Downing v. Dragone

• Decision Date: 01 November 2022
• Docket Number: AC 44416
• Citation: 216 Conn.App. 306,285 A.3d 59
• Parties: Christine DOWNING v. Emmanuel DRAGONE et al.
• Court: Connecticut Court of Appeals

216 Conn.App. 306

285 A.3d 59

Christine DOWNING

v.Emmanuel DRAGONE et al.

AC 44416

Appellate Court of Connecticut.

Argued February 10, 2022

Officially released November 1, 2022

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

Jeffrey Hellman, New Haven, for the appellee(plaintiff).

Prescott, Cradle and Suarez, Js.

SUAREZ, J.

In this breach of contract action, the defendantDragone Classic Motorcars, Inc., appeals from the judgment of the trial court, rendered after a court trial, in favor of the plaintiff, Christine Downing.¹On appeal, the defendant claims that the court improperly (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 procedural 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 plaintiff met with [George and Emanuel Dragone, the other co-owner of the defendant] at [the defendant's] Westport, 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 [Emanuel] 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 auction, the plaintiff's work would require her to do everything ... [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 $30,000.²The 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 office on February 2, 2012. the plaintiff showed [Emanuel] the agreement describing the terms of her engagement 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 plaintiff 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 auction.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 software 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 million 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, 2013.⁴In 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.⁵The defendant appealed, claiming that the court based its legal conclusions on a clearly erroneous factual finding.SeeDowning v. Dragone , 184 Conn. App. 565, 570–71, 195 A.3d 699(2018).

On appeal, this court agreed with the defendant, holding that the court's conclusion that the defendant breached the parties’ contract was based on a clearly erroneous factual finding.Id., at 574–75, 195 A.3d 699.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., at 575, 195 A.3d 699.

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 parties 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 January 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 damages and interest in the amount of $100,570.54, which included $41,673.20 in damages pursuant to the contract, representing 1 percent of the "gross auction proceeds"; $34,727 in prejudgment interest at a rate of 10 percent per annum; and $24,170.34 in offer of compromise 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.Additional 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 disagree.

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 discussed 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 written 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, [Emanuel], and George, 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.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 agreement 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 permitted all of the plaintiff's efforts to prepare for and accomplish [the] auction."Accordingly, the court found "that [Emanuel] and George knew that the plaintiff was completing 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...