . . .
[When] the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out
in the memorandum of decision are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, those facts are clearly
erroneous. . . . In other words, to the extent that the
trial court has made findings of fact, our review is lim-
ited to deciding whether those findings were clearly
erroneous. . . . 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. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
Parrott v. Colon, 213 Conn. App. 375, 387, 277 A.3d
821 (2022).
A
The defendant first claims that ‘‘there was no evi-
dence presented of a meeting of the minds or of mutual
assent to the alleged contract’s terms.’’ The plaintiff
responds that the court properly found that the defen-
dant assented to the written agreement by accepting the
plaintiff’s services under the agreement and by failing
to object to its terms. We agree with the plaintiff.
It is axiomatic that ‘‘to form a binding and enforceable
contract, there must exist an offer and an acceptance
based on a mutual understanding by the parties. . . .
The mutual understanding must manifest itself by a
mutual assent between the parties. . . . In other
words, to prove the formation of an enforceable agree-
ment, a plaintiff must establish the existence of a mutual
assent, or a meeting of the minds . . . .
‘‘The parties’ intentions manifested by their acts and
words are essential to the court’s determination of
whether a contract was entered into and what its terms
were. . . . Whether the parties intended to be bound
without signing a formal written document is an infer-
ence of fact [to be made by] the trial court . . . .
[M]utual assent is to be judged only by overt acts and
words rather than by the hidden, subjective or secret
intention of the parties.’’ (Citations omitted; internal
quotation marks omitted.) Computer Reporting Ser-
vice, LLC v. Lovejoy & Associates, LLC, 167 Conn. App.
36, 44–45, 145 A.3d 266 (2016).
Indeed, ‘‘[a] manifestation of mutual assent may be
made even though neither offer nor acceptance can be
identified and even though the moment of formation
cannot be determined. . . . Parties are bound to the
terms of a contract even though it is not signed if their
assent is otherwise indicated.’’ (Citation omitted; inter-
nal quotation marks omitted.) Original Grasso Con-
struction Co. v. Shepherd, 70 Conn. App. 404, 411, 799
A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065(2002).
In the present case, the court found that the defen-
dant manifested assent to the unsigned written agree-
ment by accepting the plaintiff’s services under the
agreement without objecting to its terms.6 See, e.g.,
Ullman, Perlmutter & Sklaver v. Byers, 96 Conn. App.
501, 506, 900 A.2d 602 (2006) (‘‘[o]ne enjoying rights is
estopped from repudiating dependent obligations
which he has assumed; parties cannot accept benefits
under a contract fairly made and at the same time ques-
tion its validity’’ (internal quotation marks omitted)).
In so finding, the court credited the plaintiff’s testimony
that she discussed the services she would perform for
the auction with George and Emanuel on January 26,
2012, that they agreed that her fee would be 1 percent
of the gross auction proceeds, with a minimum payment
of $30,000, and that she delivered to Emanuel a copy
of the written agreement setting forth those terms on
February 2, 2012. The court found that neither Emanuel
nor George ever rejected the agreement nor attempted
to make any changes to it and that, instead, they
accepted the plaintiff’s services as outlined in the agree-
ment. Consequently, the court found that the defendant,
acting through its principals, had assented to the written
agreement.
The defendant nevertheless argues that, because the
plaintiff’s testimony establishes that she did not discuss
the meaning of ‘‘gross auction proceeds’’ or a $10,000
payment that was due before the scheduled auction,
the plaintiff failed to establish a ‘‘meeting of the minds
necessary to form an enforceable contract.’’7
The problem with the defendant’s argument is that
the court found that the defendant assented to the writ-
ten agreement by accepting the plaintiff’s services as
set forth in that agreement while failing to object to
its terms. Indeed, the court found that, beginning on
February 2, 2012, and ‘‘continuing thereafter, up to and
through the date of the auction, the defendant observed
and permitted all of the plaintiff’s efforts to prepare for
and accomplish [the] auction.’’ Accordingly, the court’s
finding does not depend on whether every word in the
agreement was discussed by the parties but, rather, on
the parties’ conduct after the plaintiff delivered the
written agreement to Emanuel on February 2, 2012. The
court’s finding in this regard is supported not only by
the plaintiff’s testimony, but also by the documentary
evidence, which included numerous emails between the
plaintiff, the defendant’s principals, and the defendant’s
employees, as well as the minutes from several weekly
meetings held by the defendant in preparation for the
auction. Thus, there is evidence in the record to support
the court’s finding that the defendant assented to the
written agreement. Consequently, because the court
found, on the basis of the parties’ conduct after Febru-
ary 2, 2012, that the defendant assented to the written
agreement and because that finding is supported by the
evidence in the record, the defendant’s claim fails.
B
The defendant next claims that, ‘‘[t]o the extent that
the trial court has credited the plaintiff’s obviously per-
jurious testimony, judicial estoppel should operate to
prevent this.’’ We disagree with the defendant’s charac-
terization of the plaintiff’s testimony and conclude that
the doctrine of judicial estoppel is inapplicable.
It is well established that ‘‘[t]he function of the appel-
late court is to review, and not retry, the proceedings
of the trial court.’’ (Internal quotation marks omitted.)
Housing Authority v. Stevens, 209 Conn. App. 569, 580–
81, 267 A.3d 927, cert. denied, 343 Conn. 907, 273 A.3d
234 (2022). As this court has explained, ‘‘[c]redibility
must be assessed . . . not by reading the cold printed
record, but by observing firsthand the witness’ conduct,
demeanor and attitude. . . . An appellate court must
defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an oppor-
tunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary
inferences therefrom.’’ (Internal quotation marks omit-
ted.) Bayview Loan Servicing, LLC v. Gallant, 209
Conn. App. 185, 192–93, 268 A.3d 119 (2021).
The defendant directs this court’s attention to the
following exchange between the court and the plaintiff:
‘‘Q. So let me ask you a question while we are here:
Did you discuss every one of the things [in the written
agreement] with [Emanuel] before you gave him this
document?
‘‘A. I did not take detailed notes.
‘‘Q. Did you tell him every one of these provisions
before you gave him that document?
‘‘A. Yes. We discussed in general what my responsibil-
ity is with the—
‘‘Q. No, this is not in general. These are specifics,
correct?
‘‘A. Yes and no. For example—
‘‘Q. Are there any specifics in here that—specifics as
to what you would do? There are, right? There are
specific items of what you’re going to do, correct?
‘‘A. Yes, there are, Your Honor.
‘‘Q. And did you discuss each one of those with
[Emanuel] before you handed him this contract?
‘‘A. To the best of my recollection, yes. We did go
over—
‘‘Q. Every one of these?
‘‘A. —how we would be preparing for the auction.
‘‘Q. Every one of these items?
‘‘A. To the best of my recollection, yes.’’
The defendant argues that ‘‘[t]his testimony was false
and contrary to the plaintiff’s testimony from the first
trial. Under cross-examination, the plaintiff admitted
that she had not discussed all the terms with the defen-
dant’s principals, or anyone else.’’ The defendant claims
that the following excerpt of the plaintiff’s testimony
from the present trial, which includes references to
excerpts of her testimony from the first trial, contra-
dicts her responses to the court’s questions:
‘‘[The Defendant’s Counsel]: You said before that you
didn’t have a discussion of what gross auction pro-
ceeds meant?
‘‘[The Plaintiff]: That is correct.
‘‘[The Defendant’s Counsel]: And do you recall this
morning, when His Honor Judge Hiller asked you if you
had discussed all of the terms in the exhibit 1 document
with [Emanuel] and George, and you said you had?
‘‘[The Plaintiff]: I said I believe I had, yes. I do recall.
‘‘[The Defendant’s Counsel]: And as you sit here
today, do you remember when you testified in Stamford
at the earlier trial of this matter that, when I asked you
these kinds of questions, you admitted that you hadn’t
discussed many of the terms in the exhibit 1 document
with George or [Emanuel] Dragone?
‘‘[The Plaintiff]: I don’t. I don’t recall specifically.
‘‘[The Defendant’s Counsel]: If I showed you a docu-
ment, you think it might refresh your recollection about
your testimony then?
‘‘[The Plaintiff]: I don’t know, because it depends on
the document. But I would be happy to look. . . .
‘‘[The Defendant’s Counsel]: Take a look at that docu-
ment. Just take a look at that Ms. Downing, and let me
know if that refreshes your memory at all about your
prior testimony?
‘‘[The Plaintiff]: I’m sorry, I’m no longer certain what
the question is. I see where I say the last time I testified
that I don’t recall if we discussed the meaning of gross
auction proceeds, so therefore I don’t think we dis-
cussed every term that’s in the contract. So I think my
testimony is the same.
‘‘[The Defendant’s Counsel]: All right. So, as I men-
tioned, this morning [the court] asked you if you dis-
cussed all the terms that you put into the exhibit 1
document with [Emanuel] and George Dragone before
you prepared it, and you said you believed you had. I
asked you a few minutes ago if you discussed a certain
number of terms, and you said you think you did but
you can’t recall because it’s been seven years. So I said,
why don’t you take a look at this document and see if
it refreshes your memory at all about your prior testi-
mony. . . .
‘‘[The Plaintiff]: Okay.
‘‘[The Defendant’s Counsel]: Does it refresh your
memory about your prior testimony? . . .
‘‘[The Plaintiff]: Yes, because I’m able to read it.
‘‘[The Defendant’s Counsel]: And if you turn to the
second page of that document, starting on line 13 . . . .
[Question:] ‘When you had your meeting with [Emanuel]
and George discussing your compensation, you dis-
cussed all the terms that you ended up incorporating
into this document?’ Answer: ‘I don’t know that we
discussed all of the terms; we discussed what [our]
plan and vision was for the auction.’ Do you recall that
testimony?
‘‘[The Plaintiff]: I must have said it. But do I recall
specifically verbatim, no. But I certainly trust that these
are my words.
‘‘[The Defendant’s Counsel]: Do you have a different
recollection of the meeting with [Emanuel] and George
Dragone now than you did back at the [first trial]?
‘‘[The Plaintiff]: No. I probably have less of one, since
it’s been another three years. I think I subconsciously
am wavering in my head between terms and definitions.
Because the terms of the arrangement were gross pro-
ceeds, what’s going to be sold, who’s responsible for
what. In my head, I’m thinking definition is what we
didn’t discuss the—we didn’t define the words of all of
the terms, and I think that may be why I sound like I
have a discrepancy. Because I did not see a need to
define gross auction proceeds.
‘‘The Court: Well, that’s not all of the words. I asked
you all of the terms in the contract.
‘‘[The Plaintiff]: Right, and I—
‘‘The Court: That means [two] pages of terms. I asked
you if you discussed each of them with [George and
Emanuel], and you said yes.
‘‘[The Plaintiff]: And I recall the same.
‘‘[The Defendant’s Counsel]: Can I ask you to turn
to, I think it’s the fourth page of what you have there;
it starts [on] page 90 at the top. Do you see where I
asked you a question, line 6: ‘Did you discuss that with
them in their meeting,’ and I’m referring to the minimum
$10,000? Answer: ‘We verbally talked on January 26, I
should know that date by now.’ ‘Or thereabouts is the
question.’ Answer: ‘That there would be one payment
before the auction.’ [Question:] ‘Okay, and that payment
would be in the amount of $10,000?’; that’s my question.
And your answer was: ‘I don’t recall if I specifically
said $10,000.’ Lines 13 and 14, do you see that?
‘‘[The Plaintiff]: I do see it.
‘‘[The Defendant’s Counsel]: So, as you sit here today,
you remember whether you specifically discussed a
$10,000 minimum payment with George or [Emanuel]
Dragone on January 26, 2012?
‘‘[The Plaintiff]: I cannot recall if I said $10,000 or we
said the fail stop, or safe gap method. I no longer recall
those specifics.’’
First, we read the plaintiff’s testimony in response
to the court’s questioning as equivocal on the broad
questions initially posed by the court and definitive only
as to the court’s question about ‘‘specifics as to what
[the plaintiff] would do’’ pursuant to the agreement.
More importantly, however, the defendant alerted the
trial court to these alleged inconsistencies in the plain-
tiff’s testimony, both during its cross-examination and
in its posttrial brief, and the court nevertheless credited
the plaintiff’s testimony that the parties agreed to the
essential terms of the contract and that the plaintiff
memorialized those terms in the written agreement that
she delivered to the defendant. Any alleged inconsisten-
cies were fodder for the court’s consideration. As the
trier of fact, the court was ‘‘free to accept or reject, in
whole or in part, the testimony offered by either party.’’
(Internal quotation marks omitted.) Benjamin v. Nor-
walk, 170 Conn. App. 1, 25, 153 A.3d 669 (2016).
Accordingly, the doctrine of judicial estoppel simply
is not implicated in the present case, and we decline
to second-guess the court’s credibility determination.
See Bayview Loan Servicing, LLC v. Gallant, supra,
209 Conn. App. 192–93.
C
The defendant next claims that the written agreement
‘‘contains terms that are too ambiguous to meet the
certainty requirements of an enforceable contract.’’
More specifically, the defendant claims that the term
‘‘ ‘gross auction proceeds’ ’’ is ambiguous and ‘‘is not a
term so common and well-defined as to be within the
common knowledge of judges or juries.’’ Therefore,
according to the defendant, expert testimony was
required to establish the meaning of ‘‘ ‘gross auction
proceeds.’ ’’ The plaintiff responds that the defendant
waived its claim regarding this alleged ambiguity by
failing to raise it before the trial court. In its reply brief,
the defendant offered no response regarding whether
this claim was preserved. We conclude that the defen-
dant did not raise this claim before the trial court and,
therefore, we decline to review it.
‘‘It is well established that an appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level. . . . The requirement that [a]
claim be raised distinctly means that it must be so stated
as to bring to the attention of the court the precise
matter on which its decision is being asked. . . . The
reason for the rule is obvious: to permit a party to raise
a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing
party to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Canner v.
Governor’s Ridge Assn., Inc., 210 Conn. App. 632, 653–
54, 270 A.3d 694 (2022).
In the present case, although the defendant’s counsel
suggested myriad possible meanings of ‘‘gross auction
proceeds’’ while cross-examining the plaintiff, the
defendant neither requested that the court make a deter-
mination as to whether the term ‘‘gross auction pro-
ceeds’’ is ambiguous, nor advanced an alternative inter-
pretation of it. Instead, the defendant denied agreeing
to that term in any sense. In its posttrial brief, the
defendant explained that ‘‘Emanuel and George . . .
deny that the parties’ relationship was governed by
exhibit 1, deny that it accurately reflected their under-
standing of the terms of the plaintiff’s engagement, and
deny that exhibit 1 was ever even made known to them;
both claim not to have ever seen the exhibit 1 document
until many months after the plaintiff’s engagement was
already concluded; and both claim that the plaintiff was
engaged at a flat rate of $2500 plus expenses to serve
as the auctioneer.’’ (Emphasis omitted.) As to the defini-
tion of ‘‘gross auction proceeds,’’ the defendant con-
tended that the plaintiff’s testimony that she did not
recall defining that term with Emanuel and George
undermined her testimony that the defendant had
assented to the written agreement.
On appeal, however, the defendant claims that the
term ‘‘gross auction proceeds’’ is ambiguous and that
expert testimony was necessary for the court to resolve
the ambiguity. It argues: ‘‘One possible explanation for
the trial court’s imposition of the exhibit 1 compensa-
tion provision is that the . . . court simply accepted as
fact the plaintiff’s passing assertion that ‘gross auction
proceeds’ is an industry term. This is improper.’’
(Emphasis added.) The reason that the defendant is left
to speculate as to a possible explanation for the court’s
construction of the compensation provision is that the
defendant never raised this claim before the trial court.
Consequently, the court never addressed it.
‘‘Our role is not to guess at possibilities . . . but
to review claims based on a complete factual record
developed by a trial court.’’ (Internal quotation marks
omitted.) State v. Brunetti, 279 Conn. 39, 63, 901 A.2d
1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328,
167 L. Ed. 2d 85 (2007). ‘‘This court also has explained
that [a]n appellate tribunal cannot render a decision
without first fully understanding the disposition being
appealed. . . . Without the necessary factual and legal
conclusions . . . any decision made by us respecting
[the claims raised on appeal] would be entirely specula-
tive.’’ (Internal quotation marks omitted.) R & P Realty
Co. v. Peerless Indemnity Ins. Co., 193 Conn. App. 374,
379, 219 A.3d 429 (2019). Consequently, because the
defendant never raised its claim before the trial court,
we decline to review it.
D
Next, the defendant claims that ‘‘[t]he court’s finding
that the plaintiff testified that she ‘told [Emanuel] that
she prepared an agreement’ is a gross mischaracteriza-
tion of the plaintiff’s actual testimony and clearly erro-
neous.’’ The defendant argues: ‘‘There was no testimony
from the plaintiff that she ever—at any point in time—
told anyone from the defendant company that she had
prepared ‘an agreement.’ [Because] this testimony does
not exist in the record, the court’s reliance on it is a
mistake.’’ We are not persuaded.
In its decision, the court stated that the plaintiff testi-
fied that, on February 2, 2012, ‘‘the plaintiff brought the
written agreement, told [Emanuel] that she prepared
an agreement, held it up to show him, and then was told
to place it on his desk.’’ At trial, the plaintiff testified:
‘‘[The Plaintiff’s Counsel]: . . . Where did you meet
on February 2?
‘‘[The Plaintiff]: At the Westport office . . . .
‘‘[The Plaintiff’s Counsel]: . . . Did you present
exhibit 1 to anyone at [the meeting]?
‘‘[The Plaintiff]: I did. I mentioned to [Emanuel] that
I had written down what we had discussed, and he said
that I should put it on his desk in his office.
‘‘[The Plaintiff’s Counsel]: And did you do that?
‘‘[The Plaintiff]: I did. . . .
‘‘[The Defendant’s Counsel]: And you say you pre-
pared this for that meeting and [Emanuel] told you to
put it on his desk. Did you hand it to him? Did he take
it into his hands?
‘‘[The Plaintiff]: I had tried, and he said to put it on
his desk.
‘‘[The Defendant’s Counsel]: Okay. So, at the time,
did you hold it up in front of him so he could read it?
‘‘[The Plaintiff]: I believe, instead of how you dis-
played it, I think I said, ‘Here is what I created. I wrote
down what we discussed,’ and he said, ‘Put it on my
desk in my office.’ . . .
‘‘[The Defendant’s Counsel]: . . . So it’s your testi-
mony that from about four feet away, you held up this
note and said: ‘[Emanuel], I wrote out what we dis-
cussed’; and he said, ‘Put it on my desk?’
‘‘[The Plaintiff]: That is correct.’’
The plaintiff’s testimony and the rational inferences
drawn therefrom unquestionably support the court’s
statement, and we discern no error in the court’s para-
phrasing of the plaintiff’s testimony. Simply put, the
defendant ascribes undue significance to the court’s
choice of words and ignores the significance of the
court’s finding that the plaintiff delivered a copy of the
written agreement to Emanuel on February 2, 2012.
This finding did not depend on whether the plaintiff
used the word ‘‘agreement’’ to describe the document
she delivered to Emanuel but, rather, on her testimony
that she delivered the document to him and communi-
cated that the document reflected what they had dis-
cussed on January 26, 2012, i.e., the parties’ agreement.
Accordingly, the court’s findings are supported by evi-
dence in the record.
E
The defendant next claims that the court improperly
‘‘shifted the burden of proof to the defendant to prove
that the ‘written contract’ had not been assented to by
the defendant.’’ We are not persuaded.
We begin with the applicable standard of review.
‘‘When a party contests the burden of proof applied by
the trial court, the standard of review is de novo because
the matter is a question of law.’’ Cadle Co. v. D’Addario,
268 Conn. 441, 455, 844 A.2d 836 (2004). ‘‘It is well
settled that the party seeking to establish the existence
of an enforceable contract bears the burden of proving
a meeting of the minds between the parties.’’ LeBlanc
v. New England Raceway, LLC, 116 Conn. App. 267,
271, 976 A.2d 750 (2009).
Although purporting to challenge the burden of proof
applied by the trial court, the defendant’s claim effec-
tively challenges the court’s factual findings and credi-
bility determinations. The defendant argues that ‘‘the
plaintiff has failed to provide the court with credible
evidence to establish the formation of a written contract
between the parties. She chose to call herself, the defen-
dant’s principals, and offer the transcript testimony of
a former employee to establish her case. She produced
multiple documents that have nothing at all to do with
the issue of the terms of her compensation. There is
not one person other than the plaintiff herself who had
any knowledge of the [unsigned written agreement].
. . . Based on the total dearth of evidence presented
by the plaintiff, it is clear that the trial court . . . imper-
missibly shifted the burden from requiring the plaintiff
to prove a meeting of the minds to requiring the defen-
dant to disprove a meeting of the minds.’’ (Citation
omitted.) In response, the plaintiff argues that the evi-
dence that she presented at trial ‘‘is sufficient to prove
the existence of a written contract’’ and that ‘‘[t]here
is nothing in the [memorandum of] decision to indicate
that [the court] ever shifted the burden of proof.’’ We
agree with the plaintiff.
As we have already concluded in part I A of this
opinion, the evidence presented to the trial court was
sufficient to support the court’s finding that the defen-
dant assented to the written agreement. Although the
defendant takes issue with the probative force of the
evidence, ‘‘[t]his court will not reweigh the evidence or
resolve questions of credibility . . . . It is within the
province of the [trial court] to draw reasonable and
logical inferences from the facts proven.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Glenn, 30 Conn. App. 783, 791, 622 A.2d 1024 (1993).
Accordingly, we conclude that the court properly
applied the law.
F
Finally, the defendant claims that, because ‘‘the par-
ties have attached different meanings to the plaintiff’s
actions, there has been a legal misunderstanding that
precludes enforcement of the document at issue.’’ It
argues that ‘‘there are no words or acts by the defendant
. . . that indicate assent to the terms of [the written
contract].’’ The defendant further argues that ‘‘the mere
act of the plaintiff carrying out some work with respect
to the auction cannot itself be viewed as evidence of
assent by the defendant to the terms of the [written
contract], since such acts could reasonably be viewed
as work pursuant to the defendant’s understanding of
the terms of the plaintiff’s engagement.’’ We are not
persuaded.
As noted previously in this opinion, ‘‘[w]hether the
parties intended to be bound without signing a formal
written document is an inference of fact [to be made
by] the trial court . . . . [M]utual assent is to be judged
only by overt acts and words rather than by the hidden,
subjective or secret intention of the parties.’’ (Citation
omitted; internal quotation marks omitted.) Computer
Reporting Service, LLC v. Lovejoy & Associates, LLC,
supra, 167 Conn. App. 45. Also, as previously stated in
this opinion, the court found that the defendant had
assented to the written agreement on the basis of its
findings that (1) the parties discussed the terms of the
written agreement, (2) the plaintiff delivered to Eman-
uel a copy of the written agreement, (3) the plaintiff
performed pursuant to that written agreement, and (4)
the co-owners of the defendant observed and permitted
all of the work performed by the plaintiff as set forth
in the written agreement. As we held in part I A of this
opinion, these findings are supported by the evidence
in the record.
In support of its claim to the contrary, the defendant
again characterizes the evidence presented as not ‘‘cred-
ible’’ and posits that the parties’ conduct after February
2, 2012, is consistent with the defendant’s understand-
ing of the arrangement. The court, however, found oth-
erwise. The parties offered two very different accounts
of the underlying events, and the court determined that
the plaintiff’s version of events was more credible than
the defendant’s version. Specifically, the court found
that the defendant’s claim that it agreed to pay the
plaintiff $2500 plus expenses to call the auction was
not credible. See, e.g., Computer Reporting Service,
LLC v. Lovejoy & Associates, LLC, supra, 167 Conn.
App. 46–47 (‘‘[t]he existence of a hidden or subjective
intent on the part of one party to a contract does not
render a finding of mutual assent clearly erroneous’’).
Again, we reiterate what has become a tired refrain:
‘‘Because it is the sole province of the trier of fact to
assess the credibility of witnesses, it is not our role to
second-guess such credibility determinations.’’ State v.
Franklin, 115 Conn. App. 290, 292, 972 A.2d 741, cert.
denied, 293 Conn. 929, 980 A.2d 915 (2009). In sum,
we conclude that the court’s finding that the written
agreement was an enforceable contract is supported
by the evidence in the record.
II
Last, the defendant claims that the court improperly
admitted ‘‘hearsay evidence’’ on the issue of damages.
Specifically, the defendant claims that exhibits 5 and
57 ‘‘are inadmissible hearsay . . . .’’ The following
additional facts are relevant to the defendant’s claim.
At trial, the plaintiff offered exhibit 5, a table prepared
by the plaintiff that listed the cars sold at the auction
and the prices for which they sold. The plaintiff testified
that she obtained that information from the defendant’s
website. The defendant objected, claiming that the doc-
ument was inadmissible hearsay. When the court
inquired whether the information constituted a state-
ment of a party opponent, the defendant’s counsel ques-
tioned whether the information was accurate or could
be identified as coming from the defendant’s website.
In response, the plaintiff’s counsel stated that he would
authenticate the document through the testimony of
Emanuel. After Emanuel testified that the auction
results had been reported on the defendant’s website,
the court admitted exhibit 5 as a full exhibit.
The plaintiff also offered exhibit 57, a copy of the
auction results as reported on the website www.liveauc-
tioneers.com. The plaintiff testified that the website is
‘‘a platform to hold an auction concurrently on the
Internet, so your bidding is [open] to anybody in the
world while the auction is physically happening at a
location.’’ After the plaintiff testified that the results of
the auction are reported on the website after each item
is sold and that she had printed the document from the
website on September 25, 2019, the plaintiff’s counsel
offered the document as a full exhibit. The defendant’s
counsel then interjected and proceeded to question the
plaintiff:
‘‘[The Defendant’s Counsel]: I would like to examine
her, Your Honor.
‘‘The Court: You bet.
‘‘[The Defendant’s Counsel]: Ms. Downing, can you
look at the—when you print[ed] that document off the
Internet . . . last night, you were at a certain website?
‘‘[The Plaintiff]: Liveauctioneers.com.
‘‘[The Defendant’s Counsel]: Yes or no—
‘‘[The Plaintiff]: Yes.
‘‘[The Defendant’s Counsel]: —you were at a certain
website?
‘‘[The Plaintiff]: Yes.
‘‘[The Defendant’s Counsel]: Okay. And that website,
when you print the document that you have there in
front of you, does it get printed, the website you were
at, on the document?
‘‘[The Plaintiff]: Yes.
‘‘[The Defendant’s Counsel]: Okay. And what is the
web address for that document?
‘‘[The Plaintiff]: www.liveauctioneers.com.
‘‘[The Defendant’s Counsel]: And then there’s a strain
of other information?
‘‘[The Plaintiff]: Yes.
‘‘[The Defendant’s Counsel]: Okay. That’s not Drag-
oneclassicmotorcars.com, or anything like that, is it?
‘‘[The Plaintiff]: This document, no. This document
is from [www.liveauctioneers.com].
‘‘[The Defendant’s Counsel]: Is it your testimony that
[the defendant] controls [www.liveauctioneers.com]?
‘‘[The Plaintiff]: No, of course not.
‘‘[The Defendant’s Counsel]: Okay. Is it your testi-
mony that—well, let me ask you this. For that auction,
who was in charge of putting information—giving infor-
mation to liveauctioneers.com?
‘‘[The Plaintiff]: A woman named Tammy Sikowsky
was hired, because she—a woman named Tammy
Sikowsky.
‘‘[The Defendant’s Counsel]: Okay. Who hired her?
‘‘[The Plaintiff]: I did.
‘‘[The Defendant’s Counsel]: Okay. And are you telling
us that she put that information into [www.liveauction-
eers.com]?
‘‘[The Plaintiff]: Yes.
‘‘[The Defendant’s Counsel]: You’re aware of that?
‘‘[The Plaintiff]: Yes. She did it during the auction on
May 19, 2012.
‘‘[The Defendant’s Counsel]: Okay. You had access
to the liveauctioneers.com service, didn’t you?
‘‘[The Plaintiff]: Anybody does. It’s a free service.
‘‘[The Defendant’s Counsel]: Okay. Anybody can go
in there and put what they think the auction results
were, isn’t that right?
‘‘[The Plaintiff]: No, that’s not what I was saying.
Anybody can buy—you can participate in a Live Auc-
tioneer—in a live auction through [www.liveauctioneers-
.com], but you have to be [registered] with the company
in order to run a live auction.
‘‘[The Defendant’s Counsel]: Okay. But you didn’t
put the information into [www.liveauctioneers.com] as
reported on that website, did you?
‘‘[The Plaintiff]: No, I was calling the auction.
‘‘[The Defendant’s Counsel]: I understand that. The
information that is reproduced in . . . that exhibit, you
didn’t prepare that information and put it on that web-
site?
‘‘[The Plaintiff]: Other than print it last night, no.
‘‘The Court: Now, let me ask a question. The person
you hired to call those numbers in, she was working
for you?
‘‘[The Plaintiff]: She was paid by [the defendant].
‘‘The Court: Paid by [the defendant].
‘‘[The Plaintiff]: She came the day of the auction to
do this.
‘‘The Court: So, she became—she became an agent
of [the defendant] working to put that information in?
‘‘[The Plaintiff]: Yeah. She was hired to be the Live
Auctioneers’ person at the auction.
‘‘The Court: And she was paid by [the defendant]?
‘‘[The Plaintiff]: Yes.
‘‘[The Defendant’s Counsel]: She was paid by [the
defendant], but you picked her, isn’t that right?
‘‘[The Plaintiff]: She is a person that I and other auc-
tioneers throughout Connecticut use when we run a
sale on [www.liveauctioneers.com].
‘‘[The Defendant’s Counsel]: Okay. Let me ask you—
never mind. . . . I object, Your Honor. She—
‘‘The Court: You might as well forget it, because it’s
coming in. . . .
‘‘[The Defendant’s Counsel]: Well, that’s fine.
‘‘The Court: All right.
‘‘[The Defendant’s Counsel]: I mean isn’t it—I just
want to put an objection on the record, Your Honor.
‘‘The Court: Yeah, your objection is heard and over-
ruled, okay. It’s on the record.
‘‘[The Defendant’s Counsel]: Just lack of foundation
is all—
‘‘The Court: You got it.
‘‘[The Defendant’s Counsel]: —I would like to say.
‘‘The Court: You got it. No problem. Okay. Go ahead.
‘‘[The Plaintiff’s Counsel]: Thank you. With that, Your
Honor, the plaintiff rests.
‘‘The Court: All right. Do you have questions for [the
plaintiff]?
‘‘[The Defendant’s Counsel]: I don’t have any ques-
tions for her, Your Honor.
‘‘The Court: Okay. You may step down. We want
[exhibit 57 marked as a full exhibit]. All right. Did you
want to tell me what is important in here that you
offered it for?
‘‘[The Plaintiff’s Counsel]: Your Honor, there was
some discussion about the prices that were listed on
the exhibit 5 and the fact that they . . . include the
buyer’s premium, as opposed to just the hammer price.
These, Your Honor, are just the hammer price.
‘‘The Court: Okay. Hammer price. And have you
added those up?
‘‘[The Plaintiff’s Counsel]: I have not, Your Honor,
but I will.
‘‘The Court: Okay.
‘‘[The Plaintiff’s Counsel]: It also includes the memo-
rabilia, which are not listed on exhibit 5.
‘‘The Court: Gotcha. Okay. Thank you.’’
On appeal, the defendant challenges the admission
of both exhibits 5 and 57. We conclude that the court
properly admitted exhibit 57 into evidence and that,
assuming, without deciding, that the court improperly
admitted exhibit 5 into evidence, the defendant has
failed to demonstrate that the court’s ruling was harm-
ful.
Before considering the court’s ruling as to exhibit
57, we first clarify the defendant’s claim on appeal.
Although the defendant refers to both exhibits 5 and
57 as inadmissible hearsay, its argument on appeal
focuses on authentication. Specifically, the defendant
argues that the ‘‘plaintiff testified that she knows the
third party who put the information on that website,
and named the person, but that person was never pro-
duced by the plaintiff to authenticate the website nor
to explain the source of the information contained
within the printout and/or the origin of the figures
reported as the auction sales. . . . To support the
admission of [exhibit 57], the plaintiff did not produce a
witness from the defendant to authenticate the website.
‘‘Simply put, the plaintiff’s naked submission of infor-
mation from third-party websites without any authen-
tication is contrary to the Code of Evidence.’’ (Citation
omitted; emphasis added.) The defendant then sets
forth two quotations about authentication pursuant to
§ 9-1 (a) of the Connecticut Code of Evidence, before
stating that ‘‘the plaintiff failed to offer evidence to
authenticate the information she claims to have
obtained from the Internet and offered no evidence to
overcome the exhibits’ hearsay nature. Other than these
hearsay exhibits, the plaintiff produced no evidence to
prove the amount of her damages. The trial court’s
rulings allowing these unauthenticated exhibits are
erroneous.’’ (Emphasis added; footnote omitted.)
Because the substance of the defendant’s argument
on appeal focuses on the authentication, or lack thereof,
of exhibit 57, we construe its claim as challenging the
admission of exhibit 57 on the ground that the plaintiff
failed to make an adequate prima facie showing of the
authenticity of the document. Nevertheless, because its
brief is not a model of clarity as to this claim, to the
extent the defendant claims that the court improperly
admitted exhibit 57 because it is inadmissible hearsay,
we conclude that this aspect of the defendant’s claim
is not adequately preserved and decline to review it.
At trial, the defendant’s counsel did not assert hear-
say as a ground for the objection to exhibit 57. Instead,
as previously set forth in this opinion, counsel noted
that he wanted to make his objection for the record
and stated: ‘‘Just lack of foundation is all . . . I would
like to say.’’ It is well established that ‘‘[t]his court is
not bound to consider claims of law not made at the
trial. . . . In order to preserve an evidentiary ruling
for review, trial counsel must object properly. . . . In
objecting to evidence, counsel must properly articulate
the basis of the objection so as to apprise the trial
court of the precise nature of the objection and its
real purpose, in order to form an adequate basis for a
reviewable ruling. . . . Once counsel states the author-
ity and ground of [the] objection, any appeal will be
limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Inter-
nal quotation marks omitted.) State v. Calabrese, 279
Conn. 393, 408 n.18, 902 A.2d 1044 (2006). Consequently,
because the defendant did not object to the admission
of exhibit 57 on the grounds that it is inadmissible
hearsay, we decline to review that claim on appeal.
Having clarified the defendant’s preserved claim, we
now set forth the applicable standard of review and
relevant legal principles. ‘‘To the extent [that] a trial
court’s admission of evidence is based on an interpreta-
tion of the [Connecticut] Code of Evidence, our stan-
dard of review is plenary. For example, whether a chal-
lenged statement properly may be classified as hearsay
and whether a hearsay exception properly is identified
are legal questions demanding plenary review. . . . We
review the trial court’s decision to admit evidence, if
premised on a correct view of the law, however, for an
abuse of discretion.’’ (Internal quotation marks omit-
ted.) Customers Bank v. Tomonto Industries, LLC, 156
Conn. App. 441, 445, 112 A.3d 853 (2015).
‘‘The requirement of authentication as a condition
precedent to admissibility is satisfied by evidence suffi-
cient to support a finding that the offered evidence is
what its proponent claims it to be.’’ Conn. Code Evid.
§ 9-1 (a).
‘‘The requirement of authentication applies to all
types of evidence, including . . . electronically stored
information . . . . The category of evidence known as
electronically stored information can take various
forms. It includes, by way of example only, e-mails,
Internet website postings, text messages and chat room
content, computer stored records and data, and com-
puter generated or enhanced animations and simula-
tions. As with any form of evidence, a party may use
any appropriate method, or combination of methods
. . . or any other proof to demonstrate that the proffer
is what the proponent claims it to be, to authenticate
any . . . electronically stored information. . . .
‘‘Both courts and commentators have noted that the
showing of authenticity is not on par with the more
technical evidentiary rules that govern admissibility,
such as hearsay exceptions, competency and privilege.
. . . Rather, there need only be a prima facie showing
of authenticity to the court. . . . Once a prima facie
showing of authorship is made to the court, the evi-
dence, as long as it is otherwise admissible, goes to
the [fact finder], [who] will ultimately determine its
authenticity. . . .
‘‘[T]he bar for authentication of evidence is not partic-
ularly high. . . . [T]he proponent need not rule out all
possibilities inconsistent with authenticity, or . . .
prove beyond any doubt that the evidence is what it
purports to be . . . . In addition, [a]n electronic docu-
ment may . . . be authenticated by traditional means
such as direct testimony of the purported author or
circumstantial evidence of distinctive characteristics in
the document that identify the author.’’ (Internal quota-
tion marks omitted.) State v. Papineau, 182 Conn. App.
756, 788–89, 190 A.3d 913, cert. denied, 330 Conn. 916,
193 A.3d 1212 (2018).
In the present case, the plaintiff’s testimony tends to
demonstrate that (1) the website www.liveauctioneers.-
com provides a platform for hosting auctions over the
Internet, (2) the defendant paid a third party to report
the results of the defendant’s auction on www.liveauc-
tioneers.com, (3) the third party in fact reported the
results of the auction as it occurred on May 19, 2012,
(4) exhibit 57 is a copy of the results as reported on
www.liveauctioneers.com that the plaintiff printed the
night before she testified, and (5) the name of the web-
site was printed on the document. Thus, the plaintiff’s
testimony constituted a sufficient prima facie showing
that exhibit 57 was what the plaintiff claimed it to be.
See Conn. Code Evid. § 9-1 (a). Accordingly, we con-
clude that the court properly admitted it into evidence
over the defendant’s challenge to it.
Finally, as to the admission of exhibit 5, which, like
exhibit 57, identified the cars sold at the auction and
the prices for which they sold, we conclude that, even
if we assume that exhibit 5 improperly was admitted,
that evidentiary ruling was harmless.
It is well established that, ‘‘[b]efore a party is entitled
to a new trial because of an erroneous evidentiary rul-
ing, he or she has the burden of demonstrating that the
error was harmful. . . . [A]n [improper] evidentiary
ruling will result in a new trial only if the ruling was
both wrong and harmful. . . . Moreover, an eviden-
tiary impropriety in a civil case is harmless only if we
have a fair assurance that it did not affect the [result].
. . . A determination of harm requires [the reviewing
court] to evaluate the effect of the evidentiary impropri-
ety in the context of the totality of the evidence adduced
at trial.’’ (Citation omitted; internal quotation marks
omitted.) Klein v. Norwalk Hospital, 299 Conn. 241,
254–55, 9 A.3d 364 (2010).
In the present case, the defendant does not address
expressly the harmfulness of the court’s evidentiary
rulings and, instead, claims that, ‘‘[o]ther than these
hearsay exhibits, the plaintiff produced no evidence to
prove the amount of her damages.’’ Importantly,
although both exhibits include a list of the cars sold at
the auction and the prices for which they sold, the
defendant fails to address whether one exhibit has
greater significance than the other. We note, however,
that the plaintiff, in her posttrial brief, relied on exhibit
57—not exhibit 5—to establish her damages under the
contract. Specifically, in her principal posttrial brief,
the plaintiff argued that, ‘‘[a]s to the proceeds of the
auction, [the plaintiff] maintains that exhibit 57, which
represents [the defendant’s] report to the classic car
community, is the most trustworthy evidence of the
auction’s proceeds.’’ (Emphasis added.) The plaintiff
again relied on exhibit 57 in calculating her damages,
stating that ‘‘[t]he damages to which the plaintiff is
entitled are as follows: $41,673.20 per the contract (See
exhibits 1 and 57),’’ and the court awarded the plaintiff
damages in that amount. Indeed, the plaintiff never
referenced exhibit 5 in either of her posttrial briefs,
and the court made no reference to that exhibit in its
decision.
Consequently, because we have concluded that
exhibit 57 properly was admitted into evidence and
because the plaintiff relied on exhibit 57 to establish
her damages, we have a fair assurance that the allegedly
improper admission of exhibit 5 did not affect the result
of the trial, and the defendant has failed to demonstrate
otherwise. See, e.g., State v. Durdek, 184 Conn. App.
492, 504–505, 195 A.3d 388 (before being entitled to new
trial, appellant must prove existence of both erroneous
ruling and resulting harm), cert. denied, 330 Conn. 934,
194 A.3d 1197 (2018). Accordingly, assuming, without
deciding, that exhibit 5 improperly was admitted, we
conclude that its admission was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The named defendant, Emanuel Dragone (Emanuel), is not participating
in this appeal. Accordingly, all references to the defendant in this opinion
are to Dragone Classic Motorcars, Inc. We note that Emanuel’s first name
has been spelled inconsistently in various court documents as Emanuel and
Emmanuel.
2
The compensation provision provides: ‘‘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 1st, 2012. The remaining balance is due within [ten] days [after]
the auction which is May 22, 2012.’’
3
The agreement provided that the plaintiff, as auction consultant, would
‘‘provide all of the necessary information, training and support for the auc-
tion’’ and would perform the following tasks and services: (1) ‘‘[s]et up [the
defendant] with Auction Flex, a comprehensive auction database manage-
ment system,’’ (2) work with the defendant’s technology team to establish
data and voice technology for conducting the auction and to create an
Internet catalog to run the auction live over the Internet, (3) ‘‘[s]pear-head
marketing efforts’’ with the defendant’s in-house marketing team, (4) train
staff how to use the auction database management system, (5) ‘‘[a]dvise,
and if requested, create the mandatory forms required to run an auction,’’
(6) ‘‘[m]ap-out and direct the layout of the physical auction,’’ and (7) ‘‘[c]on-
duct the actual auction . . . .’’
4
In April, 2016, Attorney Jeffrey R. Hellman filed an appearance on behalf
of the plaintiff and has continued to represent the plaintiff in this matter
since that date.
5
The plaintiff asserted the same claims against Emanuel, but the court
found ‘‘no basis for personal liability on the part of [Emanuel] because he
acted at all times in his corporate capacity on behalf of the [defendant].’’
6
The defendant also argues that the court improperly found that a written
contract existed between the parties because the plaintiff did not plead that
an oral or implied contract existed. The defendant appears to suggest that
because the plaintiff alleged the existence of a written contract, the court
was foreclosed from finding that an implied contract exists. We are not
persuaded.
‘‘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. An
implied in fact contract is the same as an express contract, except that
assent is not expressed in words, but is implied from the conduct of the
parties. . . . On the other hand, an implied in law contract is not a contract,
but an obligation . . . . It is based on equitable principles to operate when-
ever justice requires compensation to be made.’’ (Citation omitted.) Vertex,
Inc. v. Waterbury, 278 Conn. 557, 573–74, 898 A.2d 178 (2006).
In the present case, the plaintiff alleged that ‘‘[a] written contract outlining
[her] obligations and compensation was given to [the defendant and Eman-
uel]’’ and that she performed her duties as outlined in the contract. At trial,
she argued that the defendant assented to the written agreement by failing
to object over the course of several months as the plaintiff performed her
obligations under that contract. This is precisely what the court found
transpired. Because the court found that the defendant did not express its
assent to the written contract in words but, rather, through its conduct, the
court found that the written agreement was an implied in fact contract. See
Vertex, Inc. v. Waterbury, supra, 278 Conn. 573–74. Accordingly, because
a ‘‘written contract’’ can be either a signed, express contract or an unsigned,
implied in fact contract, we disagree with the defendant’s contention that
the plaintiff’s allegations in her complaint precluded the court’s finding that
an implied in fact contract existed.
7
The defendant relies on two excerpts from the plaintiff’s testimony. First,
as to the meaning of ‘‘gross auction proceeds,’’ the plaintiff testified:
‘‘[The Defendant’s Counsel]: . . . I’m asking you for your understanding
of what gross auction proceeds means; specifically, when you put it in the
exhibit 1 document, what did you mean by gross auction proceeds?
‘‘[The Plaintiff]: I meant the sum of the hammer prices that we sold at
the auction.
‘‘[The Defendant’s Counsel]: So, not including the buyer’s premium?
‘‘[The Plaintiff]: Correct.
‘‘[The Defendant’s Counsel]: Not including sales tax?
‘‘[The Plaintiff]: That is also correct.
‘‘[The Defendant’s Counsel]: And not including a seller’s premium?
‘‘[The Plaintiff]: I’m not sure what that is, but correct; it does not
include that.
‘‘[The Defendant’s Counsel]: Okay. And did you discuss at your meeting
in January of 2012 with [Emanuel] and George prior to preparing exhibit 1
whether the 1 percent of gross auction proceeds that you were to receive
was going to include the buyer’s premium, or the sales tax, or the seller’s
premium? Exactly what the specifics of what the gross auction proceeds
meant?
‘‘[The Plaintiff]: I do not believe so, because it’s an accepted—you couldn’t
possibly expect to be paid on sales tax collected, because that’s never your
income; it’s passed through to the entity to which it’s owed. But I cannot
recall having to clarify what that is.
‘‘[The Defendant’s Counsel]: So you didn’t have a discussion with them
about what gross auctions proceeds meant before you wrote up this docu-
ment?
‘‘[The Plaintiff]: As far as I can recollect, no.’’
Second, as to the $10,000 payment, the plaintiff testified:
‘‘[The Defendant’s Counsel]: It’s true, isn’t it, that you never discussed
the $10,000 minimum payment with [Emanuel] or George, isn’t that right?
‘‘[The Plaintiff]: After I—it was discussed on January 26, [2012], so I
can’t say it was never discussed. It is true that [it] was [not] discussed
after that. To the best of my recollection, I don’t think we did.
‘‘[The Defendant’s Counsel]: But on January 26, [2012], you did discuss
the $10,000 minimum payment?
‘‘[The Plaintiff]: I think so. It’s seven and a half years now. I cannot say
with philosophical certainty that it was discussed, but I imagine it would
have been.’’ (Emphasis added.)
We note that, insofar as the plaintiff’s testimony is ambiguous on these
points, the court, as the trier of fact, was ‘‘free to accept or reject, in whole
or in part, the testimony offered by either party.’’ (Internal quotation marks
omitted.) Benjamin v. Norwalk, 170 Conn. App. 1, 25, 153 A.3d 669 (2016).