Downing v. Dragone

• Decision Date: 11 September 2018
• Docket Number: AC 39942
• Citation: Downing v. Dragone, 184 Conn.App. 565, 195 A.3d 699 (Conn. App. 2018)
• Court: Connecticut Court of Appeals
• Parties: Christine DOWNING v. Emmanuel DRAGONE et al.

184 Conn.App. 565

195 A.3d 699

Christine DOWNING

v.Emmanuel DRAGONE et al.

AC 39942

Appellate Court of Connecticut.

Argued February 22, 2018

Officially released September 11, 2018

Edward T. Murnane, Jr., Bridgeport, for the appellant (defendant Dragone Classic Motorcars, Inc.).

Jeffrey Hellman, for the appellee (plaintiff).

DiPentima, C.J., and Lavine and Pellegrino, Js.

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 finding 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 procedural history. The plaintiff is an experienced auctioneer. While working as an auctioneer, she met George Dragone (George). George and his brother, Emmanuel Dragone (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 compensation. 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, therefore, required greater compensation. The court found that, on January 26, 2012, "[the plaintiff] advised [Emmanuel] ... that she would require a fee of 1 percent of the auction's gross [proceeds], with a minimum of $30,000, which she said was standard when an auctioneer also sets up the auction." She testified that, following the initial discussion, she drafted a written contract reflecting "that their agreement was for 1 percent 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 document, 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 services in connection with the auction and, specifically, "provide[d] for compensation of 1 percent of gross auction 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 discussed 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 automobile 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 Emmanuel for six months after the auction, her efforts were to no avail.⁵

On June 6, 2013, the plaintiff commenced the underlying 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 defendant 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 presented 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 preliminary statement of issues prejudices an opposing party, the [appellate] court may refuse to consider such issue."

Although we do not condone the defendant's inadequate presentation of the issues for review in its preliminary statement, we review the merits of its central claim; see footnote 2 of this opinion; because we conclude 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 argument 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 finding. More specifically, the defendant argues that the trial court imputed to Emmanuel knowledge of the contents 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 document on his desk but did not read it until four months after the auction." According to the defendant, this latter 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 plaintiff's] claim for compensation." The court determined that "the evidence showed that [the plaintiff] gave [Emmanuel] the contract, which specified compensation 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 proceeds," which it found to be $41,000.

We now set forth the relevant legal principles governing 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 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." (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 findings, [w]e do not examine the record to determine...