February 22, 2018
to recover damages for, inter alia, breach of contract, and
for other relief, brought to the Superior Court in the
judicial district of Stamford-Norwalk and tried to the court,
Lee, J.; judgment for the plaintiff in
part, from which the defendants appealed to this court.
Reversed in part; new trial.
T. Murnane, Jr., for the appellant (defendant Dragone Classic
Jeffrey Hellman, for the appellee (plaintiff).
DiPentima, C. J., and Lavine and Pellegrino, Js.
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. 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. We agree with the defendant and,
therefore, reverse in part the judgment of the trial court
and remand the case for further proceedings.
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.''
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,
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
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, , and the balance within
ten days after the auction.'' The court found that this
document ‘‘[did] not contain signature lines for
either party, '' and neither party signed it.
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
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.
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 contract 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. This appeal followed. Additional facts
will be set forth as necessary.
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.
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
‘‘(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 ...