author: ROBINSON, J.

text:
    BILLBOARDS DIVINITY, LLC v. COMMISSIONER OF TRANSPORTATION ET AL.
    (AC 32860)
    Robinson, Alvord and Espinosa, Js.

      Argued October 27, 2011
    officially released February 7, 2012

      Derek V. Oatis, for the appellant (plaintiff).

      PaulK. Pemerewski, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Billboards Divinity, LLC, which filed the underlying action for a writ of mandamus directing the defendants, the commissioner of transportation (commissioner) and the department of transportation (department), to issue a permit authorizing the plaintiff to erect two billboards on property it owns in Bristol, appeals from the judgment of the trial court granting summary judgment for the defendants. On appeal, the plaintiff claims that the court erred by failing to recognize its nonconforming use of a billboard as a constitutionally protected property right. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the present appeal. In 1949, the state issued permit number 1078 to Murphy Advertising Company, permitting the company to maintain two billboards on a parcel of land in Bristol at Route 72 and Divinity Street (subject property). That portion of Route 72 is a nonlimited access, federal-aid primary highway. The billboards were located within 660 feet of the right-of-way and were visible from the traveled portion of the highway.

In August, 2006, the plaintiff purchased the subject property. At the time of the pinchase, there was an existing lease between the prior owner of the subject property and NextMedia Outdoors, Inc. (NextMedia). NextMedia owned and controlled the billboards on the subject property and was the holder of permit number 1078. The lease, which had been in effect since 1989, automatically renewed each year on June 1, subject to the parties’ right to terminate the lease.

The plaintiff, hoping to secure more lucrative terms, sought to renegotiate the terms of the lease with NextMedia. Those negotiations proved to be unsuccessful, however, and, on November 16, 2006, the plaintiff sent written notice to NextMedia that it intended to terminate the lease. NextMedia, which, under the lease, retained the right to remove the billboards from the subject property, removed the billboards on May 29, 2007.

On August 2, 2007, the department received a letter from NextMedia indicating that it wanted the state to subtract permit number 1078 from the state’s inventory of billboards. The department treated the letter as a request for cancellation of permit number 1078, which the department formally cancelled on August 23, 2007.

On August 24, 2007, the plaintiff filed an application with the department in accordance with § 13a-123-12 of the Regulations of Connecticut State Agencies to erect two new billboards on the subject property, equal in size to the billboards that had been removed by NextMedia. The department denied the plaintiffs application by letter dated September 11, 2007. Along with its application, the plaintiff submitted a determination letter from the city of Bristol’s zoning enforcement officer stating that replacement of the old billboards with new structures was permitted under Bristol’s zoning regulations as a continuation of a nonconforming use. Nevertheless, according to the department’s letter, at the time of the application the subject property was located in a multifamily zone, and the department’s regulations require that any proposed sign be erected on land that is zoned industrial or commercial and in actual use as such. On that basis, the department denied the plaintiffs application. The department later indicated in a separate letter to the plaintiffs counsel that a subsequent field inspection had revealed that the proposed new sign would have been within 100 feet of a park, which also is not permitted by law.

On February 1, 2008, the plaintiff filed the underlying action for a writ of mandamus directing the defendants to approve its permit application. On January 29, 2010, the defendants filed a motion for summary judgment, claiming that there were no genuine issues of material fact in dispute and that they were entitled to judgment as a matter of law. The defendants set forth two arguments in support of their assertion that the plaintiff was not entitled to a writ of mandamus. The defendants first argued that a writ of mandamus was not appropriate because the issuance of a billboard permit is not a ministerial act. Second, the defendants argued that the plaintiff was not entitled to a permit under applicable state and federal laws and regulations. The plaintiff filed an opposition to the motion for summary judgment, arguing that it had a right to continue with a nonconforming use of its property and that NextMedia’s removal of the previous billboards did not extinguish that nonconforming use.

On July 28, 2010, the court issued a written decision granting the defendants’ motion for summary judgment. The court concluded that the new billboards proposed by the plaintiff would not meet state and federal requirements for the continuance of a nonconforming sign and, therefore, the defendants were not required to issue the requested permit. The plaintiff filed a motion to reargue the court’s decision, in which it argued that the “[c]ourt’s decision failed to address the conduct of the [defendants, denying a permit to the [p]laintiff to continue [its] nonconforming use, as violative of the [plaintiffs federal and state constitutional protections.” The court denied the motion to reargue without comment, and this appeal followed.

The plaintiffs brief asserts a single issue on appeal, namely, “[d]id the trial court err in not recognizing [p]laintiff s nonconforming use of a billboard as a constitutionally protected property right and granting summary judgment for the defendants] . . . .” The plaintiff claims that it has a right to the continued use of its property as a site for two billboards and that the defendants were required to issue a permit so it could replace the billboards removed by its former lessee, NextMedia. The defendants argue that the plaintiff failed to raise any constitutional claim to the trial court and that the plaintiff was not entitled to a writ of mandamus, as the court correctly applied federal and state laws and regulations in determining that the proposed billboards did not qualify as a prior nonconforming use. We agree with the defendants and affirm the decision of the court.

We first note that, to the extent that the plaintiff seeks to assert on appeal that the defendants’ denial of its permit application and/or the court’s granting of summary judgment in favor of the defendants on its mandamus action amounted to an unconstitutional taking of property in violation of our federal and state constitutions, we decline to address such claims because the plaintiff did not allege in its complaint a taking or seek just compensation for a taking under the state or federal constitutions, nor did the plaintiff properly raise a constitutional argument in its written opposition to the motion for summary judgment. Further, as the plaintiff itself admits, both in its motion to reargue the motion for summary judgment and in its appellate brief, the court never addressed any constitutional argument in its memorandum of decision, nor is there any indication in the court’s decision that it considered any constitutional issues. Although the plaintiff alluded to a constitutional violation in its motion to reargue the summary judgment motion, the court denied that motion without any comment. The plaintiff never filed a motion for articulation of the court’s decision denying the motion to reargue, nor sought articulation of the court’s decision granting the motion for summary judgment, which would have been the proper means of seeking a ruling on a constitutional claim that the plaintiff believes was overlooked by the court. See, e.g., Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 59 n.38, 970 A.2d 656 (noting appellant’s responsibility “to move for an articulation to clarify the basis of the trial court’s ruling or to ask for a ruling on any overlooked matter”), cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).

As this court repeatedly has stated, we will not review an issue on appeal that was never properly raised in or decided by the trial court. See U.S. Bank National Assn. v. Iaquessa, 132 Conn. App. 812, 814, 34 A.3d 1005 (2012), citing Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by trial court not properly before appellate tribunal); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) (“[ojnly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court”). The plaintiff also has not requested that this court review its unpreserved constitutional claim under Golding or as plain error. See Perriconev. Perricone, 292 Conn. 187, 212 n.24, 217, 972 A.2d 666 (2009); U.S. Bank National Assn. v. Iaquessa, supra, 815-16. Finally, even if we concluded that the plaintiff properly preserved its constitutional claim at trial, the plaintiff has failed to brief that claim adequately. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned.” (Internal quotation marks omitted.) Foster v. Foster, 84 Conn. App. 311, 324, 853 A.2d 588 (2004) (declining to review inadequately briefed federal constitutional claim); see also State v. Sinvil, 270 Conn. 516, 518 n.1, 853 A.2d 105 (2004) (deeming state constitutional claim abandoned because defendant had not provided independent analysis of constitutional issue). The plaintiffs brief fails to provide sufficient analysis to permit review of an alleged constitutional deprivation. Our review therefore is limited to whether the court properly determined that the defendants were entitled to summary judgment as a matter of law on the plaintiffs request for a writ of mandamus.

We next set forth relevant legal principles, including the standard we apply in reviewing the granting of a motion for summary judgment. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citation omitted; internal quotation marks omitted.) Gold v. East Haddam, 290 Conn. 668, 677-78, 966 A.2d 684 (2009). “Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).

“[M]andamus is an extraordinary remedy. It is designed to enforce a plain positive duty. The writ will issue only when the person against whom it is directed is under a clear legal obligation to perform the act compelled and the party seeking the writ has a clear legal right to the performance. ... It, therefore, cannot be invoked to enforce a discretionary act. . . . Mandamus neither gives nor defines rights which one does not already have. ... It acts upon the request of one who has a complete and immediate legal right; it cannot and does not act upon a doubtful and contested right. . . . The plaintiff in an action for a writ of mandamus bears the burden of proving the deprivation of a clear legal right that warrants the imposition of such an extraordinary remedy.” (Internal quotation marks omitted.) Morris v. Congdon, 85 Conn. App. 555, 559, 858 A.2d 279 (2004), rev’d on other grounds, 277 Conn. 565, 893 A.2d 413 (2006). In the present case, therefore, it follows that summary judgment in favor of the defendants on the plaintiffs mandamus action was appropriate if there were no genuine issues of material fact and the plaintiff could not show as a matter of law that it has a clear legal right to the approval of its permit application.

The Highway Beautification Act of 1965, 23 U.S.C. § 131 et seq. (act), was enacted to exert federal control over the erection and maintenance of outdoor advertising signs, displays and devices located within 660 feet of the nearest edge of the right-of-way and visible from the traveled portion of interstate and federal-aid primary highways. 23 U.S.C. § 131 (a) and (b). The act requires states to enter into agreements with the federal government to carry out the provisions and the goals of the act or else risk the loss of a portion of their federal highway funding. 23 U.S.C. § 131 (b). It is undisputed that the subject property on which the plaintiff sought to erect the replacement billboards is located within 660 feet of a federal-aid primary highway and is visible from that highway; therefore, in determining whether the plaintiff had a clear legal right to the issuance of a permit to erect the replacement billboards, we must first look to the relevant provisions of the act.

Section (d) of the act provides: “In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use [as] is to be determined by agreement between the several States and the Secretary, may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and primary systems which are zoned industrial or commercial under authority of State law, or in unzoned commercial or industrial areas as may be determined by agreement between the several States and the Secretary [of Transportation]. The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act. Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority. . . .” 23 U.S.C. § 131 (d). Section (d), therefore, clearly limits the erection of signs falling within the provisions of the act solely to areas that are zoned by state or local authorities for commercial or industrial purposes, leaving determinations regarding size, lighting and spacing of signs to be determined in the individual federal-state agreements.

The federal regulations promulgated in support of the act contain a provision addressing the issue of “nonconforming” signs, which it defines as “a sign which was lawfully erected but does not comply with the provisions of State law or State regulations passed at a later date or later fails to comply with State law or State regulations due to changed conditions. . . .” 23 C.F.R. § 750.707 (b). “Changed conditions include, for example, signs lawfully in existence in commercial areas which at a later date become noncommercial . . . .’’Id. The regulation authorizes each state to include in its agreement with the federal government a so-called “grandfather clause” to allow for the continuation of nonconforming signs. Id., § 750.707 (c). The clause only provides for the continuance of a sign “at its particular location for the duration of its normal life subject to customary maintenance. ...” Id.

The federal regulations also set forth criteria necessary to maintain and continue a nonconforming sign. For example, the sign must remain “substantially the same as it was on the effective date of the State law or regulations. . . .” Id., § 750.707 (d) (5). The regulation authorizes each state to “develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate nonconforming rights.” Id. Further, a nonconforming sign can only continue “as long as it is not destroyed, abandoned, or discontinued. . . .” Id., § 750.707 (d) (6). Again, the regulations leave it to the states to “develop criteria to define destruction, abandonment and discontinuance. . . .” Id., § 750.707 (d) (6) (i).

Connecticut entered into an agreement with the federal government pursuant to the act, which led to the enactment of General Statutes § 13a-123. Section 13a-123 (a) provides in relevant part: “The erection of outdoor advertising structures, signs, displays or devices within six hundred sixty feet of the edge of the right-of-way, the advertising message of which is visible from the main traveled way of any portion of the National System of Interstate and Defense Highways, hereinafter referred to as interstate highways, the primary system of federal-aid highways or other limited access state highways, is prohibited except as otherwise provided in or pursuant to this section . . . .” Section 13a-123 (c) authorizes the commissioner of transportation to “promulgate regulations for the control of outdoor advertising structures, signs, displays and devices along interstate highways, the primary system of federal-aid highways and other limited access state highways. Such regulations shall be as, but not more, restrictive than the controls required by Title I of the Highway Beautification Act of 1965 and any amendments thereto with respect to the interstate and primary systems of federal-aid highways . . . Section 13a-123 (e) provides in relevant part: “Subject to regulations adopted by the commissioner and except as prohibited by state statute, local ordinance or zoning regulation signs, displays and devices may be erected and maintained within six hundred sixty feet of primary and other limited access state highways in areas which are zoned for industrial or commercial use under authority of law . . .

Among the regulations promulgated by the commissioner in accordance with § 13a-123 (d), is a grandfather clause of the type authorized by 23 C.F.R. § 750.707 (c). Section 13a-123-12 of the Regulations of Connecticut State Agencies provides in relevant part that signs legally “erected prior to March 19, 1968, in zoned commercial or industrial areas in actual use . . . may be continued . . . .” The regulation defines “erect” to mean “to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish, but it shall not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign or sign structure.” Id., § 13a-123-2 (b).

Applying the relevant state and federal statutes and regulations to the undisputed facts of the present case, the plaintiffs permit application sought to erect new billboards on. property that currently is zoned for multifamily use. Because, under both federal and state law, billboards can be erected only in an area zoned as industrial or commercial; 23 U.S.C. § 131 (d) and General Statutes § 13a-123 (e); any billboards erected on the subject property clearly would violate provisions of both state and federal laws.

The plaintiff nevertheless argues that the billboards it sought to construct were intended to replace the billboards removed by NextMedia. It is undisputed that the prior billboards legally existed before the enactment of the federal-state agreement and, therefore, would have been permitted to continue as nonconforming signs. The plaintiff believes it has the legal right to replace those signs in order to continue with a nonconforming use of its property. Pursuant to the statutory and regulatory scheme set forth previously, however, the plaintiffs argument has merit only if its erection of new billboards qualifies as “customary maintenance or repair” of the prior nonconforming signs. 23 C.F.R. § 750.707 (d) (5) and (6); Regs., Conn. State Agencies § 13-123-12.

“Customary maintenance and repair” is not defined in the regulations; therefore, the term must be construed according to its commonly approved usage. General Statutes § 1-1 (a). “If a statute , or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) Key Air, Inc. v. Commissioner of Revenue Services, 294 Conn. 225, 235, 983 A.2d 1 (2009). Webster’s Third New International Dictionary (1993) defines “maintenance” as “the labor of keeping something (as buildings or equipment) in a state of repair or efficiency,” and it defines “repair” as “restoration to a state of soundness, efficiency, or health.” The term “maintenance and repair” as used in reference to nonconforming signs logically refers to actions taken to perpetuate or to restore a presently existing sign. Here, NextMedia lawfully removed the existing, nonconforming billboards from the subject property, apparently without protest by the plaintiff, and the permit for those billboards was terminated. There is no indication that the plaintiff sought to have either the billboards or the permit transferred to its control. Thus, rather than seeking to make repairs to or to maintain an existing, nonconforming billboard, the plaintiffs application sought a permit to erect two wholly new signs.

The plaintiff has not provided citations to any cases from Connecticut or other jurisdictions in which a property owner was allowed to replace a nonconforming billboard that was lawfully removed from the property, and our research has not revealed any such cases. By contrast, other jurisdictions have found that once nonconforming signs are removed completely, or they have been repaired substantially or altered in some way, any right to the continuation of the nonconformity terminates. See, e.g., Zanghi v. State, 204 App. Div. 2d 313, 314, 611 N.Y.S.2d 263 (1994) (plaintiff property owner had no clear legal right to erect new billboard to replace nonconforming billboard removed by plaintiffs tenant); Meredith Outdoor Advertising, Inc. v. Iowa Dept. of Transportation, 648 N.W.2d 109, 118 (Iowa 2002) (changes to signs too significant to qualify as customary maintenance so nonconforming use terminated).

Because our plenary review reveals that there are no factual issues in dispute and, as a matter of law, the plaintiff cannot show that it has a clear legal right to the approval of its application to erect new billboards on the subject property, we affirm the court’s decision to render summary judgment in favor of the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       There are no allegations that NextMedia’s removal of the billboards was in anyway tortious or unlawful.

       The trial court file does not contain a copy of the opposition to the motion for summary judgment, but the plaintiff included a copy in the appendix to its reply brief. The court heard argument on the motion for summary judgment on April 12, 2010. The parties did not provide this court with a transcript of that hearing.

         State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       Section 750.707 (c) of title 23 of the Code of Federal Regulations provides: “Grandfather clause. At the option of the State, the agreement may contain a grandfather clause under which criteria relative to size, lighting, and spacing of signs in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way apply only to new signs to be erected after the date specified in the agreement. Any sign lawfully in existence in a commercial or industrial area on such date may remain even though it may not comply with the size, lighting, or spacing criteria. This clause only allows an individual sign at its particular location for the duration of its normal life subject to customary maintenance. Preexisting signs covered by a grandfather clause, which do not comply with the agreement criteria have the status of nonconforming signs.”

       We need not decide at this time whether the complete replacement of a nonconforming sign that was destroyed by accident, natural disaster or foul play would constitute customary maintenance and repair of the destroyed sign so as to permit the continuation of the nonconforming use. See, e.g., Dept. of Transportation v. Keller Development Corp., 122 Ill. App. 3d 1038, 1040, 462 N.E.2d 532 (1984) (complete replacement of nonconforming sign destroyed in windstorm constituted legal repair and did not terminate nonconforming use).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    EMILIO D’ASCANIO ET AL. v. TOYOTA INDUSTRIES CORPORATION ET AL.
    (AC 32361)
    Lavine, Robinson and Bishop, Js.

      Argued November 30, 2011
    officially released February 7, 2012

      Jack G. Steigelfest, for the appellants (plaintiffs).

      PaulD. Williams, with whom were Erick M. Sandler, James E. Hennessey and Patrick W. Schmidt, pro hac vice, for the appellees (defendants).
   Opinion

BISHOP, J.

In this product liability case, the plaintiffs, Emilio D’Ascanio and his wife, Maria D’Ascanio, appeal from the judgment of the trial court directing a verdict in favor of the defendants Toyota Material Handling USA, Inc., BT Prime Mover, Inc., and Summit Handling Systems, Inc. On appeal, the plaintiffs contend that the court abused its discretion in striking testimony presented by their expert witness and precluding him from further testifying. That error, the plaintiffs claim, led the court to improperly direct a verdict in favor of the defendants. We agree with the plaintiffs and, accordingly, reverse the judgment of the trial court.

The following factual and procedural history is relevant to the issue on appeal. On June 14, 2005, the plaintiffs filed this action for damages incurred as a result of serious personal injuries sustained by Emilio D’Ascanio when he was operating an allegedly defective stand-up forklift designed, manufactured and distributed by the defendants. The plaintiffs alleged that defects in the forklift’s steeling system and its electronic control display proximately caused Emilio D’Ascanio’s injuries. The court bifurcated the trial of the case, commencing with the presentation of evidence on the issue of liability.

The plaintiffs began their case by presenting the testimony of Daryl Ebersole, an engineer whom they had disclosed as their expert witness on the issue of whether the forklift in question was defective. After Ebersole had testified for the majority of the first day of trial, the plaintiffs sought to introduce into evidence a videotape that depicted a Toyota forklift with an electronic directional display system. The defendants objected to the admission of the videotape, and, in response, the court excused the jury to hear the arguments of counsel. The defendants objected first on the basis that they were unaware of any videotape involving the exact model of forklift at issue in this case. In response, the plaintiffs’ counsel asked Ebersole: “[H]ave you reviewed any video by any defendant in this action which portrays a directional control indicator as a [safety]-related device?” In an attempt to resolve the confusion of the court and the defendants’ counsel as to what the videotape actually portrayed, the plaintiffs’ counsel stated: “[M]y point being is it’s the same person that puts the name on the truck — they’re claiming that this directional control indicator on — same manufacturers is a safety-related device, and it does the same thing. It may look different but it does the same job.” In an attempt to further lay a foundation for the exhibit, the plaintiffs’ counsel asked Ebersole: “Have you seen a video by any defendant — by Toyota Material Handling that shows a directional control indicator on one of its vehicles and they’ve portrayed it as a safety device?” Ebersole indicated that he had seen such a videotape and that he had obtained it from “a Toyota Web site.” He indicated that, although the directional control indicator and steering wheel might look different from those on the forklift at issue in the present case, they served the same safety purpose. The defendants’ counsel then undertook his voir dire examination of Ebersole. He began by asking Ebersole: “[W]hat model Toyota is shown in the video?” Ebersole indicated that he believed it was a “six series” but that he was not certain exactly which model it was. The plaintiffs’ counsel then asked Ebersole about the number of indicator lights on the model in the videotape, and a discussion ensued between counsel and the court as to the contrast between the number of indicator lights on that model and the model at issue in the case before the jury. The defendants’ counsel voiced various further objections as to foundation, and, in response, the plaintiffs’ counsel offered the defendants’ counsel the opportunity to view the videotape. The defendants’ counsel did not avail himself of that offer, and the court overruled the objection and admitted the videotape into evidence.

The videotape was first played for the jury and the court without commentary by Ebersole. The defendants’ counsel did not raise any further objection to the videotape at that time. The videotape was then played a second time with Ebersole explaining what it depicted. The defendants’ counsel objected only to any “editorial comment” by Ebersole. The court sustained the objection, and the remainder of the videotape was played for the jury again with Ebersole intermittently pausing the tape and explaining what it depicted. After the videotape had been played for the jury for the second time, the plaintiffs’ counsel suggested that it be played one more time, a third time, straight through, without any narration or commentary. At that point, the defendants’ counsel asked to approach the court. The court dismissed the jury for the weekend, and the defendants’ counsel objected to the admission of the videotape. The thrust of the defendants’ objection was that the forklift portrayed in the videotape was not the same model that was involved in this case, and the two forklifts did not have the same displays. The court agreed that it, too, thought that the videotape was going to depict the same control system and indicated that it assumed that the jury shared that understanding. The court indicated that, when the jury reconvened, it would strike the exhibit and instruct the jury that it should be disregarded on the ground that it “is not a video which involves the model truck which is involved in this accident . . . .” Although the defendants’ counsel accepted the court’s ruling, further colloquy followed regarding the origin of the videotape, specifically regarding the date that the truck depicted in the videotape was manufactured. The plaintiffs’ counsel indicated that he would attempt to obtain that information, and court adjourned for the weekend.

By the time court reconvened on the following Tuesday, May 25, 2010, the defendants had filed a motion for a mistrial on the ground that Ebersole and the plaintiffs’ counsel intentionally misled the jury and the court in their efforts to admit the videotape into evidence. The court questioned both the plaintiffs’ counsel and Ebersole as to when they knew that the forklift in the videotape did not depict the model forklift that was the subject of the present litigation. The court also inquired as to the time of the making of the videotape. Following lengthy argument, the court ruled that both the videotape and Ebersole were “out of the case,” striking the testimony that he had already given and precluding him from testifying farther.

Subsequently, on May 28, 2010, the plaintiffs filed a motion for a continuance to allow them to disclose another liability expert. On that same date, the plaintiffs also filed a motion for a mistrial on the ground that they could no longer proceed with their cause of action without a liability expert. On June 1, 2010, the court issued a memorandum of decision denying the plaintiffs’ motions. In explaining its decision to strike the testimony, and to preclude further testimony of Ebersole, the court found that “Ebersole’s behavior was motivated by a desire to hide critical facts about the evidence in question and was therefore deceptive” and that such evidence “certainly would have been prejudicial to the defendants.” The court concluded that a mistrial would not have been an appropriate remedy because it would “excuse . . . Ebersole from the consequences of his behavior. If this trial had to be put on all over again . . . Ebersole could conceivably be replaced, and the plaintiffs would get the equivalent of a judicial ‘do-over.’ ” The court concluded that a curative instruction would “not do enough to undo the harm done here.” Finally, the court concluded that: “When a witness whom the court has qualified as an expert demonstrates, as . . . Ebersole has, that his testimony cannot be relied on to be honest and complete, the testimony should not be permitted.” The court found that the “available alternative relief was simply not severe enough, under the circumstances, to address this witness’ behavior.” The court summarily denied the plaintiffs’ motion for a continuance of the trial to allow them to disclose another liability expert.

The plaintiffs continued with their case without a liability expert. At the end of the plaintiffs’ case, the defendants moved for a directed verdict on the basis that the plaintiffs had not presented expert testimony that the forklift at issue was defective. The court agreed and granted the defendants’ motion for a directed verdict. This appeal followed.

We begin our analysis with an overview of pertinent decisional law. “[A]part from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules.” (Internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 234, 963 A.2d 943 (2009). “The court’s decision on whether to impose the sanction of excluding [an] expert’s testimony ... is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Id., 233. “In reviewing a claim of abuse of discretion, we have stated that [discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. . . . Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.” (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371, 392-93, 3 A.3d 892 (2010).

Putting aside the issue of whether Ebersole did intentionally or deceptively mislead the court and the jury in the plaintiffs’ attempts to admit the videotape into evidence, or whether the court simply misconstrued the thrust of the proffer, we examine whether the court properly sanctioned the plaintiffs by striking all of Ebersole’s prior testimony and precluding him from testifying further on any area other than the videotape. In making this assessment, we are mindful that there was no claim by the defendants, and the court did not make a finding, that any of Ebersole’s testimony leading up to the videotape was false, misleading or deceptive. Thus, there was no nexus between the court’s finding of deception regarding the videotape and Ebersole’s earlier testimony that was unrelated to the videotape. The court could have, as it was first inclined, merely stricken the videotape and instructed the jury to disregard it. Such a curative instruction, coupled with an explicit explanation that the videotape did not portray the same forklift or reflect the same display as the forklift at issue, likely would have minimized any prejudicial impact the videotape may have had on the jury. Further, if the defendants had an issue with Ebersole’s credibility, such a concern would have been fodder for zealous cross-examination. Because it is axiomatic that the issue of credibility is solely within the province of the fact finder, and not the court, the jury could have chosen to disregard Ebersole’s testimony in part or in whole. The court’s ruling striking Ebersole’s testimony and precluding his further testimony effectively ended the plaintiffs’ case, resulting in a directed verdict. Such a drastic sanction should have been utilized only as a last resort.

Even if the court were inclined to prevent any of Ebersole’s testimony from being considered by the jury, the court could have imposed the lesser sanction of precluding his testimony with the granting of a mistrial. The court, however, declined to order a mistrial on the basis that it would give the plaintiffs a second chance in spite of the lack of any finding by the court, or support in the record, that the plaintiffs or their counsel were complicit in Ebersole’s behavior that the court characterized as deceptive or extreme sloppiness. In sum, the court’s sanction of precluding the plaintiffs from presenting any expert testimony as to the existence of a defect was not proportionate to Ebersole’s purported offense and was not consistent with “the judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.) Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000).

On the basis of the foregoing, we conclude that the court improperly struck Ebersole’s testimony, improperly precluded him from testifying further and, having taken such action, improperly denied the plaintiffs a reasonable opportunity to present their claim. Because the court directed a verdict in favor of the defendants on the basis of the plaintiffs’ failure to present expert testimony as to the defective nature of the forklift at issue, and the plaintiffs’ failure to adduce expert testimony was a direct result of the court’s incorrect preclusive orders, the court’s judgment directing a verdict in favor of the defendants cannot stand.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Wiremold Company, the employer of Emilio D’Ascanio, filed an intervening complaint in this action but is not a party to this appeal. Therefore, we refer to Emilio D'Ascanio and Maria D’Ascanio as the plaintiffs in this opinion.

       On January 24, 2006, the action was withdrawn as to the named defendant, Toyota Industries Corporation, and the defendants Toyota Equipment Manufacturing, Inc., and Toyota Industries North America, Inc. We therefore refer in this opinion to Toyota Material Handling USA, Inc., BT Prime Mover, Inc., and Summit Handling Systems, Inc., as the defendants.

       The plaintiffs’ counsel indicated that the defendants’ counsel had seen the videotape at an earlier deposition. The defendants’ counsel did not dispute that statement and later indicated that he had “not recently . . . look[ed] at that video,” and he thought that “it was something different than what was put up on the screen.” It is not apparent from the record why the defendants’ counsel did not take the opportunity to examine the videotape before allowing it to be shown to the jury.

       In objecting, the defendants’ counsel acknowledged: “I will say up front, shame on me because I did not know ... I did not recently — I—you know, recently look at that video. I thought it was something different than what was put up on the screen. And that’s my fault. I should have had him put it up while we were doing the argument before.” If the defendants’ counsel had accepted the offer of the plaintiffs’ counsel to preview the videotape that was being introduced as a full trial exhibit and that was going to be shown to the jury, or if the defendants’ counsel had objected to the videotape upon seeing that it was not the same model that the jury was being asked to consider in this case and upon hearing Ebersole’s acknowledgements and those of the plaintiff’s counsel that the videotape did not portray the same model as the one involved in the accident, the prejudice, if any, that was caused by the admission of this exhibit, could have been avoided.

       Specifically, the defendants filed a “Motion for a Mistrial and Monetary Sanctions or, in the Alternative, for an Order Barring and Striking Daryl Ebersole’s Testimony, or, in the Alternative, a Curative Instruction Regarding Plaintiffs’ Exhibit No. 69.”

       Specifically, the court stated: “It is clear to the court from the additional evidence presented this morning that the presentation of exhibit number 69 last week involved one of two things, either deception or extreme sloppiness. If I had known then what I have since learned about this video and the testimony by Mr. Ebersole in support of this video, before it got shown, before Mr. Ebersole testified in support of it, it would not have been admitted into evidence. The reason it was not admitted into evidence — it was admitted into evidence was because the court was not advised of some very important things.
      “This video is out of the case. And given the gaps between what Mr. Ebersole said in testimony and what reality turns out to be, I have come to the unfortunate conclusion that Mr. Ebersole is out of the case. I’m striking his testimony; he is no longer involved in this case as an expert witness. And I will instruct the jury accordingly; that they are to act and think as if his testimony never happened.
      “I’m not declaring a mistrial. I’m not imposing any financial sanctions at this time. But I am going to inform the jury, after I take a brief recess to consider my remarks carefully, that I — they’re not going to be hearing anymore from Mr. Ebersole.”

       In its memorandum of decision, the court, consistent with our review of the record of the proceedings, noted that the defendants initially objected to the introduction of the videotape “because the vehicle shown in the video was clearly not the model 6BRU18 reach truck at issue in this case. After argument outside the presence of the jury, the court found that the differences between vehicles went to weight instead of admissibility and overruled the defendants’ objection.” When the defendants’ counsel later objected to the videotape, after it had already been shown to the jury twice, the argument was presented that the control systems on the two vehicles were not the same. From our reading of the record, it is apparent that neither the plaintiffs’ counsel nor Ebersole claimed that the forklift depicted in the videotape or the electronic display system were identical in model or display format to the forklift at issue. The plaintiffs consistently argued that the probative value of the videotape was that it depicted Toyota as touting the electronic directional system as a safety device.

       In granting the defendants’ motion for a directed verdict, the court agreed with the defendants that the case was controlled by the modified consumer expectation test, rather than the traditional consumer expectation test, and, therefore, the plaintiffs required expert opinion evidence in order to meet their burden of proof regarding any claimed defect in the forklift. The plaintiffs argued that the traditional consumer expectation test governed and that the question of the existence of a defect was one for the jury without the need for expert opinion. The plaintiffs argue on appeal that the court erred in applying the modified consumer expectation test and, therefore, improperly directed a verdict in favor of the defendants. Because we conclude that the court improperly granted the motion for a directed verdict in favor of the defendants on the ground that it erred in striking all of Ebersole’s testimony, and precluding any further testimony from him, and the issue may not arise on retrial, it is unnecessary for us to address the issue of which test applies to the issues in this case.

       Essentially, the defendants contend that the court has a general gatekeeping function that “requires it to scrutinize proffered expert testimony of dubious reliability.” (Internal quotation marks omitted.) In support of that assertion, the defendants cite to State v. Porter, 241 Conn. 57, 62-66, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Those cases, however, involve scientific reliability, not questions of credibility. As the plaintiffs aptly note, “evidence, neither scientifically obscure nor instilled with an aura of mystic infallibility . . . which merely places a jury ... in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge ... is not the type of scientific evidence within the contemplation of Porter . . . .” (Citations omitted; internal quotation marks omitted.), quoting Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 170 n.22, 847 A.2d 978 (2004). Thus, Porter and its kin are inapposite to the issue at hand.

       At oral argument before this court, the defendants repeatedly refer to the trial court’s finding that Ebersole “manufactured evidence.” The trial court did not make, and the record does not support, such a finding.

       Ebersole was the plaintiffs’ leadoff witness, and he testified extensively before the plaintiffs sought to introduce the videotape into evidence through him. He initially testified regarding his credentials, leading the court to qualify him as an expert witness, and his testimony included opinion evidence. He testified in detail regarding the characteristics of the forklift at issue, with a particular focus on its features and functions. He explained differences between the forklift in this case and other forklifts, specifically focusing on steering mechanisms and control indicators. Additionally, Ebersole emphasized the safety functions of the control mechanisms in forklifts.


author: BORDEN, J.

text:
    J. WILLIAM GAGNE, JR. v. ENRICO VACCARO
    (AC 32247)
    (AC 32830)
    Gruendel, Robinson and Borden, Js.
    Argued November 14, 2011
    officially released February 7, 2012

      Eugene A. Skowronski, for the appellant (defendant).

      Peter A. Ventre, for the appellee (plaintiff).
   Opinion

BORDEN, J.

In this consolidated appeal, the defendant, Enrico Vaccaro, appeals from an April 14, 2010 judgment in which the trial court awarded the plaintiff, J. William Gagne, Jr., attorney’s fees, and from a September 30, 2010 judgment in which the court found the defendant in contempt. On appeal, the defendant claims that the court improperly (1) failed to recuse itself as required by General Statutes § 51-183C, (2) denied discovery as to attorney’s fees, (3) imposed interest and (4) held the defendant in contempt without a hearing. We agree with the defendant in regard to his first claim and, accordingly, reverse the judgments of the trial court.

This appeal has a very lengthy and complicated genealogy. In 2005, the plaintiff commenced the underlying action seeking foreclosure of a judgment lien held against property owned by the defendant. The plaintiff obtained the judgment hen as the result of a protracted dispute between the parties as to the plaintiffs entitlement to attorney’s fees from a separate action. See Gagne v. Vaccaro, 80 Conn. App. 436, 438-39, 835 A.2d 491 (2003), cert. denied, 268 Conn. 290, 846 A.2d 881 (2004).

On May 5,2005, the defendant filed an answer, special defenses and a counterclaim. The plaintiff filed a motion for summary judgment as to liability only, which the court granted. On December 21, 2005, the defendant appealed from the summary judgment, but the appeal was dismissed both for lack of a final judgment and because the defendant’s appeal as to his counterclaim was frivolous. Our Supreme Court denied the defendant’s petition for certification to appeal. See Gagne v. Vaccaro, 278 Conn. 924, 901 A.2d 1220 (2006).

On May 31, 2006, the plaintiff filed a motion for appellate attorney’s fees incurred in connection with the first appeal. On July 14, 2006, the plaintiff filed a preemptive motion to terminate any appellate stay that might arise if the defendant filed another appeal, arguing that any appeal would be without merit and merely for purposes of delay. On July 26, 2006, the court granted the motion to terminate a stay, rendered a judgment of strict foreclosure on the plaintiffs judgment lien, and awarded the plaintiff attorney’s fees for the defendant’s first appeal and for the foreclosure. On August 10, 2006, the defendant filed a motion to reargue and for reconsideration, which the court denied on August 14, 2006.

The defendant filed a second appeal on August 30, 2006, from the judgment of strict foreclosure. On April 29, 2008, this court affirmed the trial court’s judgment. See Gagne v. Vaccaro, 107 Conn. App. 905, 945 A.2d 1071 (2008). On May 28,2008, the plaintiff filed amotion for appellate attorney’s fees incurred in responding to the defendant’s second appeal. On June 16, 2008, the defendant filed a motion to dismiss the plaintiffs motion for attorney’s fees or, in the alternative, an objection to the motion for attorney’s fees. On September 3, 2008, the court, Hon. Anthony V. DeMayo, judge trial referee, granted the plaintiffs motion for appellate attorney’s fees incurred in the defendant’s second appeal. On September 18, 2008, the defendant filed a motion to reargue and for reconsideration of the award of attorney’s fees, which the court denied.

The defendant filed his third appeal in this matter on October 10, 2008, from the trial court’s award of attorney’s fees. On December 8, 2009, this court affirmed in part and reversed in part the trial court’s September 3, 2008 judgment awarding the plaintiff appellate attorney’s fees. See Gagne v. Vaccaro, 118 Conn. App. 367, 984 A.2d 1084 (2009). This court held that the trial court had the authority, pursuant to General Statutes § 52-249, to award appellate attorney’s fees but that the court should have held an evidentiary hearing as to the reasonableness of the fees. Id., 371-73. This court thus reversed the judgment in part and remanded the matter as to the award of attorney’s fees, with direction to conduct a hearing as to the reasonableness of the plaintiffs requested fees. Id., 373.

The present appeal concerns the matters which occurred following this court’s remand to the trial court in December, 2009. Following this court’s remand, the plaintiff filed a motion for appellate attorney’s fees incurred in responding to the defendant’s third appeal and a motion for an order that the hearing ordered by this court would occur at the same time as the hearing on his most recent motion for attorney’s fees. The defendant filed objections to the plaintiffs motions for appellate attorney’s fees in connection with the second and third appeals. In addition, the defendant filed a deposition notice and a subpoena seeking the production of numerous documents from the plaintiffs attorney. On March 9, 2010, the court granted the plaintiffs motions for a protective order and to quash the subpoena, and the court overruled the defendant’s objection thereto.

Thereafter, on March 18, 2010, the defendant filed a motion to disqualify the trial court, Hon. Anthony V. DeMayo, judge trial referee, from hearing the plaintiffs motions for appellate attorney’s fees. The defendant argued that Judge DeMayo should disqualify himself because this court had reversed, in part, the earlier judgment rendered by him, namely, the September 3, 2008 judgment awarding appellate attorney’s fees and that, therefore, § 51-183c required that he not hear the case on remand. The defendant also filed a motion for a continuance of that hearing based on his filing of the motion to disqualify. On March 23, 2010, Judge DeMayo denied the defendant’s motion to disqualify and held a hearing on the plaintiffs motions for appellate attorney’s fees incurred in the defendant’s second and third appeals. On April 14,2010, Judge DeMayo issued a memorandum of decision awarding the plaintiff $16,980 in appellate attorney’s fees for the defendant’s second appeal and $9860 for the third appeal. This appeal followed.

The defendant claims that Judge DeMayo improperly refused to recuse himself in violation of § 51-183c. More specifically, the defendant argues that, because Judge DeMayo had originally rendered judgment on the motion for appellate attorney’s fees, after this court reversed that judgment and remanded the case, he was required to recuse himself pursuant to § 51-183c. We agree.

Our review of whether a court properly denied a motion for recusal is ordinarily based on an abuse of discretion standard. See Bonelli v. Bonelli, 214 Conn. 14, 22, 570 A.2d 189 (1990). In the present case, however, the question of whether § 51-183c requires recusal in this situation presents a question of statutory interpretation. Therefore, our scope of review is plenary. See Marandino v. Prometheus Pharmacy, 294 Conn. 564, 574, 986 A.2d 1023 (2010).

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 825, 14 A.3d 982 (2011).

In accordance with § 1-2z, we begin with the text of § 51-183c which provides: “No judge of any court who tried a case without a jury in which a new trial is granted, or in which the judgment is reversed by the Supreme Court, may again try the case. No judge of any court who presided over any jury trial, either in a civil or criminal case, in which a new trial is granted, may again preside at the trial of the case.” General Statutes § 51-183c.

The language of § 51-183c is clear and unambiguous. The statute explicitly prohibits a judge who tries a case that is thereafter reversed to try the case on remand. There is no reasonable manner in which the language of the statute can be interpreted to yield a different result. Indeed, the plaintiff does not offer a plausible alternative meaning, and does not claim that the plain language of the statute yields an absurd or unworkable result. Nor does the plaintiff claim that the defendant waived the application of § 51-183c.

Furthermore, although our case law concerning §51-183c is limited, it supports the application of the statute in the present case. In Rosato v. Rosato, 255 Conn. 412, 414, 766 A.2d 429 (2001), the defendant filed a motion for clarification of an order issued in a dissolution of marriage proceeding, providing that the defendant was to retain any benefits in her former husband’s pension plan. The court required the former husband to pay 55 percent of his pension benefits to the defendant, and he appealed. Id., 415. This court reversed the order, and the defendant filed a petition for certification to appeal, which was granted. Id., 415, 418. The Supreme Court held that a remand to the trial court was required for determinations as to whether the former husband’s pension benefits vested and, if they vested, when they vested. Id., 424-25. In making that decision, the Supreme Court explicitly stated that, to comply with § 51-183c, the remand for a new hearing on the financial orders would necessarily be before a different trial court than that which issued both the original order and the clarification. Id., 425 n.18.

In Higgins v. Karp, 239 Conn. 802, 804-805, 687 A.2d 539 (1997), the administratrix of the estate of a passenger who was killed in an airplane crash brought a wrongful death action against the administrator of one of the pilots’ estate. After a default was entered against the administrator for failure to plead, and after his motion to set aside the default against him was denied, he appealed. Id., 806-807. The denial of that motion was reversed and remanded on the ground that the trial court considered irrelevant evidence in refusing to set aside the default. Id., 810-11. Our Supreme Court, in accordance with § 51-183c, ordered that the matter be assigned to a judge other than the judge who originally had decided the motion. See Higgins v. Karp, 243 Conn. 495, 500 n.7, 706 A.2d 1 (1998).

In Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 779 A.2d 174 (2001), this court considered an appeal from a foreclosure action that previously had been remanded by our Supreme Court. In affirming the decision, this court made a point to note that, pursuant to § 51-183c, a different judge had heard the case on remand, who had no prior exposure to the case. Id., 835 n.4.

The plaintiff argues that the trial judge whose ruling was appealed was the proper judge to conduct the hearing on remand despite the language of § 51-183c. To support that position the plaintiff cites to Tracey v. Tracey, 97 Conn. App. 278, 283, 903 A.2d 679 (2006). In Tracey, this court discussed how our appellate cases are replete with situations in which the same trial judge rendered judgment and then ruled on a subsequent motion. Id., 282-83. Tracey, however, involved a judge who rendered judgment in a divorce proceeding and then also ruled on a postjudgment motion for attorney’s fees. It did not involve an appellate remand after reversal of the trial court, which is the type of case governed by § 51-183c.

On the basis of our interpretation of § 51-183c and case law that has applied it, we conclude that § 51-183c is applicable in the present case and was not properly followed. As noted previously, on September 3, 2008, Judge DeMayo rendered judgment on the plaintiffs motion for attorney’s fees. Thereafter, the defendant appealed from that judgment and this court reversed the judgment and remanded the matter for further proceedings. On remand, a different judge should have presided over the case, as requested by the defendant.

The judgments are reversed and the case is remanded for a new hearing on the plaintiffs motion for appellate attorney’s fees, discovery objections and motion for contempt.

In this opinion the other judges concurred.

       General Statutes § 51-183c provides: “No judge of any court who tried a case without a jury in which anew trial is granted, or in which the judgment is reversed by the Supreme Court, may again try the case. No judge of any court who presided over any jury trial, either in a civil or criminal case, in which a new trial is granted, may again preside at the trial of the case.”

       Because we agree with the defendant’s first claim, we need not reach the merits of his subsequent claims. The defendant’s other claims all emanate from rulings that resulted from the same trial court improperly presiding over the motion for appellate attorney’s fees on remand. By way of relief, a different trial judge necessarily will hear the plaintiffs motion for appellate attorney’s fees, discovery objections and motion for contempt.

       The plaintiff sought $16,980 for 84.9 hours billed at $200 per hour by his attorney for time spent on the defendant’s second appeal.

       In tliis connection, we note that the defendant did not raise the applicability of § 51-183c at the time that the trial court ruled on the plaintiffs motions for a protective order and to quash the subpoena, regarding the defendant’s attempt to depose the plaintiffs attorney. Ordinarily, this would constitute a waiver of the applicability of the statute as to those matters. In the present case, however, because the question of whether the defendant should be permitted to depose the plaintiffs attorney is so closely related to the central question on remand, namely, the reasonableness of the plaintiffs attorney’s fees, we think that the judge who decides that issue should decide all of the related issues. We therefore decline to invoke the waiver doctrine and leave the discovery questions to the appropriate court on remand, along with the other issues.


author: PER CURIAM.

text:
    MATTHEW WEATHERS v. COMMISSIONER OF CORRECTION
    (AC 31994)
    Robinson, Alvord and Espinosa, Js.
    Argued October 27, 2011
    officially released February 7, 2012

      Annacarina Jacob, senior assistant public defender, for the appellant (petitioner).

      Jo Anne Sulik, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Adam Scott, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Matthew Weathers, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly failed to conclude that his trial counsel rendered ineffective assistance. We affirm the judgment of the habeas court.

The following procedural history is relevant to our resolution of the present appeal. On July 16, 2004, the petitioner was arrested and charged under docket number CR-04-194735-S with criminal mischief and possession of a weapon in a motor vehicle. The court set bond at $75,000, and the petitioner was incarcerated in lieu of bond while he awaited trial. Ninety-seven days later, on October 20, 2004, while still in pretrial custody, the petitioner was arrested by virtue of an arrest warrant for multiple criminal offenses under various other docket numbers (CR-04-196151-S, CR-04-196152-S, CR-04-196153-S, CR-04-196154-S). The petitioner remained incarcerated awaiting trial. On March 23,2005, pursuant to a plea agreement with the state, the petitioner pleaded guilty under the Alford doctrine in docket number CR-04-196151-S to burglary in the third degree, in docket number CR-04-196152-S to burglary in the third degree and in docket number CR-04-196154-S to burglary in the second degree and two counts of credit card theft. At a sentencing hearing on May 18, 2005, the court imposed a total effective sentence of ten years incarceration for these offenses. The state entered a nolle prosequi as to the criminal charges brought under docket numbers CR-04-194735-S and CR-04-196153-S.

By way of a second amended petition for a writ of habeas corpus, the petitioner alleged, in relevant part, that his trial counsel, Delice Ferrara, rendered ineffective assistance because, at the time of sentencing, “[t]rial counsel failed to request that the judge either credit the petitioner’s sentence with [ninety-seven] days of jail credit, or to impose a sentence of [ten] years less [ninety-seven] days, in order to ensure that the petitioner receive consideration for the [ninety-seven] days that he was in the care and custody of the department of correction awaiting resolution of his pending charges.”

In February, 2010, the habeas court conducted an evidentiary hearing related to the petition. At the conclusion of the hearing, after the court heard argument from counsel for the petitioner and counsel for the respondent, the commissioner of correction, the court issued an oral ruling denying the petition. The court concluded that the petitioner failed to demonstrate that Ferrara’s failure to seek sentencing credit for the ninety-seven days of pretrial incarceration under docket number CR-04-194735-S constituted deficient performance. Also, the court concluded that the petitioner failed to demonstrate that he was prejudiced by Ferrara’s conduct in this regard. Essentially, the court found that a sentencing court would not necessarily have afforded such credit in these circumstances, even if a request to do so had been made by the petitioner. Subsequently, the court granted the petitioner’s petition for certification to appeal. See General Statutes § 52-470 (b).

To prevail on a claim of ineffective assistance of counsel, the petitioner bears the burden of demonstrating that his attorney’s representation was “not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Ham v. Commissioner of Correction, 301 Conn. 697, 703-704, 23 A.3d 682 (2011).

“Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 128 Conn. App. 564, 569, 17 A.3d 539, cert. denied, 301 Conn. 925, 22 A.3d 1278 (2011).

The petitioner recognizes that under General Statutes § 18-98d (a), which governs presentence confinement credit, he was not entitled to credit for the ninety-seven days of jail time served prior to being charged with the offenses for which he was convicted and sentenced. Indeed, our Supreme Court has held that “our legislature has not intended to authorize the transfer of jail time credits accrued while in pretrial confinement under one offense to the sentence thereafter imposed upon conviction for another offense.” Payton v. Albert, 209 Conn. 23, 31-32, 547 A.2d 1 (1988), overruled in part on other grounds by Rivera v. Commissioner of Correction, 254 Conn. 214, 255 n.44, 756 A.2d 1264 (2000). Likewise, the petitioner acknowledges that it is “axiomatic that a petitioner cannot receive presentence confinement credit for confinement that predates the arrest on the charges for which he wants the confinement to be credited.” Borrelli v. Commissioner of Correction, 113 Conn. App. 805, 819, 968 A.2d 439 (2009).

Nevertheless, the petitioner argues that Ferrara was deficient for not asking the sentencing court, in exercising its discretionary authority, to take into consideration that he had been confined for ninety-seven days under one of the docket numbers that was a subject of his plea agreement with the state, although that docket number was not one under which he ultimately was convicted and sentenced. Surely, as the petitioner suggests, counsel might have asked the court to take into consideration the pretrial jail time served under a related docket number, just as she might have asked the court to take into consideration a variety of other facts. In light of the authority discussed previously, however, we do not conclude that the failure to do so in any way reflected representation that was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. The petitioner has not demonstrated that effective representation requires that an attorney, at the time of sentencing, ask for every conceivable type of sentencing consideration, including credit to which he lacks any entitlement by operation of law.

Although our conclusion that the petitioner did not prove that Ferrara rendered ineffective assistance is a sufficient basis on which to affirm the court’s judgment, we also conclude, in light of the authority discussed previously, that the petitioner has not demonstrated a reasonable probability that, had Ferrara asked for such consideration, the petitioner’s sentence would have been any more favorable to him. We recognize that the sentencing court has “very broad discretion” in fashioning an appropriate sentence. (Internal quotation marks omitted.) State v. Eric M., 271 Conn. 641, 649, 858 A.2d 767 (2004). Nonetheless, the mere possibility that the court might have imposed a more lenient sentence on account of this pretrial incarceration does not amount to a reasonable probability that it would have done so.

The judgment is affirmed.

       See North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S. Ct 160, 27 L. Ed. 2d 162 (1970).


text:
    SUNSET GOLD REALTY, LLC v. PREMIER BUILDING AND DEVELOPMENT, INC., ET AL.
    (AC 32745)
    Beach, Bishop and Mihalakos, Js.

      Argued October 14, 2011-
    officially released February 14, 2012

      Robert G. Golger, for the appellants (defendants).

      Thomas T. Lonardo, with whom were Eugene A. Marconi and, on the brief, Colin P. Mahon, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendants, Premier Building & Development, Inc. (Premier Building) and Cobblestone Associates, LLC (Cobblestone), appeal from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiff, Sunset Gold Realty, LLC (Sunset Realty). On appeal, Premier Building and Cobblestone claim that the court (1) improperly found that Sunset Realty had procured a ready, willing and able tenant under the terms of its listing agreement with Premier Building, and Cobblestone claims that the court (2) improperly rendered judgment against it even though it was not a party to the listing agreement between Sunset Realty and Premier Building. We disagree and, accordingly, affirm the judgment of the trial court.

The relevant factual and procedural history is set forth in Sunset Gold Realty, LLC v. Premier Building & Development, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5027657-S (June 25, 2010) (50 Conn. L. Rptr. 183), as follows: “After discussions between Stephen Zacchio, a real estate broker for Sunset Realty, and Patrick Snow, the sole shareholder of Premier Building, on August 5, 2005, Premier [Building] executed an exclusive right to selMease/exchange with Sunset . . . Realty regarding the property at 72 Berlin Road. At that time Premier [Building] did not own the property but had an option to purchase it. The listing was for the period of time August 5,2005 through August 5, 2006. Subsequently, Zacchio approached several prospective tenants including CVS. He contacted CVS’ preferred developer, Gersh[man] Brown, through David Morello, [Gershman Brown’s vice president], and showed the property to them. G.B. New England 2, LLC, through David Morello and by a letter of intent dated October 31, 2005, notified Snow that they intended to enter into negotiations toward a ground lease for 72 Berlin Road and indicated that a CVS store would be constructed and operated on the property. The letter listed the landlord as Premier Building . . . or Cobblestone .... [Snow] signed it as agreed to by the landlord on behalf [of] Cobblestone ... as its managing member. On May 4, 2006, Premier [Building] acquired title to the property and, on that same day, Premier [Building], acting through its president, Snow, conveyed the property to Cobblestone .... Eventually CVS approved the site and a ground lease for a portion of 72 Berlin Road was executed effective October 2, 2006, between Cobblestone . . . and Connecticut CVS Pharmacy, LLC. The plaintiff [Sunset Realty] subsequently requested that [it] be paid [its] commission of $137,500, which the defendants [Premier Building and Cobblestone] refused.”

With that factual underlay, wé now turn to the appeal at hand. On February 26, 2009, Sunset Realty filed a complaint alleging Premier Building’s breach of the listing agreement (count one), Cobblestone’s breach of the listing agreement (count two), Premier Building’s unjust enrichment (count three) and Premier Building’s violation of its duty of good faith and fair dealing under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (count four). On April 7, 2009, Premier Building filed an answer and a special defense asserting that Sunset Realty failed to earn its commission, and a counterclaim for vexatious litigation. That same day, Cobblestone also filed an answer and asserted a special defense that Sunset Realty failed to comply with the listing agreement.

After the presentation of evidence and the submission of posttrial briefs, the court issued a memorandum of decision in which it ruled that Cobblestone and Premier Building were obligated to pay the commission to Sunset Realty. The court specifically found that Sunset Realty was entitled to receive a commission pursuant to paragraph 6 (a) of the listing agreement. In reaching this conclusion, the court determined that Cobblestone, as an assign of Premier Building, was also bound by the listing agreement even though the agreement was signed only by Premier Building and Sunset Realty. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, Cobblestone and Premier Building contend that the court improperly found that Sunset Realty had procured a ready, willing and able tenant under the terms of its listing agreement with Premier Building. We disagree.

We first set forth our standard of review. The issue of whether Sunset Realty had procured a ready, willing and able tenant under the terms of its listing agreement with Premier Building is a question of fact. Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 78-79, 438 A.2d 1202 (1982). “[W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. 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.” (Internal quotation marks omitted.) Forastiere v. Higbie, 95 Conn. App. 652, 655-56, 897 A.2d 722, cert. denied, 280 Conn. 902, 907 A.2d 89 (2006). “In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 544, 893 A.2d 389 (2006).

Based on our careful review of the record, we conclude that the court’s finding that Sunset Realty had procured a ready, willing and able tenant under the terms of its listing agreement with Premier Building is supported by facts and reasonable inferences drawn from them. The court found, based on Revere Real Estate, Inc. v. Cerato, supra, 186 Conn. 78, that the eventual execution of the lease by CVS was evidence of the procurement by Sunset Realty, during the term set forth in the listing agreement, of a ready, willing and able tenant to lease the premises. In reaching this conclusion, the court referenced the fact that, more than nine months prior to the expiration of the listing agreement, a letter of intent had been signed by Premier Building or Cobblestone as the landlord, with G.B. New England 2, LLC, as the tenant, indicating that G.B. New England 2, LLC, would be developing the property for occupation by CVS. The letter also stated that “[i]t [was] intended to impose upon the parties hereto an obligation to negotiate, in good faith, a Ground Lease.” On the basis of those findings, the court determined that Sunset Realty had procured a ready, willing and able tenant pursuant to paragraph 6 (a) of the listing agreement. We cannot say, in light of all of the evidence in the record as a whole, that the court’s factual conclusion in this regard was clearly erroneous.

n

Cobblestone also argues that the court improperly rendered judgment against it because it was not a party to the listing agreement between Sunset Realty and Premier Building. Premier Building and Cobblestone contend that, pursuant to our Supreme Court’s holding in Location Realty, Inc. v. Colaccino, 287 Conn. 706, 949 A.2d 1189 (2008), Premier Building’s obligation to compensate Sunset Realty under the listing agreement was not validly assigned to Cobblestone. Therefore, Cobblestone reasons that it should not be held liable pursuant to the listing agreement. We disagree.

We first set forth our standard of review. “An assignment is a contract between the assignor and the assignee, and is interpreted or construed according to rules of contract construction.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 227, 828 A.2d 64 (2003). “[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Id. The interpretation of the listing agreement’s language in this action, therefore, presents a question of law over which we exercise plenary review. “To the extent [however] that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Internal quotation marks omitted.) Giametti v. Inspections, Inc., 76 Conn. App. 352, 356, 824 A.2d 1 (2003). Because the court relied on facts outside of the listing agreement in ascertaining the intent of the parties, the validity of the assignment of the obligations undertaken in the contract is a mixed question of law and fact. See Schoonmaker v. Lawrence Brunoli, Inc., supra, 227.

A brief discussion of the relevant law of assignment is useful to our analysis. The Restatement (Second) of Contracts provides in relevant part that “[a]n assignment of a right [or duty] is a manifestation of the assign- or’s intention to transfer it by virtue of which the assignor’s [duty to perform for or] right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right [or duty] to [engage in] such performance. ...” 3 Restatement (Second), Contracts § 317 (1981). “No words of art are required to constitute an assignment; any words that fairly indicate an intention to make the assignee owner of a claim are sufficient . . . .” 29 S. Williston, Contracts (4th Ed. 2003) § 74:3, p. 219. “The assignment . . . remains valid and enforceable against both the assignor and the assignee.” (Internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 269, 757 A.2d 526 (2000). As a matter of law, therefore, “an assignor’s obligations are not extinguished by an assignment.” Shoreline Communications, Inc. v. Norwich Taxi, LLC, 70 Conn. App. 60, 74, 797 A.2d 1165 (2002).

Sunset Realty’s ability to recover under the listing agreement is also governed by General Statutes § 20-325a, titled “Actions to recover commissions arising out of real estate transactions. Real estate broker’s lien for real property. Claim for hen. Provisions re commercial real estate transactions.” That statute provides in relevant part: “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action with respect to any acts done or services rendered after October 1, 1995, as set forth in subsection (a), unless the acts or services were rendered pursuant to a contract or authorization from the person for whom the acts were done or services rendered. To satisfy the requirements of this subsection any contract or authorization shall: (1) Be in writing, (2) contain the names and addresses of the real estate broker performing the services and the name of the person or persons for whom the acts were done or services rendered, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization, (5) be signed by the real estate broker or the real estate broker’s authorized agent, (6) if such contract or authorization pertains to any real property, include the following statement: ‘THE REAL ESTATE BROKER MAY BE ENTITLED TO CERTAIN LIEN RIGHTS PURSUANT TO SECTION 20-325a OF THE CONNECTICUT GENERAL STATUTES’, and (7) be signed by the person or persons for whom the acts were done or services rendered or by an agent authorized to act on behalf of such person or persons . . . .” General Statutes § 20-325a (b).

Subsection (d) of the statute permits recovery under a written agreement that substantially complies with the aforementioned requirements. General Statutes § 20-325a (d). Our Supreme Court has determined that “when . . . there is no strict compliance with the requirements of subsections (a), (b) and (c), an action for a real estate commission under § 20-325a nonetheless may proceed if two preconditions are met: (1) there has been substantial compliance with the requirements relevant to the transaction; and (2) the facts and circumstances of a case would make it inequitable to deny recovery.” Location Realty, Inc. v. Colaccino, supra, 287 Conn. 719.

Cobblestone argues that because it was not a signatory to the listing agreement, and, therefore, the requirements of § 20-325a were not met, Sunset Realty has no legal right to enforce the listing agreement against it. We are not persuaded. Our Supreme Court has concluded that the subsequent assignment of rights or duties under a listing agreement is permissible when additional requirements are also satisfied. In Location Realty, Inc. v. Colaccino, supra, 287 Conn. 722 n.14, the plaintiff claimed that the listing agreement applied to the defendants because it contained a term stating that it was binding on “ ‘assigns’.” Our Supreme Court rejected this argument because there was no written modification of the agreement or other agreement specifically designating the defendants as assigns. Id. The court further noted that such a written instrument had to substantially comply with the requirements of § 20-325a and had to describe both the assignee and the “subject matter of the assignment . . . "with such particularity as to render it capable of identification.” (Internal quotation marks omitted.) Id.

In the present case, the record reflects that Premier Building and Sunset Realty executed a listing agreement with regard to the Berlin Road property that stated in relevant part: “This agreement shall be binding upon the parties and their heirs, successors, assigns, and personal representatives . . . and may be modified, waived or discharged only by an agreement in writing signed by all parties.” (Emphasis added.) Notably, by the terms of this agreement, Premier Building’s obligations were intended to be binding on its assignees. Subsequent to this agreement, Premier Building transferred its interest in the Berlin Road property to Cobblestone for one dollar and other good and valuable consideration. Additionally, at all relevant times, Premier Building and Cobblestone shared a common member, Patrick Snow. Approximately four months after the property transfer, one of Cobblestone’s members, Mel J. Eisen, sent an e-mail to Zacchio, the broker for Sunset Realty, acknowledging Cobblestone’s obligation to compensate Sunset Realty for its services. Eisen stated in relevant part: “If a sale [of the subject property] took place you would have been paid . . . period. If and when a deal occurs with CVS, you will get paid what you are entitled to . . . period.”

Based on a thorough review of the record, we conclude that the court reasonably could have found that Eisen’s e-mail correspondence with Zacchio substantially complied with the requirements of § 20-325a. The e-mail identified Cobblestone’s obligation to compensate Sunset Realty for its services, contained the names of both the real estate broker and the person for whom services were rendered and was signed by the person for whom the services were rendered.

The record also reflects that the facts and circumstances would make it inequitable to deny recovery to Sunset Realty. The court found that Snow “established Cobblestone in order to secure financing for the project since Premier [Building] did not have the funds to finance the project.” Unlike the lack of a relationship between the parties in Location Realty, Inc., in the present case Cobblestone existed solely as a function of Premier Building, demonstrating a co-dependent relationship between the two entities. Noting the absence of such a relationship between the signatory to the agreement and a purported assignee in Location Realty, Inc., the court in the present case commented that Location Realty, Inc., was “distinguishable from the situation here because there was no indication in that case that the entity that bought the property was related in any way to the party with whom the plaintiff had entered into the initial listing agreement.” We agree with the court that the presence of such a relationship between Premier Building and Cobblestone, combined with the e-mail from Cobblestone expressly acknowledging the obligation, distinguish this case from Location Realty, Inc.

In short, on the basis of our Supreme Court’s reasoning in Location Realty, Inc., we conclude that the e-mail from a Cobblestone member was sufficient to serve as a designation of Cobblestone as an assignee of Premier Building. The e-mail constituted a separate agreement designating Cobblestone as an assignee and included a description of both the assignee and the subject matter of the assignment with sufficient particularity as to render it capable of identification. See Location Realty, Inc. v. Colaccino, supra, 287 Conn. 722 n.14.

In sum, Premier Building, as a party to the listing agreement with Sunset Realty, expressly bound its assignees to the terms of said agreement with regard to the Berlin Road property. Cobblestone, the subsequent owner of the property, explicitly acknowledged its duty to compensate Sunset Realty for its services. On the basis of our review of the record, therefore, we conclude that Cobblestone’s e-mail to Sunset Realty demonstrated that Cobblestone considered itself obligated under the terms of the listing agreement as Premier Building’s assignee, which leads us to the determination that a valid assignment from Premier Building to Cobblestone had occurred.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition, Premier Building and Cobblestone argue that the court varied materially from the pleadings by finding that Cobblestone was a successor corporation to Premier Building. To set aside a judgment on the basis of a variance between the pleadings and the proof, the variance must be material. “A variance is material if the defendant was prejudiced in maintaining a defense, surprised by the plaintiffs proof or misled by the allegations in the complaint.” A. V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 167, 623 A.2d 1048 (1993). The defendants rely on Francis v. Hollauer, 1 Conn. App. 693, 475 A.2d 326 (1984), for the proposition that “[a] judgment that is entered upon a claim not alleged is a material variance that requires reversal of a trial court’s ruling.” In Francis, this court concluded that the judgment, based on a cause of action entirely outside of the issues of the complaint, could not stand because “[t]he defendants were misled by the allegations in the complaint and prejudiced in the preparation and maintenance of their defense.” Francis v. Hollauer, supra, 697. In the present action, Premier Building and Cobblestone raised the issue of successor liability in their posttrial brief. They now contend that the court’s alleged finding on those grounds materially varies from the pleadings. “[Bjecause the [defendants] ha[ve] not shown that [they] w[ere] misled, surprised or prejudiced, the judgment will not be set aside on the basis of a claimed material variance between the [plaintiffs] pleadings and the court’s conclusions.” Boccanfuso v. Conner, 89 Conn. App. 260, 296, 873 A.2d 208, cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).
      Lastly, Premier Building and Cobblestone claim that the court improperly rendered judgment against Cobblestone on a theory of successor liability. To the extent that the court misused the term “successor,” we conclude that it was induced error caused by Premier Building’s and Cobblestone’s usage of the term in their posttrial brief. “[T]he term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. ... It is well established that a party who induces an error cannot be heard to later complain about that error. . . . This principle bars appellate review of induced nonconstitutional and induced constitutional error. . . . The invited error doctrine rests [on principles] of fairness, both to the trial court and to the opposing party.” (Internal quotation marks omitted.) Gorelick v. Montanaro, 119 Conn. App. 785, 796-97, 990 A.2d 371 (2010). Although the defendants employed the term “successor” in a subsection of their brief, it appears, based on their subsequent analysis of Location Realty, Inc. v. Colaccino, 287 Conn. 706, 949 A.2d 1189 (2008), that they were utilizing “successor” and “assign” as synonymous terms. Moreover, even though the court used the term “successor” in its description of Cobblestone, it analyzed Cobblestone’s relationship to Premier Building on the basis of the law regarding assignments. Therefore, mindful of the induced error doctrine, and the absence of surprise or harm to the defendants, we decline to credit the defendants’ claim that the court decided the matter on the grounds alleged, and instead, analyze the court’s decision in light of the applicable standards governing the law of assignment.

       On the basis of our review of the record, it appears that G.B. New England 2, LLC, is a business entity. We are unable to determine, however, whether there is a relationship between G.B. New England 2, LLC, Connecticut CVS Pharmacy, LLC, and Gershman Brown. Because making this determination would not affect our ultimate decision, we decline to speculate regarding G.B. New England 2, LLC’s affiliation with the aforementioned entities.

       Paragraph 6 (a) of the listing agreement states in relevant part: “We earn our commission if and when (a) during the term of this Agreement a prospective purchaser or tenant is ready, willing and able to purchase, lease, or exchange the property for the price(s) shown in Paragraph 4, or at any other price or terms acceptable to you . . . .”

       Section 316 of the Restatement (Second) of Contracts sets forth the scope of the chapter on assignment and delegation, and comment (c) of that section indicates that assignment refers to either rights or duties or both. 3 Restatement (Second), supra, § 316 and comment (c).

       In 1994, the legislature added what is now subsection (d), the exception permitting recovery for those individuals who substantially complied with the requirements of the statute provided that the equities balanced in their favor. See Public Acts 1994, No. 94-240, § 3; Location Realty, Inc. v. Colaccino, supra, 287 Conn. 729.

       Although the court and the listing agreement utilize the term “assigns,” we use the more common term “assignees.” See Black’s Law Dictionary (9th Ed. 2009).

       The existence of substantial compliance is supported by the record. Implicit in the court’s judgment that Cobblestone was liable under the listing agreement is a finding that the e-mail from Eisen to Zacchio constituted substantial compliance with § 20-325a. Because neither of the parties requested an articulation to fortify the record, to the extent that it is unclear what the court relied on in establishing that there was substantial compliance with § 20-325a, we read an ambiguous trial record to support, rather than undermine, the judgment. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482, 586 A.2d 1157 (1991) (“[wjhere an appellant has failed to avail himself of the full panoply of articulation and review procedures, and absent some indication to the contrary, we ordinarily read a record to support, rather than to contradict, a trial court’s judgment”).

       The court distinguished Location Realty, Inc., from the present case primarily on the basis that Cobblestone and Premier Building shared a common member. It presumed a flow of information between the entities, and, therefore, imputed Premier Building’s knowledge of its business transactions onto Cobblestone. We note, however, that our discussion of Location Realty, Inc., as previously set forth, includes additional distinguishing factors.