DINARDO SEASIDE TOWER, LIMITED v. SIKORSKY AIRCRAFT CORPORATION
(AC 35510)
Connecticut Appellate Court
September 23, 2014
DiPentima, C. J., and Lavine and Dupont, Js.
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Argued February 4—officially released September 23, 2014
(Appeal from Superior Court, judicial district of Waterbury, Complex Litigation Docket, Shaban, J.)
Edward V. O‘Hanlan, with whom were Thomas J. Donlon and Michele Maresca, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, DiNardo Seaside Tower, Ltd., appeals from the judgment rendered in favor of the defendant, Sikorsky Aircraft Corporation, following a twenty-three day jury trial. On appeal, the plaintiff claims that the trial court (1) improperly granted the defendant‘s motion for a directed verdict as to the second count of the complaint alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA),
The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of the plaintiff‘s appeal. This action arose out of a lease between the parties concerning certain industrial property owned by the plaintiff in Bridgeport. The lease commenced on November 23, 1987, whereby the defendant agreed to occupy buildings consisting of approximately 220,000 square feet with an initial annual rental fee of $1.2
In April, 2000, the defendant notified the plaintiff that it intended to “complete” the lease at the end of the year. In a December 30, 2000 completion agreement signed by the parties, the defendant agreed to make payments pursuant to the terms of the lease covering the time period of January 1, 2001, through November 30, 2002. The parties agreed that the defendant had satisfied all of the conditions for the return of the leased property, subject to a few minor duties that the defendant agreed to perform.
In 2001, the defendant needed space to manufacture H-66 Comanche helicopters for the United States Army. On March 1, 2002, the parties executed “AMENDMENT NO. 3 TO LEASE AGREEMENT” (third amendment), which terminated the completion agreement and ratified, adopted and restated the provisions of the lease agreement between the parties, except as expressly amended by the terms of third amendment. The third amendment extended the terms of the lease until November 30, 2007. From March, 2002, through November, 2002, the monthly rent was $100,000, and for the balance of the lease the monthly rent increased to $110,000. Paragraph 6 of the third amendment provided: “[The defendant] may, at [the defendant‘s] option and at [the defendant‘s] sole cost and expense, construct the improvements to the Premises (“the [defendant] Improvements“) described in the plans and specifications to be attached hereto and made a part hereof as
Exhibit A in a mutually agreeable form by [the plaintiff] and [the defendant]. Such plans and specifications shall be attached hereto within sixty (60) days after execution hereof. After completion of the [defendant] Improvements, such [defendant] Improvements shall be deemed as part of the Premises and not subject to restoration or removal upon expiration or termination of the Lease term.
“Notwithstanding any provision to the contrary contained herein or in the Lease, upon completion of the Phase I and Phase II [defendant] Improvements (as delineated and set forth on Exhibit A), such [defendant] Improvements (other than [the defendant‘s] furniture, equipment and removable trade fixtures) shall become property of [the plaintiff] and [the defendant] shall not be required to remove or restore the Factory Area [defendant] Improvements (as delineated and set forth on Exhibit A) at the end of the Lease term, provided, however, that [the plaintiff] may, by written notice to [the defendant] at least sixty (60) days prior to the end of the Lease term, designate any or all of the Factory Area [defendant] Improvements to remain as property of the [plaintiff] and not be removed or restored at the end of the Lease term, as such term may be extended.” (Emphasis in original.)
The defendant proceeded to modify the interior of the property, including the construction of office space with workstations that required electric, data and telephone wires. The defendant gained the approval of the plaintiff to replace the existing 90 ton chilled water air conditioning system with a 270 ton version, but due to budgetary
In 2004, the Army canceled the Comanche helicopter program. The defendant‘s lease obligation, however, did not terminate until the end of 2007. As the end of the lease approached, Alan David Mortensen began to review the condition of the property on behalf of the plaintiff. Specifically, in the summer of 2007, Mortensen took photographs of the parking lot and building exteriors. Later, he conducted a walk through of the buildings with representatives of the defendant. On September 28, 2007, Mortensen drafted a memo with attached photographs of the walk through. Mortensen indicated in this report that many certifications and records of testing were either missing or expired. With respect to the exterior of the building, Mortensen determined that the parking lot, catch basins and curbs were in need of repair; specifically, the cracks needed to have weeds removed and be filled and the parking lots lines needed to be redone. Mortensen also noted that the building exterior was in need of repair; namely, the windows and frames were in poor condition and the DryVit stucco exterior was fractured and sagging. Mortensen further indicated that the telephone switch and the data/voice
and power infrastructure had been removed from the building and that a DX air conditioning system had been installed rather than the chilled water system approved by the plaintiff.
The plaintiff sent various notices to the defendant regarding its assessment of the condition of the property. Representatives of both parties attended a meeting on November 29, 2007, just prior to the expiration of the lease, regarding the plaintiff‘s concerns regarding the condition of the property. At that meeting, no one on behalf of the defendant offered to address or remedy the plaintiff‘s issues. Two days later, the plaintiff acknowledged the receipt of the keys to the property but rejected the defendant‘s attempted surrender of the premises.
In 2009, the plaintiff commenced the present action with a two count complaint. Count one alleged that the defendant had breached the terms of the lease agreement. Specifically, the plaintiff alleged that the defendant improperly had removed telecommunications, data and electrical power wiring, had cut wires, had disabled the telephone system to the point that a replacement was necessary, had disabled the energy management, security and fire alarm systems that had been connected to an off-site property owned by the defendant, had disabled the card access aspect of the security system, had removed security cameras and had cut various pipes throughout the building. The plaintiff further alleged that, in breach of the lease agreement, the defendant had failed to maintain the property, including failing to clean and caulk thermal windows, which allowed water to damage the building and caused the DryVit stucco exterior to fail, and failing to maintain the parking lot and sidewalks. Finally, the plaintiff claimed that employees of the defendant had vandalized the interior of the buildings and removed property belonging to the plaintiff.
In count two of the complaint, the plaintiff alleged that the conduct of the defendant constituted a violation of CUTPA. Specifically, it claimed that the intentional destruction of the property constituted an unfair trade practice and was done with malice toward the plaintiff and/or to prevent another occupant from using the property.
During the trial, the defendant presented evidence that the air conditioner it had installed was less expensive, but either
The defendant also produced evidence that abandoned data wiring needed to be removed because it constituted a fire and structural hazard and that new tenants often preferred to install their own wiring to meet the needs of their particular business. Finally, the defendant noted that the terms of the lease placed the maintenance of the DryVit stucco exterior with the plaintiff.
At the conclusion of the plaintiff‘s case, the defendant moved for a directed verdict with respect to both counts. The court reserved judgment on the motion in accordance with
After deliberating, the jury returned a verdict for the defendant as to both counts. The jury noted in an interrogatory that the plaintiff had not proven that the defendant had breached the lease. The plaintiff moved to set aside the verdict, arguing that the court improperly charged the jury and that the verdict was against the weight of the evidence. The court denied the plaintiff‘s motion, and this appeal followed. Additional facts will be set forth as necessary.
I
The plaintiff first claims that the court improperly directed the verdict in favor of the defendant with respect to the second count of the complaint alleging a CUTPA violation. Specifically, the plaintiff argues that (1) the court‘s reliance on law limiting the applicability of CUTPA to the defendant‘s primary trade or business was misplaced, (2) the court improperly raised this question sua sponte, and (3) even if it were required to show that the defendant‘s primary trade of business was leasing commercial real estate to invoke CUTPA, sufficient evidence existed for the jury to so find. For these three reasons, it argues, the court should not have granted the defendant‘s motion for a directed verdict. We are not persuaded by the plaintiff‘s arguments.
review is plenary. . . . Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court‘s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury‘s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation. . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal quotation marks omitted.) Ibar v. Stratek Plastic Ltd., 145 Conn. App. 401, 410, 76 A.3d 202, cert. denied, 310 Conn. 938, 79 A.3d 891 (2013); see also Perez-Dickson v. Bridgeport, 304 Conn. 483, 512–13, 43 A.3d 69 (2012). We note, however, that a “verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Emphasis added; internal quotation marks omitted.) Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 693, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).
Having identified our standard of review and the law applicable to the procedural posture of the case, we now address the applicable substantive law. “CUTPA provides: No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
Our Supreme Court has explained that “a party need not prove an intent to deceive to prevail under CUTPA.” (Internal quotation marks omitted.) Associated Investments Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 156, 645 A.2d 505 (1994); see also M. Taylor & D. Krisch, Encyclopedia of Connecticut
Causes of Action (2009), pp. 110–12. Finally, we note that the appellate courts of this state have stated that not every breach of a contract constitutes a CUTPA violation; see Naples v. Keystone Building & Development Corp., supra, 295 Conn. 228; Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 571, 845 A.2d 417 (2004); and that the issue of whether CUTPA applies to a defendant is a legal question, but whether a defendant‘s actions constituted a deceptive or unfair trade practice is a question of fact. See Szekeres v. Szekeres, 126 Conn. App. 829, 841, 16 A.3d 713, cert. denied, 300 Conn. 939, 17 A.3d 475 (2011).
In its complaint, the plaintiff alleged that the defendant intended to disable the property for use by another occupant and this constituted a violation of CUTPA. Specifically, the plaintiff averred that the defendant had materials and infrastructure taken or destroyed and that this was done to ensure that the property could not be used by another tenant without the plaintiff having to expend significant amounts of money to effectuate repairs. The plaintiff also alleged that the defendant was in the trade or business of “renting facilities for the use of its various contracts and programs throughout the country and the world.”
On October 17, 2012, at the conclusion of the plaintiff‘s case, the defendant made an oral motion for a directed verdict on both counts of the complaint. It argued that even intentional breaches of a contract do not constitute a per se violation of CUTPA. It then stated that there was no specific intent to disable the property or to prevent the plaintiff from renting it to another party. The court reserved judgment on the defendant‘s motion.
One week later, the court requested counsel for the plaintiff and the defendant to provide cases addressing whether the defendant‘s leasing of property was part of its trade or commerce. The court expressly stated that it did not want a memorandum of law and that it would not hear oral argument on this particular issue; it only wanted copies of any applicable cases. It then stated: “So, I‘ll repeat it, just to be clear: that I‘m not going to be doing any oral argument, just if you can find any authority—and, again, based on the facts of this case, whether [the defendant‘s] leasing of the property is part of the [defendant‘s] trade or commerce. I just want cases printed out. And, obviously, you should have cases for other counsel—copies for other counsel as well.” Neither party objected to the course of action taken by the court.
On October 26, 2012, following an in-chambers charging conference, the court informed counsel that it would grant the defendant‘s motion for a directed verdict with respect to the CUTPA count. The plaintiff‘s counsel noted his objection to the case law relied upon by the court in directing the verdict as contrary to the remedial
purpose of CUTPA and erroneous under the plain language of the CUTPA statute and its legislative history. On November 1, 2012, the court expounded on its reason for directing the verdict on the record. “A CUTPA violation may not be alleged for activities that are incidental to an entity‘s primary trade or commerce, and for that our Appellate Court has weighed at—through McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn. App. 486, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006)]. In making a determination as to whether a defendant is subject to CUTPA and has committed a violation thereof, it must first be determined whether the defendant‘s actions were carried out in the defendant‘s trade or commerce. . . . The conduct at issue must occur in the defendant‘s primary trade or business; it must not be merely incidental to the defendant‘s trade or business.
“In this case the plaintiff alleges that the defendant is in the trade or business of renting facilities for the use of its various contracts and programs throughout the country and the world. . . . The evidence presented at trial was sufficient to establish the defendant is a corporation which manufactures and services aviation equipment, including helicopters. The defendant has other facilities which it either
“Now the evidence presented fails to make out a prima facie case in support of both the evidence needed to present the claim to the jury for its consideration and that needed to establish a necessary element to bring the claim under CUTPA. Accordingly, as to the second count of the complaint, as a matter of law, the plaintiff has no claim under CUTPA as the defendant‘s conduct in leasing or vacating the property is not part of the defendant‘s trade or commerce within the meaning of that statute. As a result, the court will, as part of its instructions to the jury, direct the jury to return a verdict in favor of the defendant as to the second count.”4
A
The plaintiff‘s primary argument is that the trial court followed decisions from this court that were not controlling and improperly interpreted CUTPA to limit the application of that statute to instances where the defen-
dant‘s unfair or deceptive act occurred in the conduct of its primary trade or commerce. We are not persuaded by this argument.
The starting point for our discussion is Arawana Mills Co. v. United Technologies Corp., 795 F. Supp. 1238 (D. Conn. 1992), where the United States District Court of Connecticut granted in part a motion to dismiss. The defendant in that case, United Technologies Corporation, leased property from the plaintiff, Arawana Mills Company. Id., 1240. The plaintiff alleged in its complaint that the defendant had spilled, leaked and discharged hazardous substances into the soil and groundwater, causing contamination in violation of federal and state law. Id., 1241. The ninth count of the complaint alleged a violation of CUTPA. Id., 1252. The defendant argued that the complaint failed to state a claim upon which relief could be granted because it was not in the trade of leasing property and, therefore, could not be liable under CUTPA. Id. The District Court acknowledged that the act of leasing this property was incidental to the defendant‘s true business of repairing and servicing aircraft engines. Id., 1253. It concluded that the plaintiff “has no claim under CUTPA against [the defendant] for [its] conduct in leasing the Property, because leasing property is not this defendant‘s ‘trade or commerce’ within the meaning of CUTPA.” Id.; see also Sealy Connecticut, Inc. v. Litton Industries, Inc., 989 F. Supp. 120, 127 (D. Conn. 1997)
This court applied the reasoning of Arawana Mills Co. in McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn. App. 486 (McCann). In that case, the plaintiffs entered into a contract with the defendants to purchase four acres of property. Id., 489. There were 10,000 gallons of water and oil in the basement of one of the buildings, and the plaintiffs learned that the oil had contaminated the concrete forming the basement and the surrounding soil. Id. Two and one-half years later, the Department of Environmental Protection ordered the plaintiff to remediate the soil. Id. The plaintiffs commenced an action against the defendants, alleging, inter alia, a violation of CUTPA. Id., 502. The trial court granted a directed verdict in favor of the defendants. Id., 489.
In addressing the decision to direct the verdict on the plaintiffs’ CUTPA count in McCann, this court noted that the trial court had directed the verdict in favor of the defendants on the basis of “the ‘as is’ provision of the agreement and that the defendants had not relied
on [David M.] McDermott‘s representations. The [trial] court [had] concluded . . . that McDermott‘s misrepresentation was not the proximate cause of the plaintiff‘s loss.” Id., 520. On appeal, however, the defendants argued that “to constitute a violation of CUTPA, the alleged offense must arise out of the offenders’ primary trade or business . . . .” Id., 521. This court noted that this matter was not addressed by the trial court, but chose to review it nonetheless pursuant to its supervisory powers. Id., 521 n.30. Relying on the reasoning of Cornerstone Realty, Inc. v. Dresser Rand Co., 993 F. Supp. 107, 111–12 (D. Conn. 1998), and Arawana Mills Co. v. United Technologies Corp., supra, 795 F. Supp. 1238, this court concluded “that a CUTPA violation may not be alleged for activities that are incidental to an entity‘s primary trade or commerce.” McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn. App. 523. This court continued: “Because the defendants in this case were not in the business of selling real property, and the purchase and sale agreement at issue was merely incidental to the defendants’ sale and servicing of automobiles, [this court] concluded that the [trial] court properly directed a verdict as to the plaintiffs’ CUTPA count.” Id.
This court next applied the primary trade or commerce principle in Sovereign Bank v. Licata, 116 Conn. App. 483, 977 A.2d 228 (2009), appeal dismissed, 303 Conn. 721, 36 A.3d 662 (2012) (cert. improvidently granted). This court iterated that a CUTPA violation may not be alleged for activities that are incidental to an entity‘s primary trade or business. Id., 494. In Sovereign Bank, the substituted plaintiff was in the business of acquiring real estate, and not in the mortgage business. Id. “There was no evidence presented at trial that [the substituted plaintiff] ever had, prior to the transaction or thereafter, engaged in the mortgage business, nor did the defendant allege as much. The defendant‘s allegation [in her counterclaim] solely related to an ancillary transaction that was incidental to the [substituted plaintiff‘s] primary real
In the present case, the plaintiff argues that the court improperly followed the reasoning that originated in the District Court‘s decision in Arawana Mills Co. and appeared as dicta in this court‘s decision in McCann. We disagree with the plaintiff‘s assertion that the analysis in
McCann limiting CUTPA to a primary trade or business constituted dicta.5 Rather, it comprised the holding of that case. In McCann, this court took the rare step of using its supervisory powers to reach an issue not presented to the trial court and resolved the case on the basis that CUTPA claims cannot be alleged for activities that are incidental to an entity‘s primary business. McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn. App. 521 n.30. Simply put, this was the express holding of the case, and not dicta as claimed by the plaintiff. Additionally, this rationale also constituted the bases of our subsequent decisions in Sovereign Bank and Biro with respect to the CUTPA issues. Therefore, we conclude that the trial court in the present case properly followed the controlling and applicable precedent when it directed the verdict on the CUTPA count.6
B
The plaintiff also argues that the court improperly raised sua sponte this issue of the applicability of CUTPA. Specifically, it contends that it was improper for the court to raise this matter sua sponte at the conclusion of evidence. We are not persuaded.
As noted previously, while the motion for a directed verdict was pending and during the presentation of evidence, the court asked the parties to submit cases on
We decline to review the merits of this claim. The plaintiff did not object to the procedure used by the court.7 A conclusion that this was improper would amount to an ambush of the trial judge. See State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). “Practice Book § 60-5 provides in relevant part that [t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Indeed, it is the appellant‘s responsibility to present a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily [the appellant] must raise in the trial court the issues that he intends to raise on appeal. . . .
For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge. . . . We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” (Internal quotation marks omitted.) JPMorgan Chase Bank, N.A. v. Georgitseas, 149 Conn. App. 796, 797–98, 89 A.3d 992 (2014); see also Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 265–66, 828 A.2d 64 (2003) (Supreme Court refused to engage in appeal by ambuscade when party failed to first present claim to trial court); Dziedzic v. Pine Island Marina, LLC, 143 Conn. App. 644, 654–55, 72 A.3d 406 (2013) (rules of practice require party, as prerequisite to appellate review, to distinctly raise claim before trial court).
In its brief, the plaintiff maintains that it was improper for the court to raise a new legal theory sua sponte and direct the verdict on that basis. The plaintiff objected six days after the jury had been charged, but did not include a specific challenge to the “primary business theory.”8 Our review of the record reveals
C
The plaintiff‘s final argument challenging the directed verdict is that it presented sufficient evidence to show that the defendant‘s primary trade or business was leasing commercial real estate. Specifically, it argues that the evidence of the defendant‘s worldwide real estate holdings was sufficient for the jury to conclude that its real estate activities constitute an integral part of its business.
In count one of the complaint, the plaintiff alleged that the defendant‘s “principal business is the design, manufacture and overhaul of helicopters and their component parts for military and civilian use.” In count two, the plaintiff incorporated that allegation and further alleged that the defendant “is in the trade or business [of] renting facilities for the use of its various contracts and programs throughout the country and the world.”10
The plaintiff points to the testimony of Mortensen, an employee of the defendant for more than twenty years in its real estate department, that he personally had been involved in office renovations of one million square feet. Mortensen also testified that he inspected the defendant‘s facilities worldwide. The plaintiff also
relies on the testimony from John Luipold, whom it described in its appellate brief as an employee of the defendant.11 Absent from the evidence, however, is the context in which to place this information. There was nothing to show how these real estate activities compared overall with the defendant‘s business. Thus, the evidence presented was insufficient to survive the motion for directed verdict. We conclude that the court properly directed the verdict on the CUTPA count.
II
The plaintiff next claims that the court improperly charged the jury with respect to the plaintiff‘s breach of lease claim. Specifically, it argues that the court improperly (1) failed to charge the jury that
Initially, we identify the relevant legal principles and our well settled standard of review for this claim. “The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [W]e must determine whether the jury instructions gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) Umsteadt v. G. R. Realty, 123 Conn. App. 73, 79, 1 A.3d 243 (2010). We also have stated: “Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury. . . . Our standard of review on this claim is whether it is reasonably probable that the jury was misled.” (Internal quotation marks omitted.) Nikiel v. Turner, 119 Conn. App. 724, 726–27, 989 A.2d 1088 (2010); Beckenstein v. Reid & Riege, P.C., 113 Conn. App. 428, 441, 967 A.2d 513 (2009). We now turn to the specific arguments raised by the plaintiff.
A
The plaintiff first argues that the court improperly failed to charge the jury that any ambiguous or unclear language should be construed against the defendant as the drafter of the third amendment to the lease. The
following additional facts are necessary to review this claim. In its supplemental revised request to charge, dated October 26, 2012, the plaintiff provided the court with separate language to charge the jury if the court determined that the contract was clear and unambiguous, or if it concluded that it was ambiguous. If the contract was determined to be ambiguous, then the plaintiff proposed the following instruction: “When considering how to interpret an ambiguous term you should consider whether the word was introduced into the contract by one of the parties, meaning that they are the ‘draftsman’ of the language. You have also heard evidence that [the defendant] drafted or wrote the contract and amendments. In the case where one party is the author or draftsman, I instruct you that you are to construe the meaning of that contract term against the author of the contract, [the defendant]. In other words, you must give those terms the meaning supported by the evidence which is most favorable to the plaintiff. . . . Again, for example, if the contract were to say ‘the sky is blue’ and the shade of blue which applied was ambiguous, and the party drafting the term construed it to be limited to ‘navy blue,’ you are required to reject his narrow interpretation in favor of a broader view of the term put forth by the other party. In this case word ‘[Court to insert ambiguous term]’ you should therefore construe that term as follows [language to be determined based upon evidence adduced].”
On November 7, 2012, the plaintiff filed a written objection to the court‘s instructions. It argued that the court should have incorporated the plaintiff‘s proposed jury charge. On November 28, 2012, the plaintiff moved to set aside the jury verdict. On March 1, 2013, the court issued a memorandum of decision denying the plaintiff‘s motion. It addressed the plaintiff‘s claim of error relating to the jury instructions. The first claim of error addressed by the court was the plaintiff‘s contention that once the court had determined that certain terms of the contract were ambiguous, it was required to identify those specific terms and instruct the jury that it was to resolve the ambiguity against the defendant as
the drafter of the contract. In rejecting this contention, the court stated: “The difficulty with [the] plaintiff‘s argument in this respect is twofold. First, the premise upon which the plaintiff bases this argument is flawed. The court made no decision or specific finding during the trial that the contract was ambiguous. The fact that a dispute existed over the terms of the contract does not automatically elevate the terms of the contract to the level of ambiguity. It simply means that the parties took and argued different positions as to the meaning of its terms.”12
The court further reasoned that even if the contract contained ambiguous terms, the plaintiff‘s requested instruction regarding construing the ambiguity against the defendant as the drafter did not apply in this case. The plaintiff and the defendant both were sophisticated commercial entities and therefore this was not a situation with uneven bargaining or negotiating power on one side. “Here, the lease need not be interpreted against the drafter as it was not one born of adhesion.” Last, the court concluded that even if the plaintiff‘s instruction should have been given, any such error was harmless. See L‘Homme v. Dept. of Transportation, 72 Conn. App. 64, 71, 805 A.2d 728 (2002).
When the language in a contract is ambiguous, courts construe the ambiguity against the drafter. Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13–14, 938 A.2d 576 (2008); see also Montoya v. Montoya, 280 Conn. 605, 616, 909 A.2d 947 (2006); Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 735, 873 A.2d 898 (2005). This doctrine sometimes is referred to as contra proferentem, and applies when the drafter of the contract has superior knowledge as compared to the other party. See David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 405 n.10, 927 A.2d 832 (2007) (doctrine applies primarily in context of insurance contracts but also in contracts between attorney and client). The doctrine, however, applies only after the court determines that the language in the contract is ambiguous. As the court expressly stated in the memorandum of decision denying the plaintiff‘s motion to set aside the verdict, it did not find the contract to be ambiguous.
The plaintiff‘s appellate brief inaccurately assumes that the court found parts of the contract to be ambiguous. This flaw is fatal to its claims on appeal. While the court did instruct the jury that the parties disputed the meaning of certain terms contained in the contract, and that the jury was to determine whether the contract meant what the plaintiff contended, this is not equivalent to a judicial determination of an ambiguous contract. Our Supreme Court has stated that “[t]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quo-
tation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 264, 14 A.3d 284 (2011).
The plaintiff‘s appellate brief states that with respect to “those words which the court determined as a threshold issue were ambiguous; the court should have instructed the jury on the method by which the jury was to determine how to interpret these words.” It argues that the court‘s instructions were misleading because it instructed the jury as if any or all of the words in the contract might be ambiguous. It then contends that as a result of the ambiguity found by the court, it should have instructed that such ambiguity should be construed against the defendant as the drafter of the contract. Thus, all of these arguments are founded on the plaintiff‘s assertion that the trial court determined that at least parts of the contract were determined to be ambiguous. The record reveals, however, that the trial court never made that threshold determination. It expressly disavowed that notion in the memorandum denying the plaintiff‘s motion to set aside the verdict. Absent that threshold conclusion, the plaintiff‘s appellate arguments must fail.
B
The plaintiff next argues that the court improperly failed to charge the jury regarding the definitions of the terms “fixtures” and/or “removable trade fixtures.” The plaintiff contends that, pursuant to the lease, any improvements made by the defendant became the plaintiff‘s property, and the defendant was permitted to remove only its furniture, equipment and removable trade fixtures. The plaintiff maintains that the court‘s instructions were not detailed sufficiently to instruct the jury properly. We disagree.
The plaintiff filed a request to charge that specifically defined “fixture” and “removable trade fixture.” The plaintiff also requested an instruction that if the jury found that the defendant removed certain items, such as panel walls with wiring, electrical power wires, telecommunication and data closets that served as central routing stations, energy management, telephone, security and fire alarm systems,
The court declined to instruct the jury in accordance with the plaintiff‘s request. Instead it provided the following instruction: “To determine whether the contract means what the plaintiff claims, you must decide whether it was the parties’ intent to so provide. The first place to look to find the parties’ intent is the wording that was used in the contract. Words in a contract are to be given their ordinary meaning. If you cannot
determine what was intended from the language you may consider the circumstances surrounding the entering into the contract or other legal doctrines that I will provide to you in these instructions.”
In its memorandum of decision denying the motion to set aside the verdict, the court noted that “[d]uring the trial there was a significant amount of testimony presented by both parties as to what items were considered fixtures and/or trade fixtures and to whether various items claimed by either party fell into those categories. There were also repeated references to the provisions of the lease containing those terms through both testimony and physical exhibits.” The court further observed that the jury never indicated that they had any difficulty with these terms and that it would not presume confusion or error on the part of the jury.
After reviewing the record and the parties’ briefs, we conclude that the court‘s instructions were proper. The instructions fairly presented the case in such a way that injustice was not done to either party and sufficiently guided the jury. McDermott v. Calvary Baptist Church, 263 Conn. 378, 383–84, 819 A.2d 795 (2003); see also Perez v. Cumba, 138 Conn. App. 351, 366, 51 A.3d 1156, cert. denied, 307 Conn. 935, 56 A.3d 712 (2012). Furthermore, we are not persuaded by the plaintiff‘s unsupported assertion that without instruction of these terms, “the jury did not properly understand the plaintiff‘s claims of damages due to [the defendant‘s] removal or whether [the defendant‘s] claim that it removed only items which it was permitted to under the lease, a necessary predicate finding to the defendant‘s verdict the jury returned.” Put another way, the plaintiff has not established any harm as result of the court‘s instructions. See Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 448, 782 A.2d 87 (2001).
III
The plaintiff‘s final claim is that the court committed harmful error in a number of evidentiary rulings. Specifically, the plaintiff argues that it improperly failed to admit into evidence certain photographs and improperly admitted various letters written by the defendant‘s trial counsel to the plaintiff. We are not persuaded.
As an initial matter, we set forth the legal principles applicable to this claim. “[O]ur standard of review regarding challenges to a trial court‘s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . In reviewing claims that the trial court abused its discretion, great weight is given to the trial court‘s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court‘s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Lappos-tato v. Terk, 143 Conn. App. 384, 401, 71 A.3d 552, cert. denied, 310 Conn. 911, 76 A.3d 627 (2013).
A
We first address the plaintiff‘s claim regarding photographs that the court did not admit into evidence. The plaintiff‘s arguments regarding the photographs may be placed in three categories: (1) The court improperly failed to admit 165 photographs into evidence; (2) the court improperly failed to admit photographs into evidence that depicted red tape with the words “Electrical Line“; and (3) the court improperly failed to admit miscellaneous photographs into evidence for a variety of reasons. We address each in turn.
1
We first address the plaintiff‘s claim regarding 165 photographs and summarize the twisted path these photographs travelled before the court ultimately denied the plaintiff‘s attempt to have them admitted into evidence. Early in the trial, during Peter DiNardo‘s testimony, the plaintiff sought to introduce exhibit 94, a memorandum and spreadsheet created by Mortensen in September, 2007, with attached photographs. This document described a “walk-around” of the property by David Nash, Joseph Sadak, Peter DiNardo and Mortensen. In objecting to this exhibit, the defendant‘s counsel argued that the version of exhibit 94 produced during discovery did not contain color photographs in violation of discovery orders. The court ruled that the black and white photographs would be admitted into evidence as exhibit 94A and that the plaintiff could attempt to introduce the color photographs during Mortensen‘s testimony. The next day, the defendant‘s counsel raised a new objection, arguing that some of the notations contained on the black and white photographs should not be allowed into evidence. After further discussion, the plaintiff‘s counsel agreed to offer the document through Mortensen. After additional colloquy, the court vacated its order admitting exhibit 94A
into evidence.
The defendant‘s counsel then objected to the date being present on the photographs. Specifically, he argued that the date “coached” the witness. The plaintiff‘s counsel countered that the date was placed on the photographs by a paralegal from his law firm who had used the metadata from the digital version of each photograph. He further stated that he was prepared to call the paralegal as a witness to authenticate the date on the printed photographs. The defendant‘s counsel countered that the paralegal was not disclosed as a witness and thus she should not be permitted to testify. The court initially indicated that it would allow the paralegal to testify, but after hearing further argument from the defendant‘s counsel, it stated that DiNardo‘s testimony would proceed and the proceedings would not be “side-tracked” by the paralegal‘s testimony.
Two attempts to solve the evidentiary impasse failed. The defendant‘s counsel, however, raised a new issue with the court. Specifically, he was unable to match the electronic photographs and metadata with the printed photographs marked for identification. He also argued that there was no substantive assurance that the photographs marked for identification were the same ones provided during discovery.14 The plaintiff‘s counsel then suggested that he had a data CD of the photographs sorted by date. From that source, which had some organization of the electronic versions of the photographs, prints could be made without any signatures, although it would take some time to complete. The court suspended the trial until 2 p.m. so that this task could
be completed.15
After the lunch break, the plaintiff‘s counsel reported to the court that a partial list of the printed photographs had been cross referenced to the corresponding identification number of the electronic version. Additionally, a print without any date or signature was made. Mortensen resumed his testimony. The plaintiff‘s counsel showed him exhibit 634. The defendant‘s counsel raised an objection and the court noted that exhibit 634 was what had led the court to suspend the trial earlier that day. The court then ruled: “I think the discussion before was that, essentially, that we were not going to deal with these photographs, but literally deal
On appeal the plaintiff contends that the court should have admitted exhibit 634 into evidence or, in the alternative, should have conditionally admitted that exhibit “subject to the later admission of further facts supporting their relevance.”16 We are not persuaded. As to the latter, we simply note that the plaintiff never requested that exhibit 634 be admitted on a conditional basis. It has not provided us with any law that required the court to do so sua sponte. With respect to the former, the plaintiff proposed the procedure that the court ultimately adopted to resolve the evidentiary dispute over exhibit 634. Rather than follow that course, the plaintiff attempted to question Mortensen regarding exhibit 634 after the parties had agreed to have new photographs printed out without the notations on them. “Our rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. . . . To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) Dockter v. Slowik, 91 Conn. App. 448, 462, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).
2
The plaintiff next argues that the court abused its discretion in not admitting photographs into evidence that depicted red tape with the words “Electrical Line.” The court sustained the defendant‘s objection to these photographs on the basis that the red tape, which had been placed there by electricians as a precaution, was too prejudicial. Specifically, the court stated: “That plastic tape, red in color, certainly would tend to flag, I think, in an ordinary person‘s mind that there may be some issue here, and to that extent it would be prejudi-
cial to the defendant to admit it as it is.”
“[Section] 4-3 of the Connecticut Code of Evidence . . . provides: Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. In this context, unfair prejudice is that which unduly arouse[s] the jury‘s emotions of prejudice, hostility or sympathy . . . or tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence. . . . Section 4-3 also recognizes the court‘s authority to exclude relevant evidence when its probative value is outweighed by factors such as confusion of the issues or misleading the jury . . . .” (Citations omitted; internal quotation marks omitted.) Ancheff v. Hartford Hospital, 260 Conn. 785, 804–805, 799 A.2d 1067 (2002).
The court did not abuse its discretion in determining that the prejudicial impact of these photographs, which depicted red tape, outweighed their probative value. See Farrell v. St. Vincent‘s Hospital, 203 Conn. 554, 563–65, 525 A.2d 954 (1987).
3
The plaintiff next argues that the court improperly failed to admit miscellaneous photographs into evidence for a variety of reasons. Before discussing these additional evidentiary rulings, we iterate our scope of review. “[T]he trial court has broad discretion in ruling on the admissibility of evidence. . . . The determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court. . . . The trial court‘s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court‘s discretion.” (Internal quotation marks omitted.) McNeff v. Vinco, Inc., 59 Conn. App. 698, 701, 757 A.2d 685 (2000). We also note that “[a] photograph offered to prove the appearance of . . . [something] which cannot itself be inspected by the jury must first be proved accurate. The accuracy sufficient for its admission is a preliminary question of fact to be determined by the trial judge. . . . Ordinarily . . . [a photograph] should be substantiated by testimony that it is a correct representation of the conditions it depicts, and in so far as it is properly so authenticated it becomes evidence of those conditions.” (Internal quotation marks omitted.) Madsen v. Gates, 85 Conn. App. 383, 400, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).
After reviewing the record and briefs and considering the arguments of the parties, we conclude that the plaintiff has not shown that it is entitled to a new trial as a result of these evidentiary claims. The court‘s rulings with respect to exhibits 396, 397 (photographs of telephone/data closets taken eighteen months after defendant had vacated premises), 179-K, 179-L (photographs of conditions created by plaintiff) 290, 291 (photographs of cranes taken in 2008), and photographs that depicted wires pulled down from the ceiling by the plaintiff did not constitute an abuse of discretion by the trial court. Additionally, the plaintiff failed to establish that it was harmed by the court‘s decision to not admit exhibit 458 into evidence because exhibit 459, which was admitted into evidence, depicted the same image. We reject, therefore, the plaintiff‘s claims relating to photographs not admitted into evidence.
B
The plaintiff next argues that the court improperly admitted letters written by the defendant‘s counsel into evidence. Specifically, it contends the letters were hearsay and that it should have been permitted to examine the defendant‘s counsel as a witness. We disagree.
The following additional facts are necessary for our discussion. In a letter dated July 7, 2008, the defendant‘s counsel wrote to “Mr. DiNardo” to inform him that all of the defendant‘s obligations under the lease had terminated, and that any future correspondence should be sent to him. Second and third letters, dated July 17, 2008, and August 27, 2008, addressed the issue of electronic monitoring for fire and security of the property.
During the trial, the defendant attempted to introduce the first letter during Peter DiNardo‘s cross-examination. The plaintiff objected on the bases that the letter was not a business record and that it made the defendant‘s counsel a witness.
1
The plaintiff first contends that the court improperly admitted the letters into evidence despite concluding
trine did not apply.17 Even if we assume that the court improperly admitted the letters into evidence, we conclude that any such impropriety was harmless.18
“[E]ven when a trial court‘s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. . . . In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. . . . Finally, the standard in a civil case for determining whether an improper ruling was harmful is whether the . . . ruling [likely] would [have] affect[ed] the result.” (Internal quotation marks omitted.) Hayes v. Camel, supra, 283 Conn. 488; see also Daley v. McClintock, 267 Conn. 399, 403, 838 A.2d 972 (2004). “A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial. . . . Thus, our analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties’ summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Citation omitted; internal quotation marks omitted.) Hayes v. Camel, supra, 489.
The plaintiff‘s brief merely states that these letters were “highly prejudicial” and
2
We now address the plaintiff‘s contention that it was not permitted to call the defendant‘s counsel as a witness for testimony regarding the letters at issue. Its appellate argument ignores the court‘s reasoning for finding that the defendant‘s counsel was not a “necessary witness.” The court had stated: “Now here the letters that have been sought to be introduced by the defendant are ones authored by its own counsel as a representative of the [defendant]. The subject matter of the letters represent the position of [the defendant] relative to the plaintiff‘s claims. Now this information that‘s available through other [of the defendant‘s] representatives, and even the plaintiff himself for that matter, or itself. The information is relevant, it‘s material to the proceedings, and I don‘t believe it would work any
surprise or injustice on the plaintiff if it were to be admitted.”
Rule 3.7 (a) of the Rules of Professional Conduct provides in relevant part: “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless . . . (3) Disqualification of the lawyer would work substantial hardship on the client.” This Rule “codifies what is commonly called the advocate-witness rule, and many cases have considered the application of this rule to determine whether a client may seek testimony from his own lawyer at trial. The rule permits an attorney actively participating in the case to be a witness as to merely formal matters but discourages testimony as to other matters on behalf of his client except when essential to the ends of justice.” (Internal quotation marks omitted.) State v. Thompson, 20 Conn. App. 290, 294, 567 A.2d 837 (1989).
We are persuaded by the analysis in Mettler v. Mettler, 50 Conn. Supp. 357, 360, 928 A.2d 631 (2007), that our first step is a determination of whether the defendant‘s counsel was a necessary witness. “A necessary witness is not just someone with relevant information, however, but someone who has material information that no one else can provide. Whether a witness ought to testify is not alone determined by the fact that he has relevant knowledge or was involved in the transaction at issue. Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary. Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony and availability of other evidence. . . . A party‘s mere declaration of an intention to call opposing counsel as a witness is an insufficient basis for disqualification even if that counsel could give relevant testimony. . . . There is a dual test for necessity. First the proposed testimony must be relevant and material. Second, it must be unobtainable elsewhere.” (Emphasis added; internal quotation marks omitted.) Id., 360; see also Loomis v. Norman Printers’ Supply Co., 81 Conn. 343, 350, 71 A. 358 (1908).
of the Rules of Professional Conduct.
The judgment is affirmed.
In this opinion the other judges concurred.