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*********************************************** 
CHRISTINE DOWNING v. EMMANUEL

DRAGONE ET AL.

(AC 39942)

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

Syllabus

The plaintiff, a professional auctioneer, sought to recover damages for, inter

alia, breach of contract from the defendant automobile retail company,

D Co., and the defendant E, who operated D Co. with his brother. The

parties disagreed as to the appropriate amount of compensation due to

the plaintiff for the work that she had performed in connection with D

Co.’s classic automobile auction. At trial, E testified that the plaintiff

should receive her standard auction fee, plus expenses, that she allegedly

requested during a prior meeting with E and his brother. The plaintiff

testified that her standard fee did not apply and that the defendants

owed her a certain percentage of the gross auction proceeds pursuant

to an unsigned, written agreement that she had drafted. The court found

that the alleged agreement was an implied in fact contract and that E

was charged with knowledge of its contents, including its compensation

provision, because E testified that he had that contract on his desk but

did not read it until four months after the auction. The court concluded

that the plaintiff was entitled to receive a certain percentage of the

gross auction proceeds and rendered judgment in part for the plaintiff

on her breach of contract claim, from which the defendants appealed

to this court. Held that the trial court’s decision rested on a clearly

erroneous factual finding that was not supported by any evidence in

the record; there was no evidence from which the trial court could have

found that E testified that he had the written contract on his desk but

did not read it until four months after the auction, and because the

court substantially relied on that factual finding when it found in favor

of the plaintiff on her breach of contract claim and, more specifically,

when it reasoned that E was charged with knowledge of the contents

of the contract, including its compensation provision, a new trial on the

breach of contract claim was necessary.

Argued February 22—officially released September 11, 2018

Procedural History

Action to recover damages for, inter alia, breach of

contract, and for other relief, brought to the Superior

Court in the judicial district of Stamford-Norwalk and

tried to the court, Lee, J.; judgment for the plaintiff in

part, from which the defendants appealed to this court.

Reversed in part; new trial.

Edward T. Murnane, Jr., for the appellant (defendant

Dragone Classic Motorcars, Inc.).

Jeffrey Hellman, for the appellee (plaintiff).
Opinion

LAVINE, J. The plaintiff, Christine Downing, brought

this action to recover money owed for services she is

alleged to have rendered in accordance with an

agreement she had with the defendant Dragone Classic

Motorcars, Inc.1 After a trial to the court, the court

found in favor of the plaintiff on her breach of contract

claim and rendered judgment accordingly. On appeal,

the defendant principally claims that the trial court

based its legal conclusions on a clearly erroneous 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 ‘‘firsttime 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

whether the [court] could have reached a conclusion

other than the one reached. . . . Instead, we make

every reasonable presumption . . . in favor of the trial

court’s ruling.’’ (Internal quotation marks omitted.)

Connecticut Light & Power Co. v. Proctor, 324 Conn.

245, 258–59, 152 A.3d 470 (2016). ‘‘It is well settled that

the existence of an implied in fact contract is a question

of fact for the trier.’’ Id., 258.

‘‘Where . . . some of the facts found [by the trial

court] are clearly erroneous and others are supported

by the evidence, we must examine the clearly erroneous

findings to see whether they were harmless, not only

in isolation, but also taken as a whole. . . . If, when

taken as a whole, they undermine appellate confidence

in the court’s fact finding process, a new hearing is

required.’’ (Internal quotation marks omitted.) LeBlanc

v. New England Raceway, LLC, supra, 116 Conn. App.

281; see also DiNapoli v. Doudera, 28 Conn. App. 108,

112, 609 A.2d 1061 (1992).

The defendant concedes that ‘‘the plaintiff performed

work as an auctioneer for the defendant [and] that the

plaintiff performed some work in helping to organize

and prepare for the [car] auction.’’ According to the

defendant, the only disagreement between the parties

‘‘concerns the amount of the plaintiff’s compensation.’’

We thoroughly have reviewed the record and conclude that the trial court’s decision rests on a clearly

erroneous factual finding. There is no evidence from

which the trial court could have found that ‘‘[Emmanuel] testified that he had the document on his desk but

did not read it until four months after the auction.’’9

(Emphasis added.) The plaintiff, in fact, conceded during oral argument before this court that this latter finding was an ‘‘error.’’ The trial court relied on this factual
finding when it found in favor of the plaintiff on her

breach of contract claim.10 Significantly, the court reasoned that ‘‘[Emmanuel] [was] charged with knowledge

of the contents of the contract,’’ specifically, the portion

dealing with the alleged compensation provision,

despite ‘‘[his claim] that he did not read the contract

until several months after the auction . . . .’’ The

court’s memorandum of decision, therefore, demonstrates that, in imputing the terms of the document to

the defendant, the court relied on what it thought to

be Emmanuel’s own testimony. More specifically, the

court relied on ‘‘[Emmanuel’s claim] that he did not

read the contract until several months after the auction

. . . .’’11 At trial, Emmanuel did not so testify. Accordingly, we conclude that the trial court’s reasoning substantially relied on a clearly erroneous factual finding,

requiring a new trial. See, e.g., DiNapoli v. Doudera,

supra, 28 Conn. App. 112–13 (new hearing in damages

required where trial court ‘‘substantially based’’ its

award on clearly erroneous factual findings); cf.

LeBlanc v. New England Raceway, LLC, supra, 116

Conn. App. 281–82 (even if factual finding was incorrect, it was harmless because this court ‘‘[was] not

persuaded that [the] finding formed the basis of the

[trial] court’s judgment’’).12

In reaching its decision, the trial court relied on this

court’s decision in Sandella v. Dick Corp., 53 Conn.

App. 213, 729 A.2d 813, cert. denied, 249 Conn. 926, 733

A.2d 849 (1999). In Sandella, this court held that the

jury reasonably could have inferred that an ‘‘implied

contract’’ existed between the parties on the basis of

a letter in the cross claim defendant’s possession that

it neither signed nor returned. See id., 216–17, 219–22.

This court noted that the jury reasonably could have

determined that the cross claim defendant’s ‘‘failure to

decline the conditions [set forth in the letter] was an

implied acceptance of its conditions.’’ Id., 220. Sandella

did not involve a situation where the trier of fact relied

on a clearly erroneous factual finding, however, and is,

therefore, distinguishable.

The judgment is reversed in part and the case is

remanded for a new trial only as to count one of the

plaintiff’s complaint. The judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

1 The plaintiff also commenced this action against the named defendant,

Emmanuel Dragone (Emmanuel). The trial court did not find Emmanuel to

be liable under either count of the plaintiff’s two count complaint. The court

rendered judgment only against Dragone Classic Motorcars, Inc. Counsel

for Emmanuel and Dragone Classic Motorcars, Inc., filed an appeal on behalf

of both defendants. Emmanuel, however, did not file a separate brief in this

appeal, and he is not personally aggrieved by the trial court’s judgment. See

General Statutes § 52-263. We therefore refer to Dragone Classic Motorcars,

Inc., as the defendant in this opinion.

2 The defendant also claims that the plaintiff: (1) failed to prove ‘‘mutual

assent or a meeting of the minds, as required to form an express or implied

contract’’; (2) ‘‘failed to prove what her services were reasonably worth’’;

(3) ‘‘harbored a secret intention that [was] not an enforceable contract
provision’’; and (4) needed to present expert testimony to establish ‘‘industry

standards’’ and ‘‘to explain the phrase ‘gross auction proceeds.’ ’’ Because

we conclude that the trial court based its legal conclusions substantially on

a clearly erroneous factual finding, we do not address these additional

claims. Additionally, the defendant withdrew its claim that the trial court

‘‘relied on an exhibit for identification to calculate damages,’’ after conceding

that the exhibit was, in fact, admitted as a full exhibit.

3 The auction was eventually held on May 19, 2012.

4 The portion of the document allegedly addressing the plaintiff’s compensation provided as follows: ‘‘As compensation for the above duties, I require

[1 percent] of the gross auction proceeds, with a minimum payment of

$30,000. I would like [one third] of the minimum, $10,000, to be paid by

April 1, 2012. The remaining balance is due within [ten] days of the auction,

which is May 22, 2012. If you wish to make any amendments or additions

to this agreement, please notify me within [ten] days of your desire to do so.’’

5 The court found that, although the defendant’s financial manager prepared a check for approximately $3800, representing a fee of $2500 plus

expenses, the plaintiff did not receive this check, and it was not cashed.

6

In count one of her complaint, the plaintiff alleged that ‘‘[a] written

contract’’ outlined her obligations and compensation according to the parties’ agreement and that she ‘‘performed the duties outlined in the contract.’’

Notwithstanding her allegations, the trial court found that an implied in fact

contract existed under the circumstances. See footnote 8 of this opinion.

On appeal, the defendant does not argue that the court could not make

such a finding due to the plaintiff’s allegations.

7 Because the court rendered judgment for the defendant on the unjust

enrichment count and the plaintiff did not file an appeal or cross appeal,

we do not discuss the second count further in this opinion.

8 The court ‘‘[found] that the defendants breached an implied contract’’

but did not specify whether it was one implied in fact or one implied in

law. ‘‘The term ‘implied contract’ . . . often leads to confusion because it

can refer to an implied in fact contract or to an implied in law contract.’’

Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

The plaintiff argues in her appellate brief, and conceded during oral argument before this court, that ‘‘the court found the existence of an implied

in fact contract.’’ As noted by our Supreme Court, ‘‘an implied in law contract

is another name for a claim for unjust enrichment.’’ Vertex, Inc. v. Waterbury,

supra, 278 Conn. 574. The trial court determined that the plaintiff had failed

to prove the value of her services to the defendants and, therefore, could

not prevail on her unjust enrichment claim, and that ‘‘such an award would

be duplicative and inconsistent with an award for breach of contract and

would not be allowed.’’ See, e.g., Connecticut Light & Power Co. v. Proctor,

158 Conn. App. 248, 251 n.7, 118 A.3d 702 (2015) (‘‘[a] court . . . cannot

grant relief on a theory of unjust enrichment unless the court first finds

that there was no contract between the parties’’), aff’d, 324 Conn. 245, 152

A.3d 470 (2016). Because ‘‘an implied in law contract is another name for

a claim for unjust enrichment’’; Vertex, Inc. v. Waterbury, supra, 574; and

the court found against the plaintiff on her claim for unjust enrichment, we,

too, understand the court to have found that an implied in fact contract

existed under the circumstances.

9 During direct examination, Emmanuel testified in relevant part as

follows:

‘‘[The Plaintiff’s Counsel]: Showing you what’s been marked exhibit 1 [the

document]. Do you recognize it?

‘‘[Emmanuel]: Yes.

‘‘[The Plaintiff’s Counsel]: Okay. And when did you first receive exhibit 1?

‘‘[Emmanuel]: It was placed on my desk four months after the auction.

‘‘[The Plaintiff’s Counsel]: Okay. You’re claiming you did not receive it

on or about February 2, 2012?

‘‘[Emmanuel]: Absolutely not.

‘‘[The Plaintiff’s Counsel]: Okay. But you did receive it afterwards?

‘‘[Emmanuel]: Four months after the auction.

* * *

‘‘[The Plaintiff’s Counsel]: [Emmanuel], how did you receive this

document?

‘‘[Emmanuel]: It was placed on my desk four months after the auction;

it was just laying on my desk in Westport.

‘‘[The Plaintiff’s Counsel]: Do you know who placed it on your desk?

‘‘[Emmanuel]: It either had to be [the plaintiff] or David Bate [a former

employee]. There was no one else that had any knowledge of this.’’
10 It is significant that, under the present circumstances, the trial court

did not rely on a credibility determination. See, e.g., Stewart v. King, 121

Conn. App. 64, 74 n.5, 994 A.2d 308 (2010) (court made no credibility determinations, but ruling on claim ‘‘include[d] implicit findings that it resolved

any credibility determinations and issues involving the testimony in a manner

that supports its ruling’’); LeBlanc v. New England Raceway, LLC, supra,

116 Conn. App. 274 (‘‘[a]s a reviewing court [w]e must defer to the trier of

fact’s assessment of the credibility of the witnesses’’ [internal quotation

marks omitted]). Rather, the trial court’s memorandum of decision demonstrates that its legal reasoning was substantially based on specific testimony

that it attributed to Emmanuel that did not, in fact, take place at trial.

11 Our conclusion is further supported by statements made by the trial

court during oral argument. In one instance, the following colloquy occurred

between the court and counsel for the plaintiff:

‘‘[The Plaintiff’s Counsel]: Let’s also look a little bit at some of the things

that are undisputed. [Emmanuel] admits that he received exhibit 1 [the

document]. He said it was on his desk. [The plaintiff] said she left it on his

desk. The only thing they disagree about is when it was left on his desk.

She says it was left on his desk in February, [2012], long before the auction.

He says it was left on his desk after the auction, months after his—

‘‘The Court: I don’t think so. I understood [Emmanuel] as like he saw it

after the auction.

‘‘[The Plaintiff’s Counsel]: I think that’s correct, Your Honor. I think you’re

correct.’’ (Emphasis added.)

Later on, when counsel for the plaintiff explained why the defendant

breached a contract between the parties, the court also stated in relevant

part: ‘‘And I think it’s important that [Emmanuel] did acknowledge that he

had the contract somewhere on his desk or somewhere. He hasn’t said,

[I’ve] never seen this before.’’ (Emphasis added.)

12 The plaintiff argues that we may affirm the trial court’s judgment on

the alternative ground that she sufficiently proved a breach of an express

contract. The trial court did not find that an express contract existed. As

an appellate court, we may not find facts. See, e.g., Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 106, 84 A.3d 828 (2014) (‘‘[i]t is elementary that

neither [the Supreme Court] nor the Appellate Court can find facts in the

first instance’’); Positive Impact Corp. v. Indotronix International Corp.,

96 Conn. App. 361, 364, 900 A.2d 535 (existence of contract is question of

fact), cert. denied, 280 Conn. 915, 908 A.2d 538 (2006).