author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. DAVID S. HECK
    (AC 31790)
    DiPentima, C. J., and Harper and Pelligrino, Js.

      Argued January 10 —
    officially released May 17, 2011

      Daniel J. Foster, special public defender, for the appellant (defendant).

      Nancy L. Walker, special duty assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and, Christopher Parakilas, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, David S. Heck, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a), larceny in the second degree in violation of General Statutes § 53a-123 (a) (2) and criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (5). On appeal, the defendant claims that (1) the trial court improperly admitted evidence of two burglaries that occurred in New Hampshire, (2) there was insufficient evidence to support his conviction, (3) the court improperly admitted evidence obtained from the defendant’s global positioning system device (GPS device) in his rented pickup truck and (4) the court improperly admitted statements made by the defendant while in custody in New Hampshire. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the overnight hours of August 29, 2007, a burglary was committed at the town hall in Suffield. Prior to leaving work that evening, the Suffield tax collector, Christine Lucia, placed $6367.53 into a locked safe kept within her office. The burglar entered the building, which did not have an alarm system, through a basement storm window that had been pried off its track and dislodged. Once inside, the perpetrator broke open the door to the tax office, pried open the cash register and safe, and left with both cash and checks. During the burglary, the perpetrator rifled through various cabinets, desks and papers in the office, causing considerable property damage of approximately $3449. There were no eyewitnesses or physical evidence at the scene of the crime that connected the defendant to the burglary.

On September 7,2007, Christopher Bums, a detective with the Connecticut state police, received a telephone call from police officers in Hillsborough, New Hampshire, stating that they had apprehended the defendant for the burglary of two town halls in New Hampshire. At around 4 a.m. that morning, police in Hillsborough had received a telephone call concerning the defendant’s rented pickup tmck, which was parked in a driveway on Park Place in Hillsborough. David Roarick, a captain with the Hillsborough police department, arrived at the scene two minutes later to investigate. As he approached, he saw a 2007 Dodge pickup track with a Massachusetts license plate in the driveway with a person sitting in the passenger seat. He saw someone run from across the street toward the property where the track was parked, and then walk behind the house into a wooded area. Roarick called police dispatch, who reported that the track was registered to Carmac, Inc. He then approached the vehicle and spoke to the passenger, Justin Douglas, who informed Roarick that the driver was visiting a friend nearby but that Douglas did not know the driver’s name or where he had gone. Because Douglas’ answers were evasive and Roarick believed that the track may have been stolen, he asked Douglas to exit the vehicle.

After Douglas exited the vehicle, Roarick noticed a GPS device on the dashboard of the track. In an attempt to determine the location of the missing driver, Roarick pressed the “recent entry” button on the device to scroll through the recently entered addresses. Among the first addresses displayed were those of the Hillsborough and Windsor town halls, which had been burglarized. He also found a driver’s license and business card in the center console with the defendant’s' name on it, although he did not know if they belonged to the driver of the vehicle. He attempted to telephone the defendant at the number on his business card, and left a message on his voicemail after the defendant did not answer.

At that point, Michael Martin, a Henniker, New Hampshire police officer, arrived on the scene and walked over to the Hillsborough town hall to investigate, and determined that it had been burglarized. Eventually, Douglas provided to Roarick the number for the defendant’s cellular telephone. The defendant failed to answer when Roarick called from his own telephone, however, when Roarick called him using Douglas’ telephone, the defendant answered. Roarick informed the defendant that he knew about the burglary at the Hills-borough town hall and that he should turn himself in to the police. The defendant subsequently turned himself in and was placed under arrest. He admitted that he had burglarized the town halls in Hillsborough and Windsor because he had lost his house and was having financial difficulties.

After a jury trial on the Suffield burglary, the defendant was found guilty, as charged, of burglary in the third degree in violation of § 53a-103 (a), larceny in the second degree in violation of § 53a-123 (a) (2) and criminal mischief in the first degree in violation of § 53a-115 (a) (5). On September 9, 2009, the court sentenced the defendant to a total effective term of ten years incarceration, suspended after nine years, with five years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant’s first claim is that the trial court abused its discretion by admitting evidence of two separate burglaries that occurred in New Hampshire. We disagree.

The following procedural history is relevant to our discussion. On April 28, 2009, the defendant filed a motion in limine seeking to exclude at trial any evidence of the New Hampshire town hall burglaries because all charges against the defendant in New Hampshire had been dismissed. The state argued that the evidence was admissible to prove the existence of a larger plan or scheme and that the burglaries were sufficiently distinctive and unique as to be like a signature. On May 6, 2009, the court denied the defendant’s motion in limine. At trial, Roarick; Darren Remillard, a Hillsborough police officer; and Thomas Forsley, a New Hampshire state trooper, testified about the New Hampshire town hall burglaries.

First, we set forth our standard of review. “The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . [T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant . . . [who] must show that it is more probable than not that the erroneous action of the court affected the result. . . .

“It is well settled that evidence of prior misconduct is admissible for the purpose of showing knowledge, intent, motive, and common scheme or design, but is not admissible to prove that a defendant is guilty of the crimes with which he is charged. . . . Uncharged misconduct evidence relates to a collateral, uncharged crime and does not prove the commission of the principal crime with which the defendant is charged. . . .

“To admit evidence of prior misconduct properly, two tests must be met. The evidence (1) must be material and relevant, and (2) its probative value must outweigh the prejudicial effect of the evidence. . . . Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. . . . Relevant evidence is defined in Connecticut Code of Evidence, § 4-1, as evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. The commentary to that section makes it clear that there are two separate components of relevant evidence at common law, probative value and materiality. Evidence is relevant if it tends to support the conclusion even to a slight degree. . . . Materiality is determined by the pleadings (or information) and the applicable substantive law. . . .

“Our Supreme Court has identified two categories of common scheme or plan cases. ... In the first category, which consists of what most accurately may be described as true common scheme or plan cases, the nature of the charged and uncharged crimes combined with connecting evidence, if any, gives rise to a permissive inference that an overall scheme or plan existed in the defendant’s mind, and that the crimes were executed in furtherance of that plan. In the second category of cases, which consists of what most accurately may be described as signature cases, the charged and uncharged crimes appear to be separate and discrete criminal acts, but the method of commission exhibits the existence of a modus operandi, logo, or signature, which, when considered in combination with other factors, such as the proximity of time and place of commission, gives rise to a permissive inference that the crimes were executed in furtherance of an overall common scheme or plan.” (Citations omitted; internal quotation marks omitted.) State v. Dougherty, 123 Conn. App. 872, 877-78, 3 A.3d 208, cert. denied, 299 Conn. 901, 10 A.3d 521 (2010).

Here, the charged and uncharged crimes occurred in distinct locations and during separate criminal acts committed by the defendant. The defendant’s GPS device contained the recent locations of town halls in Suffield, and in Hillsborough and Windsor, New Hampshire, all of which had been burglarized. The trial court permitted evidence concerning the robberies that the defendant admitted he was involved with in Hills-borough and Windsor, New Hampshire. The crimes at each location shared distinct and unique features which give rise to an inference that the crimes were executed in furtherance of an overall common scheme. All three burglaries occurred during the evening hours in small town halls that did not have burglar alarms. In each case, the intruder entered through the basement and caused damage throughout the building as he broke into several offices and broke open a safe in search of cash.

We cannot conclude that it was an abuse of discretion on the part of the trial court to find that the method of carrying out these crimes exhibited a modus operand! or signature, and were executed in furtherance of an overall common scheme. The crimes all occurred within an eight day period and within a reasonable driving distance of each other and the defendant’s home. See State v. Greene, 209 Conn. 458, 465, 551 A.2d 1231 (1988) (“robberies were committed ... at similar times of day within three days of each other and in the same vicinity”).

Finally, we disagree with the defendant’s assertion that the introduction of this evidence at trial was more prejudicial than probative. “The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. McClelland, 113 Conn. App. 142, 153, 965 A.2d 586, cert. denied, 291 Conn. 912, 969 A.2d 176 (2009). There is no evidence in the record that the New Hampshire burglaries had a tendency to improperly arouse the emotions of the jury. Further, the court issued limiting instructions during the presentation of evidence and its instructional charge to the jury. We, therefore, cannot conclude that the court abused its discretion in determining that the probative value outweighed the prejudicial effect of presenting evidence to the jury of the uncharged misconduct.

II

The defendant’s next claim is that the trial court improperly admitted evidence obtained from the GPS device in his rented pickup truck. We disagree.

The following additional facts are relevant to this claim. Prior to trial, the defendant moved to suppress evidence garnered from the search of his rental vehicle. After an evidentiary hearing on the defendant’s motion to suppress, the court set forth orally its findings of fact. According to the court, Roarick approached the vehicle, which was parked in a private driveway and was occupied by a passenger, Douglas, who was evasive when Roarick questioned him. After Douglas exited the vehicle, Roarick looked inside of it and noticed a GPS device, which he began to operate in an attempt to locate the driver of the vehicle. The defendant was located approximately two hours later, after Douglas gave Roarick the defendant’s cellular telephone number and Roarick called using Douglas’ telephone. The defendant informed Roarick as to his location and was taken into custody.

The defendant was taken to the Hillsborough police station to be questioned by Remillard, who began by reading him his Miranda rights. The defendant answered affirmatively that he understood his rights. After being questioned about the Hillsborough burglary, the defendant confessed to stealing money from the town hall and agreed to show the police where the money was hidden in the woods behind the town hall. The interview was terminated, and the defendant was brought back to the crime scene. After returning to the police station, the defendant offered details about the burglary, including how he and Douglas had entered the building and broken into the safe. The initial interview lasted approximately thirty to forty minutes, and the second interview, conducted after they arrived back at the police station, lasted approximately one hour. Later, the defendant was questioned in the same interview room by Forsley. During that interview, which occurred in two parts, the defendant was read his Miranda rights twice, using two separate state police forms that were signed by both Forsley and the defendant. Ultimately, the defendant also confessed to the burglary of the Windsor town hall.

We begin with our well established standard of review for a motion to suppress. “It is axiomatic that [u]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. . . . As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]hen a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, [however] and the credibility of witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Duffus, 125 Conn. App. 17, 24-25, 6 A.3d 167 (2010), cert. denied, 300 Conn. 903, 12 A.3d 572 (2011).

In light of the evidence and pleadings in the record, we agree with the court’s well reasoned finding, in denying the defendant’s motion to suppress, that the fruits of the search by the police of the defendant’s truck would have been inevitably discovered. “Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. ... To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation. . . . The inevitable discovery rule applies in a situation in which . . . the police would have legally discovered the evidence eventually.” (Citations omitted; internal quotation marks omitted.) State v. Vallejo, 102 Conn. App. 628, 640, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A. 2d 934 (2007). Here, the police would have discovered the GPS device through the inventory conducted in accordance with the police department policy. See id.

The jury reasonably could have concluded that Roarick arrived after a Hillsborough resident had notified the police of a suspicious truck in his driveway. The whereabouts of the truck’s driver were unknown, the passenger of the truck refused to provide any information or explanation as to what he was doing, and Roarick had seen another individual, the defendant, wearing a hooded garment, run behind a house near where the truck was located. Upon further investigation, Roarick determined that the truck was registered to Carmac, Inc. Based on the foregoing information, Roarick reasonably believed that the truck had been stolen, and the defendant eventually was captured without the use of any information provided through Roarick’s search of the truck.

Additionally, because Roarick believed that the truck was stolen, it would have been impounded and a subsequent inventory would have revealed the same GPS information at that time. The Hillsborough town hall custodian, who usually arrived for work at approximately 7 a.m., would have discovered that the building had been burglarized and notified the police. Inevitably, the police would have connected the proximity of the defendant and the impounded vehicle to the Hills-borough town hall burglary. Therefore, the defendant’s connection to the New Hampshire town hall burglaries would have eventually been discovered and that discovery would have resulted in a lawful search of the defendant’s truck and seizure of evidence found inside the truck. Accordingly, we conclude that the court properly denied the defendant’s motion to suppress all evidence obtained in its search of the GPS device found in the defendant’s truck.

Ill

The defendant’s final claim is that the trial court improperly admitted evidence of a confession obtained in New Hampshire in violation of New Hampshire law. We disagree. As we previously stated, under the applicable standard of review, we uphold factual findings unless they are clearly erroneous.

During the defendant’s interrogation, both Remillard and Forsley satisfied the requirements of Miranda in “fully equivalent language.” The defendant was alert, understood English, responded accordingly and waived those rights expressly and through his conduct. Pursuant to Connecticut and federal law, based on the facts in this case, the state adequately demonstrated to the court that the defendant expressly and, through his conduct, waived his fifth amendment right to remain silent. We disagree with the defendant’s analysis that, pursuant to State v. Boyd, 295 Conn. 707, 992 A.2d 1071 (2010), New Hampshire law controls this case.

In Boyd, our Supreme Court held that evidence obtained in a legal search in another state can be admitted in a Connecticut court even though the search, if it had occurred in Connecticut, would have violated the Connecticut constitution. Id., 724. Because the exclusionary rule’s “prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the [fjourth [a]mendment against unreasonable searches and seizures . . . [application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered.” (Internal quotation marks omitted.) Id., 729. Moreover, the court in Boyd cited with approval several cases which hold that there is no requirement that evidence obtained in another state be excluded in the forum state merely because it would be inadmissible if the prosecution were in that other state. See id., 728 n.12. Therefore, because the evidence in question would have been admissible in Connecticut, the court’s analysis in Boyd does not apply in this case. The trial court found that the evidence was admissible in Connecticut, and the fact that it may have been inadmissible in New Hampshire did not preclude admissibility in this state. Thus, we conclude that our Supreme Court’s analysis in Boyd does not avail the defendant of the benefit of New Hampshire law.

The record shows that the defendant, after being read his Miranda rights, acknowledged that he understood his rights and voluntarily waived them by speaking to the police. We, therefore, conclude that the court properly denied the defendant’s motion to suppress his statements.

The judgment is affirmed.

In this opinion the other judges concurred.

       After a search warrant for the truck and its contents was executed by the Hillsborough police, Bums scrolled through the recently searched addresses that were saved in the defendant’s GPS device. The address for the town hall in Suffield came up as one of the recently searched addresses.

       On the basis of his claim that evidence of the New Hampshire burglaries should not have been presented to the jury, the defendant argues that the remaining evidence is insufficient to support his conviction. The defendant has provided no law or legal analysis to support his claim. We are not required to review claims that are inadequately briefed. See State v. Barksdale, 79 Conn. App. 126, 136 n.9, 829 A.2d 911 (2003).

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The court chose not to make a finding as to whether the defendant had a reasonable expectation of privacy in his vehicle. We, similarly, are not required to address that issue.

       The defendant was taken into custody at approximately 6:25 a.m.

       Furthermore, although the defendant claims that the trial court in New Hampshire previously held that the state had not met its burden of showing that the defendant waived his Miranda rights when it prosecuted him for the Hillsborough and Windsor burglaries, he has not provided this court with a copy of it, as is required pursuant to Practice Book § 67-9.


source: Caselaw Access Project

author: LAVINE, J. FLYNN, J.

license: Public Domain

text:
    HARTFORD MUNICIPAL EMPLOYEES ASSOCIATION v. CITY OF HARTFORD
    (AC 31262)
    Lavine, Robinson and Flynn, Js.

      Argued November 29, 2010 —
    officially released May 17, 2011

      Saundra Kee Borges, corporation counsel, with whom was Ivan A. Ramos, assistant corporation counsel, and, on the brief, John Rose, Jr., former corporation counsel, for the appellant (defendant).

      Stephen F. McEleney, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant, city of Hartford, appeals from the judgment of the trial court vacating an arbitration award in which the arbitrators found that the defendant had just cause to terminate the employment of Luis Rodriguez-Davila, for violating the defendant’s workplace violence policy. On appeal, the defendant claims that (1) the court erred in vacating the arbitration award because Rodriguez-Davila was not substantially prejudiced or denied a full and fair hearing by the arbitrator’s decision to exclude evidence concerning one of the defendant’s employees who received a lesser punishment for purportedly similar conduct and (2) the court’s decision is contrary to public policy. We agree with the defendant that Rodriguez-Davila was not substantially prejudiced or denied a full and fair hearing by the arbitrator’s evidentiary ruling and, therefore, reverse the judgment of the court.

The following facts and procedural history are relevant to this appeal. In 1999, Rodriguez-Davila began working for the defendant’s office of human relations as a principal field representative in the minority women business enterprise certification program. In February, 2006, a director in this office, Lillian Ruiz, issued to Rodriguez-Davila a memorandum regarding his tardiness and deviation of work hours. Ruiz claimed that when Rodriguez-Davila received this memorandum, he became agitated, threw the memorandum at her and verbally threatened her.

Rodriguez-Davila was arrested in connection with these allegations, and, in lieu of criminal prosecution, he entered into the accelerated rehabilitation program. Concerning his employment, Rodriguez-Davila agreed to enter into a last chance agreement, which provided that, within the succeeding twelve months, a second incident of unacceptable behavior in the workplace would result in termination of his employment. The agreement also required that Rodriguez-Davila participate in an anger management program.

After the incident in February, 2006, the defendant transferred Rodriguez-Davila to its economic development division. On July 2, 2007, after the last chance agreement had expired, Rodriguez-Davila attended a meeting with Jose Rodriguez, Rodriguez-Davila’s supervisor, Mark McGovern, the director of the economic development division, as well as Michael Fuschi, Rodriguez-Davila’s union representative, to discuss Rodriguez-Davila’s work performance within that department. At this meeting, when questioned about his substandard work performance, Rodriguez-Davila became very loud, pounded on the table, attempted to stand up and was asked to leave the room.

McGovern and John Palmieri, director of the development services department, recommended that the defendant terminate Rodriguez-Davila’s employment as a result of his conduct on July 2, 2007. On December 27, 2007, the defendant terminated Rodriguez-Davila’s employment by letter, citing its workplace violence policy and Rodriguez-Davila’s previous suspension in 2006. On January 7,2008, the plaintiff, Hartford Municipal Employees Association, a certified bargaining representative for certain employees of the defendant, including Rodriguez-Davila, filed a statement of grievance on behalf of Rodriguez-Davila concerning the defendant’s decision.

On February 5, 2008, the plaintiff filed a request for grievance arbitration. On June 3 and June 30, 2008, a hearing was held before an arbitration panel (panel), consisting of Joseph Parker, the hearing officer, Daniel Camilliere and Michael Ferrucci, Jr., to decide the issue of “ [w]hether or not the grievant, Luis Rodriguez-Davila, was terminated on or about December 27, 2007 by the city of Hartford for just cause? If not, what shall the remedy be?”

During the hearing, the plaintiff attempted to introduce evidence concerning Tyrone Bowman, an individual who, while employed by the defendant, violated the defendant’s workplace violence policy on two separate occasions. The plaintiff wanted to establish that while Bowman received a similar five day suspension for the first violation, he received only a thirty day suspension for the second violation, rather than having his employment terminated like Rodriguez-Davila. The plaintiff argued that this evidence was relevant to the panel’s determination as to whether the defendant has a zero tolerance approach for a second violation of its workplace violence policy. Parker allowed evidence of the first violation but sustained the defendant’s objection to the introduction of Bowman’s second violation. Specifically, Parker stated that: “We have no idea what was behind the city’s motivation in Bowan II. You’re asking us to look at an event without looking at everything that went with it, so we’d almost have to have a separate hearing on that, and I think that would be totally inappropriate for this particular panel to do.”

On February 9, 2009, the panel issued an arbitration award in which it denied the plaintiffs grievance and found that the defendant had just cause to terminate Rodriguez-Davila’s employment. The award provided that: “Employees are entitled to a safe workplace. There was credible testimony that employees did not believe the workplace to be safe. This is sufficient reason to accept the [defendant’s] position that it had both the right and responsibility to provide such an environment .... The [defendant] tried to correct [Rodriguez-Davila’s] workplace behavior but, apparently, its effort fell on deaf ears, especially when [Rodriguez-Davila] could not recall attending anger management counseling, much less detail the content of the program.”

On February 17,2009, the plaintiff filed an application to vacate the arbitration award pursuant to General Statutes § 52-418, claiming that the panel was “guilty of misconduct” in refusing to hear pertinent and material evidence. On June 25, 2009, after hearing arguments from both parties, the court issued an oral memorandum of decision vacating the arbitration award and remanding the case for a new hearing before a new panel. Specifically, the court concluded that: “Particularly, in this case . . . having allowed comparison to the earlier cases involving Bowman, the panel should have allowed the information as to the second incident. [It] [m]ay not be determinative, but it should have been considered by the [panel].” This appeal followed.

“We begin with the applicable legal principles and standard of review governing our analysis. Our Supreme Court has stated: [F]or many years [we have] wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation. . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention. . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator’s powers, the parties are generally bound by the resulting award. . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings. . . . The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it ... . [W]e have . . . recognized three grounds for vacating an [arbitrator’s] award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. . . .

“[Arbitrators are accorded substantial discretion in determining the admissibility of evidence . . . which reheve [s] the arbitrators of the obligation to follow strict rules of law and evidence in reaching their decision. . . . Indeed, it is within the broad discretion of arbitrators to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily .... This relaxation of strict evidentiary rules is both necessary and desirable because arbitration is an informal proceeding designed, in part, to avoid the complexities of litigation. Moreover, arbitrators generally are laypersons who bring to these proceedings their technical expertise and professional skills, but who are not expected to have extensive knowledge of substantive law or the subtleties of evidentiary rules. . . .

“A trial court’s decision to vacate an arbitrator’s award under § 52-418 involves questions of law and, thus, we review them de novo. ... To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law. . . . Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the [arbitrator]. . . .” (Emphasis in original; internal quotation marks omitted.) Marulli v. Wood Frame Construction. Co., LLC, 124 Conn. App. 505, 509-10, 5 A.3d 957 (2010), quoting Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 473-77, 899 A.2d 523 (2006).

“The federal courts, in construing the nearly identical grounds for vacating an arbitration award under 9 U.S.C. § 10 (a) (3), have held that an arbitration hearing is fair if the arbitrator gives each of the parties to the dispute an adequate opportunity to present its evidence and argument. ... If the evidence at issue is merely cumulative or irrelevant, the arbitrator’s refusal to consider it does not deprive the proffering party of a full and fair hearing.” (Internal quotation marks omitted.) McCann v. Dept. of Environmental Protection, 288 Conn. 203, 215, 952 A.2d 43 (2008).

“Additionally, to vacate an arbitrator’s award on the ground of misconduct under § 52-418 (a) (3), the moving party must establish that it was substantially prejudiced by the improper ruling. . . . This requirement that the moving party establish substantial prejudice is consistent with the showing that this court requires to order a new trial when a trial court makes an improper evidentiary ruling in a civil trial. ... In such cases, a new trial will be ordered only when the improper evidentiary ruling [likely] would [have] affectfed] the result. . . . Federal case law considering whether an arbitrator’s evidentiary ruling deprived a party of a fair hearing is consistent with requiring the moving party to demonstrate substantial prejudice to vacate an award on this ground.

* * *

“Requiring the moving party to establish substantial prejudice by demonstrating that the decision excluded evidence that was decisive or likely to have altered the outcome of the claim is consistent with the principles underlying arbitration.” (Citations omitted; internal quotation marks omitted.) Bridgeport v. Kasper Group, Inc., supra, 278 Conn. 476-78. We conclude that Rodriguez-Davila has not demonstrated that he was substantially prejudiced or deprived of a full and fair hearing by the arbitrator’s evidentiary ruling. Therefore, we reverse the court’s judgment.

The plaintiff argues, inter alia, that evidence of Bowman’s suspension would have likely affected the result of the arbitration because the evidence refutes the defendant’s assertion that it has a zero tolerance approach for second violations of its workplace violence policy. We are not persuaded that this evidence is relevant to the issue presented before the panel, which was whether the defendant had just cause for terminating Rodriguez-Davila’s employment. The defendant terminated Rodriguez-Davila’s employment as a result of his conduct on July 2, 2007, and in light of the fact that he had been suspended from employment less than two years earlier for similar conduct. We do not see how evidence relating to the suspension of Bowman, an employee who is unrelated to the facts surrounding the termination of Rodriguez-Davila’s employment, would have likely affected the panel’s decision.

Moreover, we disagree with the plaintiffs contention that the panel relied heavily on any assertion by the defendant that it was simply adhering to a zero tolerance policy for second violations of its workplace violence policy. The arbitration award makes no reference to a zero tolerance policy. Rather, the panel references the concerns of the defendant’s employees who worked with Rodriguez-Davila, along with Rodriguez-Davila’s reluctance to address his anger problems, in finding that the defendant had just cause to terminate RodriguezDavila’s employment.

The panel noted in the arbitration award that the defendant had attempted to correct Rodriguez-Davila’s workplace behavior but that Rodriguez-Davila was reluctant to take advantage of those efforts. Specifically, the panel noted that Rodriguez-Davila could not recall attending the anger management counseling sessions that he had agreed to attend after his 2006 suspension or detail the content of those sessions. The panel also stated that the defendant’s employees are entitled to a safe workplace and that there was credible evidence that employees did not believe the workplace to be safe. Therefore, the panel accepted the defendant’s position that it had both the right and responsibility to provide a safe environment and to terminate RodriguezDavila’s employment. The panel did not, however, state that the defendant had no choice but to terminate Rodriguez-Davila’s employment.

In its brief, the plaintiff points to this reasoning by the panel and questions why the defendant did not exercise this responsibility in connection with its discipline of Bowman. We will not speculate as to the reason for the defendant’s decision to suspend Bowman rather than to terminate his employment for a second violation of its workplace violence policy. Instead, we conclude that under the specific evidence presented to the panel concerning Rodriguez-Davila and the evidence relied on by the panel in reaching its decision, additional evidence of an allegedly similarly situated employee, who received a lesser punishment, was not relevant or likely to have affected the panel’s final decision.

The plaintiff also argues that our Supreme Court, in Bridgeport v. Kasper Group, Inc., supra, 278 Conn. 466, spoke on the issue of denying admission of strong probative evidence merely because a postponement of the arbitration process was required and overturned an arbitration award for failing to grant such a postponement. Kasper Group, Inc., the only Connecticut appellate case we have found in which an arbitration award was reversed pursuant to § 52-418 (a) (3) because the arbitrator refused to admit proffered evidence, however, is factually distinct from the case before us. In Kasper Group, Inc., the city of Bridgeport (city) entered into negotiations with The Kasper Group, Inc. (Kasper), to design an elementary school. Id., 468. The city later changed the plans for the school to include classrooms for students in seventh and eighth grades and invited proposals from other design firms, in addition to Kasper, for the design of the new school. Id., 468-69. Kasper instituted an action seeking to enjoin the city from soliciting new proposals and terminating an alleged contract it had with the city. Id., 469. The parties agreed to enter into arbitration. Id. During arbitration, the city argued that even if there was a contract between the parties, it was void ab initio because it had been procured by illegal means. Id.

The facts supporting the city’s defense were that Paul Pinto, the owner of 99 percent of Kasper’s shares, had entered into a plea agreement with the federal government admitting, in part, to having engaged in a bribery and kickback scheme with then city mayor Joseph Ganim to obtain city municipal contracts. Id., 469-70. The arbitrator, however, denied the city’s motion to consider Pinto’s testimony in the Ganim criminal trial and rendered an award in favor of Kasper. Id., 471. The trial court later vacated the award pursuant to § 52-418 (a) (3), finding that the arbitrator had committed misconduct by precluding the use of Pinto’s testimony as evidence. Id.

In affirming the trial court’s judgment, our Supreme Court held that the city was substantially prejudiced by the exclusion of Pinto’s testimony. Id., 483. Specifically, the court stated that “Pinto’s testimony would have made the conclusion that he illegally had procured the West Side School contract very likely. At the very least, his testimony very [likely] would [have] affect[ed] the result of the arbitration had it been introduced.” (Internal quotation marks omitted.) Id. The court went on to state that: “Indeed, to consider the testimony and conclude otherwise, an arbitrator would have to find that, although Pinto’s job was to do whatever he had to do in order to continue the flow of work to the defendant, that Pinto had engaged in a widespread corruption scheme that resulted in him getting every contract he wanted, and that Pinto had procured major municipal contracts, including ‘some school jobs,’ the scheme nevertheless did not extend to the one contract at issue in this case. Such a conclusion, however, contravenes both logic and common sense. Accordingly, we conclude that the trial transcript was so central to the plaintiffs case that the arbitrator’s failure to consider it was misconduct.” Id., 483-84.

Here, the Bowman evidence was not so central to the plaintiffs case that the panel’s failure to consider it was misconduct. Unlike the excluded evidence in Kasper Group, Inc., the Bowman evidence did not establish a defense to the allegations raised by the defendant. While the evidence did arguably support the claim that the defendant did not have a zero tolerance policy, even considering this evidence, the panel’s decision does not contravene logic or common sense. The panel referenced the safety concerns of Rodriguez-Davila’s coworkers and Rodriguez-Davila’s reluctance to take advantage of the anger management counseling sessions mandated as part of his last chance agreement. These are relevant and material grounds to rely on in determining that an employee should be removed from the workplace. Therefore, a panel could logically conclude that there was just cause to support termination of employment even though an allegedly similarly situated employee received a lesser punishment.

Finally, we conclude that the exclusion of the Bowman evidence did not deprive Rodriguez-Davila of a full and fair hearing. Parker’s explanation for excluding the evidence concerning Bowman’s second violation of the defendant’s workplace violence policy was reasonable, and it was within his broad discretion to decide whether the additional evidence was required or would merely prolong the proceedings unnecessarily. The plaintiff introduced testimony from five witnesses, including Rodriguez-Davila’s union representative who was present during the July 2, 2007 meeting, and was permitted to cross-examine the defendant’s four witnesses. Additionally, even if the plaintiff had established that the defendant did not have a zero tolerance policy, the panel reasonably could have found that Rodriguez-Davila’s repeated violations of the defendant’s workplace violence policy justified his termination. See McCann v. Dept. of Environmental Protection, supra, 288 Conn. 216.

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiffs application to vacate the award.

In this opinion ROBINSON, J., concurred.

FLYNN, J.

dissenting. General Statutes § 52-418 assures a full and fair hearing to parties to an arbitration by expressly authorizing the Superior Court to vacate an award when an arbitration panel refuses to hear evidence pertinent and material to the controversy. Judge Hale, pursuant to § 52-418, properly vacated the arbitration award in this case because he found that the arbitration panel was guilty of misconduct in refusing to hear evidence, which was pertinent and material to the controversy, from Luis Rodriguez-Davila, the grievant, who had been discharged. The panel had refused to hear evidence that B, another employee guilty of more egregious conduct, who had actually voiced a threat in the workplace to another, received only a six month suspension, later reduced by another panel to thirty days, as opposed to the grievant Rodriguez-Davila’s discharge. Judge Hale found that the evidence was pertinent to the remedy to be applied by the panel in determining whether the grievant was unjustly terminated from employment. Judge Hale’s conclusion that the excluded evidence was “very pertinent to the question of remedy” is consistent with that principle of common law of arbitrability in labor cases, which recognizes that disparate or discriminatory application of an employee’s discipline is one measure of whether a grievant was discharged for just cause, which can be determinative. Two workplace incidents had occurred involving similar conduct. In them, both the grievant and B had similar histories of prior incidents and progressive discipline. Both the grievant and B were employed by the same city of Hartford, under the same union contract. One employee, B, who threatened another to “ ‘watch out’ ” was only suspended; the grievant, who merely shouted, was fired. Judge Hale found that because the panel had allowed evidence as to the first incident involving B, evidence should also have been allowed as to the second incident involving B, which resulted only in B’s suspension and is the basis of Rodriguez-Davila’s claim. I agree and would affirm his thoughtful judgment vacating the award.

In Public Acts 1929, c. 65, § 11, codified as amended at § 52-418 (a) (3), the General Assembly provided that any party “to an arbitration” may apply to the Superior Court to vacate an award “if the arbitrators have been guilty of misconduct ... in refusing to hear evidence pertinent and material to the controversy . . . .” The Hartford Municipal Employees Association, a labor union, was a party to an arbitration between it and the city of Hartford, arising out of the grievance of Rodriguez-Davila who had been fired. The contract contained a “just cause” dismissal provision. It provided in pertinent part: “No employee can be reprimanded, suspended, demoted or discharged except for just cause.” There is no contractual definition between the union and the city of “just cause.” In 1966, Arbitrator Carroll R. Daugherty issued an award in Enterprise Wire Co. v. Enterprise Independent Union, 46 Lab. Arb. Rep. (BNA) 359 (Mar. 28, 1966), where, in the absence of a contractual definition of just cause, he established a seven prong approach to determine whether just cause existed for discipline. Soon thereafter, other arbitrators adopted these standards, labeling them “Daugherty tests of just cause.” So well respected and widely adopted have Daugherty’s views become that the seven prongs are now an integral part of arbitral common law. C. Deitsch, “Jekyll and Hyde: The Split Personalities of aPublic Sector Arbitrator,” 30 J. Collective Negotiations in Pub. Sector 16 (2003).

The sixth prong of the Daugherty test is pertinent to the issues before us. It is: “Has the [employer] applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?” Enterprise Wire Co. v. Enterprise Independent Union, supra, 46 Lab. Arb. Rep. 364. This inquiry and the other prongs of Daugherty’s test have long been used by the Connecticut state board of mediation and arbitration, which has taken evidence on whether disparate or discriminatory treatment has occurred in deciding “just cause” discipline cases. See Evening Sentinel v. Ansonia Typographical Union, No. 285, State Board of Mediation & Arbitration, Case No. 7071-A-175, p. 7 (May 26, 1971) (Weckstein, Arb.). It continues to hear evidence on the sixth antidiscriminatory prong until the present day. When heard, it is often dispositive. In New London v. International Assn. of Firefighters, IAFF, Local 1522, State Board of Mediation & Arbitration, Case No. 9697-A-690, p. 3 (July 28, 1999) (Cain, Arb.), the board determined that the grievant firefighter’s disparate treatment argument was well taken because in a separate, similar incident, another firefighter had not been discharged from employment. It found the grievant’s employment was not terminated for “just cause” and ordered reinstatement. Id., p. 4. In another discharge case, New Haven v. AFSCME, Council 4, AFL-CIO, Local 3144, 90 Lab. Arb. Rep. (BNA) 1040, 1042 (1988) (Stacey, Arb.), the board ordered reinstatement of the grievant because she was treated in a disparate manner from others similarly situated who were granted time to change back residency within the city limits of New Haven. The panel found that the actions of the residency review board were “not uniform” in regard to the application for waiver, submitted to it by the grievant. Id. International Brotherhood of Electrical Workers, Local Union 420 v. Connecticut Light & Power Co., State Board of Mediation & Arbitration, Case No. 2010-A-0216 (April 27,2010) (Weiner, Arb.) provides another example. In it, three experienced arbitrators on the Connecticut state board of mediation and arbitration, Chairman Gerald T. Weiner, and members Raymond Shea and David Ryan, unanimously agreed that the disparity of punishment imposed on two workers for similar offenses was “not justified” where one was only suspended for two weeks and the grievant was fired. They ordered the grievant reinstated based on the antidiscriminatory sixth prong.

I do not suggest that an arbitrator is acting improperly in excluding evidence simply because someone sought to introduce evidence that was cumulative or irrelevant. But, the panel chair here did not claim that the evidence was cumulative or irrelevant. Instead, he said that the panel could not examine the second instance of B’s workplace misconduct because “we’d have to bring in everybody.” In Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 485, 899 A.2d 523, aff'd, 278 Conn. 466, 899 A.2d 523 (2006), a construction contract dispute, our Supreme Court held that denial of the opportunity to present evidence that the mayor was taking bribes, because it would take additional time, was not a proper reason. Taking time to listen to material and relevant evidence from the parties is what the panel of arbitrators is there for and that is what the arbitration statute contemplates that they do.

The panel chair also stated that his reason for not admitting the discipline B received for the second instance of workplace misconduct was that it was issued after the discipline issued to the grievant. “In ‘disparate treatment’ cases, the grievant’s claim may be that he or she has been disadvantaged because other employees are currently being treated or in the past were treated in a more favorable manner . . . .” A. Koven & S. Smith, Just Cause: The Seven Tests 360 (3d Ed. 2006). I agree with Judge Hale’s observation that it is difficult to see how the first discipline of B for similar conduct was admitted as relevant and material, but the second, less severe discipline of B imposed four months later for similar but more egregious conduct was excluded when the panel did not establish or determine that the second incident was irrelevant or cumulative.

It is well established that a party to an arbitration is entitled to a “full and fair hearing.” O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 149, 523 A.2d 1271 (1987). Each side to an arbitration must be given a full and fair opportunity to present material evidence that is not cumulative. Bridgeport v. Kasper Group, Inc., supra, 278 Conn. 466. If the panel refuses evidence that is material, the challenging party must still show substantial prejudice, meaning that it was likely to affect the result. Krassner v. Ansonia, 100 Conn. App. 203, 208-209, 917 A.2d 70 (2007). Arbitrators have reinstated employees after listening to evidence of disparate treatment of similarly situated employees, evidence which the panel in the present case refused even to hear. These arbitration decisions, in which the arbitrators not only consider but also rely on evidence of disparate discriminatory treatment of similarly situated employees to reinstate an employee who was terminated, support a showing of substantial prejudice. In the present case, Judge Hale found that the evidence is “very pertinent” to the question of remedy, which although not necessarily determinative, was important evidence. I believe these findings, recognizing that the remedy was the real issue to which the evidence pertained, satisfied the necessary showing of substantial prejudice. The Krassner v. Ansonia case emphasizes that to establish the substantial prejudice that one needs to show to vacate an award, it suffices if the excluded evidence is likely to affect the result. See id., 209. The burden is not to show that the evidence, if admitted, would have dictated the result with certainty.

I would affirm Judge Hale’s judgment.

       Although Rodriguez-Davila agreed to participate in this program, during his arbitration hearing concerning the termination of his employment, he could not recall attending anger management counseling nor could he detail the content of the program.

       Rodriguez testified during the arbitration hearing that Rodriguez-Davila was “talking at [him] aggressively” and pointing at him.

       According to the letter, the defendant’s workplace violence policy states that “the threat of violence is defined as: Any comment or behavior that would be interpreted by a reasonable person as indicating the potential of physical violence toward people or property.” (Internal quotation marks omitted.) Although the language is not included in the letter, the defendant’s policy also states that “[a]ny person who is in violation of this policy will be subject to disciplinary action, up to and including employment dismissal.”

       The plaintiff wanted to introduce documentary evidence and testimony of the decision maker in Bowman’s case.

       Before Parker made his ruling, he also stated: “So, the first Bowman [violation] I think is very appropriate. The second one, I’m not sure because there is no discipline issued to him prior to or on the same date of this grievant [Rodriguez-Davila]. So, you’re asking this again to something that happened after the fact.”

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Because we agree with the defendant that Rodriguez-Davila was not substantially prejudiced or denied a full and fair hearing by the arbitrator’s evidentiary ruling, we do not address its claim that the court’s decision to vacate the arbitration award violated public policy.

       Even on the limited record before us, we note that there are meaningful differences between Bowman’s and Rodriguez-Davila’s circumstances. Significantly, as noted, Rodriguez-Davila entered into a last chance agreement after his first suspension, and he agreed to attend anger management counseling. Bowman never made such an agreement or was ever told by the defendant that anger management counseling was appropriate. Instead, the defendant recommended that Bowman contact the employee assistance program “to address issues that may interfere with [Bowman’s] ability to perform the duties of [his] job.” Additionally, the panel noted that RodriguezDavila could not recall attending his anger management counseling sessions. Rodriguez-Davila’s failure to take advantage of efforts made by the defendant to help him with his anger management problems appears to be an important factor for the panel. There is nothing in the record to suggest that Bowman also ignored attempts by the defendant to help him with any anger management issues he may have had. Moreover, although Bowman and RodriguezDavila both worked for the defendant, they worked in different divisions. Specifically, Bowman worked for the department of emergency services and telecommunications in the public safety dispatch center while Rodriguez-Davila worked for the office of human relations and then the economic development division.

       In ids dissent, Judge Flynn argues that: “Arbitrators have reinstated employees after listening to evidence of disparate treatment of similarly situated employees, evidence which the panel in the present case refused even to hear. These arbitration decisions, in which the arbitrators not only consider but also rely on evidence of disparate discriminatory treatment of similarly situated employees to reinstate an employee who was terminated, support a showing of substantial prejudice.” While we do not doubt that some other panels have been persuaded by evidence of disparate treatment in previous cases, the defendant has not established that the excluded evidence would have likely changed the outcome in this case.

       When the city notified Kasper that it originally had been selected to design the school, it also sent Kasper a draft contract. A representative of the city, however, never signed the contract. Bridgeport v. Kasper Group, Inc., supra, 278 Conn. 468.

       The city claimed that Pinto’s testimony established that any contract was procured illegally, and it refuted Kasper’s argument that a prior course of dealing had been established between the parties. Bridgeport v. Kasper Group, Inc., supra, 278 Conn. 472.

       Although the excluded evidence in McCann consisted of stipulated agreements, which expressly provided that they were not to be used as precedent in other cases; McCann v. Dept. of Environmental Protection, supra, 288 Conn. 212-13; we find the court’s analysis of the full and fair hearing standard to be germane.

       “It is well understood in labor relations that discipline must not be arbitrary, capricious and discriminatory, that, for instance, like offenses must be treated in similar fashion.” Bridgeport v. Bridgeport Fire Fighters, IAFF, Local 834, 97 Lab. Arb. Rep. (BNA) 327, 331 (1991) (Freedman, Arb.).

       Another employee described B as “ ‘aggressive’ ” and “ Very intimidating,’ ” who swore at her, taking issue that she wrote a report about him, and then warned her that “she better watch out.”

       “In arbitration, termination is regarded as the industrial equivalent of capital punishment, therefore, this termination, to be sustained, must pass both the just cause test and also be procedurally correct.” Bridgeport v. Bridgeport Fire Fighters, IAFF, Local 834, 97 Lab. Arb. Rep. (BNA) 327, 330 (1991) (Freedman, Arb.).

       Recent case law dealing with a different issue also has mentioned without attribution the seven part Enterprise Wire Co. test in AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 6 A.3d 1142 (2010). “The [arbitrator utilized, as guidance in her deliberations, those certain elements of just cause that can be restated as follows:
      “1. Was the employee forewarned of the consequences of [her] misconduct?
      “2. Was the [e]mployer’s rule or order reasonably related to safe and efficient operations?
      “3. Did the [e]mployer, before administering the discipline, investigate to discover whether the employee did in fact violate or disobey a rule or order?
      “4. Was the [e]mployer’s investigation conducted fairly and objectively?
      “5. Did the investigation produce substantial evidence or proof that the employee was guilty as charged?
      “6. Has the [e]mployer applied its rules, orders andpenalties evenhandedly and without discrimination?
      “7. Was the degree of discipline reasonably related to the seriousness of the employee’s proven offense and the employee’s past record?” (Internal quotation marks omitted.) Id., 829-30.


author: GRUENDEL, J.

text:
    WYATT ENERGY, INC. v. MOTIVA ENTERPRISES, LLC, ET AL.
    (AC 31917) (AC 31918)
    Gruendel, Robinson and Pellegrino, Js.

      Argued March 22 —
    officially released May 17, 2011

      Robert A. Izard, Jr., and Mark P. Kindall, for the appellant (plaintiff).

      Sheila A. Huddleston and Paul D. Sanson, with whom, on the brief, was Robert R. Simpson, for the appellees (defendants).
   Opinion

GRUENDEL, J.

In this breach of contract action, the plaintiff, Wyatt Energy, Inc. (Wyatt), appeals from the judgment of the trial court, rendered after a bench trial, in favor of the defendants, Motiva Enterprises, LLC (Motiva), Shell Oil Company and its successor Shell Oil Products Company, LLC (Shell) and Equiva Trading Company. On appeal, Wyatt claims that the court improperly (1) failed to consider whether its conduct in breach of contract was justified by a potential antitrust violation, (2) applied an incorrect legal standard in determining the relevant product and geographic markets applicable to the court’s antitrust analysis, (3) failed to find an actual antitrust violation justifying its conduct, (4) concluded that its conduct constituted a breach of contract and (5) awarded Motiva damages based on speculation. We disagree and, accordingly, affirm the judgment of the trial court.

The present dispute is the result of a series of events over one decade in the making. On May 1, 1997, Wyatt and Shell entered into an agreement (agreement) for Shell’s exclusive use of logistical and storage services associated with Wyatt’s port terminal (Wyatt terminal), located in New Haven harbor. The agreement was to run for ten years, from May 1, 1997, through April 30, 2007. Additionally, the agreement included the following operative provisions:

“F) RIGHT OF FIRST REFUSAL

“If . . . Wyatt receives or solicits a bona fide written offer of purchase for the [Wyatt terminal] which Wyatt intends to accept, it shall provide Shell with written notice thereof, together with a copy of such written offer. Shell shall have the excusive right and option within forty-five (45) days of the date of its receipt of such written notice to enter into a binding agreement with Wyatt for the purchase of the [Wyatt terminal] . . . upon the terms and conditions set forth in such written offer. . . . Wyatt shall be free to sell the [Wyatt terminal] to [a] third party [provided that] . . . [a]ny such third party shall be bound to accept assignment of this [agreement and honor all terms and obligations [thereto] ....

* * *

“13. DEFAULT

“Upon default, the non-defaulting party shall, within thirty (30) days of knowledge thereof, notify, in writing, the defaulting party of the particulars of such default and the defaulting party shall have thirty (30) days thereafter to cure such default. ...”

In September, 1998, Shell assigned its interest in the agreement to Motiva. In August, 1999, Wyatt was approached by Williams Energy Ventures, Inc. (Williams Energy), regarding a possible purchase of the Wyatt terminal and, on November 3, 1999, Williams Energy submitted a nonbinding proposal to Wyatt to purchase the Wyatt terminal for between $30.75 million and $32 million. Motiva, which had independently assessed the value of the Wyatt terminal at between $14 million and $20 million, was unwilling to match Williams Energy’s proposed purchase offer as of November, 1999. Additionally, in May, 2000, Motiva purchased the port terminal owned by Cargill, Inc. (Cargill terminal), which also was located in New Haven harbor.

On June 8, 2000, Wyatt wrote to Motiva, claiming that Motiva’s purchase of the Cargill terminal undermined the purpose of the agreement, which, according to Wyatt, was that in exchange for Wyatt granting Motiva complete control over the Wyatt terminal, Motiva would use the Wyatt terminal as its sole terminal in the New Haven area. On June 15, 2000, Williams Energy advised Wyatt that, given Motiva’s exclusive rights under the agreement, the value of the Wyatt terminal was $15.7 million, but that were the agreement not in place, the value of the Wyatt terminal would be worth approximately double, or $31.375 million. Soon thereafter, on June 22, 2000, Williams Energy tendered to Wyatt its first binding written offer to purchase the Wyatt terminal for $31.375 million, based on Wyatt’s representations that it had the right to terminate the agreement and, in fact, that Wyatt had taken action in doing so. The following day, June 23,2000, Wyatt wrote to Motiva, unilaterally terminating the agreement due to what Wyatt claimed to be Motiva’s material breaches thereto. On September 1, 2000, Wyatt sold the Wyatt terminal to Williams Energy without requiring Williams Energy to assume Wyatt’s obligations under the agreement.

Shortly after Motiva’s receipt of Wyatt’s termination notice, Motiva sent Wyatt a demand for arbitration, alleging that Wyatt’s conduct constituted a breach of the agreement. In response, on July 23, 2002, Wyatt filed suit against Motiva, alleging, inter alia, breach of contract. Motiva then filed, inter alia, a counterclaim against Wyatt for breach of contract, claiming that Wyatt had committed a material breach of the agreement when, “[without proper cause, Wyatt unilaterally terminated the [agreement] on June 23, 2000.” In reply to Motiva’s counterclaim, Wyatt asserted, inter alia, a special defense of illegality premised on alleged antitrust violations stemming from Motiva’s purchase of the Cargill terminal. On August 29, 2003, Motiva moved for summary judgment on, inter alia, Wyatt’s special defense of illegality, which the court granted on December 8, 2003, precluding Wyatt from presenting a special defense of illegality in the ensuing bench trial.

Following a bench trial on Motiva’s counterclaim for breach of contract, the court rendered judgment in favor of Motiva and Wyatt appealed to this court, claiming, inter alia, that the trial court had improperly granted Motiva’s motion for summary judgment with respect to Wyatt’s special defense of illegality. In reversing the trial court’s judgment and remanding the case for a new trial, this court held that Wyatt was entitled to present evidence that, as a party to the agreement, it may be subject to liability given the potential antitrust violations associated with Motiva’s acquisition of the Cargill terminal. See Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 104 Conn. App. 685, 700-701, 936 A.2d 280 (2007), cert. denied, 286 Conn. 901, 943 A.2d 1103 (2008).

Accordingly, on remand, Wyatt was permitted to present evidence as to its special defense of illegality during a new bench trial that took place over three weeks, from June 8 to June 26, 2009. Nonetheless, following posttrial briefing, the court, in its January 11,2010 memorandum of decision, concluded that Wyatt had failed to prove the elements of its special defense of illegality, rendering judgment in favor of Motiva on its counterclaim for breach of contract. In addition to awarding Motiva approximately $2.6 million in damages and $1.7 million in attorney’s fees and costs, the court granted the defendants’ motion for prejudgment interest in the amount of $814,303.72. These appeals followed. Additional facts will be set forth as necessary.

I

Wyatt’s first claim is that the court improperly failed to consider whether its conduct in breach of the agreement was justified by a potential, as opposed to an actual, antitrust violation. Specifically, Wyatt argues that the trial court incorrectly read this court’s decision in Wyatt Energy, Inc., as requiring that, for Wyatt to prevail on its special defense of illegality, it had to prove the existence of an actual antitrust violation, rather than showing that its conduct in breach of the agreement was justified by an objectively reasonable belief that Motiva’s purchase of the Cargill terminal created a potential antitrust violation. Our review of Wyatt Energy, Inc., as well as the trial court’s memorandum of decision rejecting Wyatt’s special defense, demonstrates clearly that Wyatt’s first claim is without merit.

The principle issue addressed in Wyatt Energy, Inc., was the propriety of the trial court’s decision granting summary judgment in favor of Motiva on Wyatt’s special defense of illegality. Wyatt Energy, Inc. v. Motiva Enterprises, LLC, supra, 104 Conn. App. 692-701. In concluding that the trial court incorrectly had precluded Wyatt from presenting its special defense during the initial trial, this court made three definitive rulings in Wyatt Energy, Inc. First, as a preliminary issue, the trial court in Wyatt Energy, Inc., incorrectly applied Texas law, rather than Connecticut law, “when determining whether illegality in fact did exist in this particular case.” Id., 695. Second, “under the circumstances of the present case, in which antitrust violations are alleged . . . the legality of the . . . agreement and the determination concerning its capability of being performed lawfully [could not] be ascertained by looking only to the time of its formation.” Id., 697-98. And finally, summary judgment was improper because “genuine issues of fact exist[ed] . . . concerning whether the . . . agreement [was] related to an unlawful arrangement or combination in restraint of competition.” Id., 699-700.

Despite Wyatt’s claim to the contrary in the present case, this court’s holding in Wyatt Energy, Inc., does not stand for the proposition that Wyatt could prevail on its special defense of illegality by showing merely that it had an objectively reasonable basis to believe that Motiva’s acquisition of the Cargill terminal created the possibility of an antitrust act violation. Indeed, the focus of this court’s holding in Wyatt Energy, Inc., was whether Wyatt could show that Motiva’s acquisition of the Cargill terminal violated the antitrust act, specifically §§ 35-26 and 35-27. See id., 692-700. Under both §§ 35-26 and 35-27, Wyatt’s perception, either objective or subjective, of how Motiva’s acquisition of the Cargill terminal affected the legality of the agreement under the antitrust act is a nonissue. Rather, the issue is whether Motiva’s acquisition of the Cargill terminal actually rendered the agreement unlawful under either of those provisions of the antitrust act. The fact that this court stated in Wyatt Energy, Inc., that “Wyatt . . . had an interest in being able to put on [its special] defense at trial because, as a party to a contract that created . . . a potentially violative combination, it might have exposure under our antitrust laws”; id., 700 n.12; did not excuse Wyatt from proving the essential element of its special defense — an actual antitrust act violation. It would be disingenuous to conclude, as Wyatt argues, that Wyatt could prevail on its special defense by showing merely a potential violation of § 35-26 or § 35-27. Moreover, the court’s memorandum of decision analyzes thoroughly Wyatt’s special defense of illegality with respect to the standards applicable to §§ 35-26 and 35-27, an analysis in complete accord with our holding in Wyatt Energy, Inc. Accordingly, Wyatt’s claim is without merit.

II

Next, Wyatt claims that the court applied an incorrect legal standard in determining the relevant product and geographic markets applicable to the court’s antitrust analysis. Specifically, Wyatt argues that by incorrectly defining the relevant product and geographic markets, the court’s antitrust analysis was fundamentally flawed, thereby warranting reversal and a new trial. We disagree.

The following additional facts are relevant to the disposition of this claim. To consider adequately the nature of Wyatt’s special defense of antitrust violations, the court was called upon to make a threshold determination as to the relevant product and geographic markets that govern a substantive antitrust analysis. Indeed, without first defining the relevant product and geographic markets applicable to alleged antitrust violations, the court would not be in a position to determine whether antitrust act violations were occurring, or had occurred previously. See Bridgeport Harbour Place I, LLC v. Ganim, 111 Conn. App. 197, 201, 958 A.2d 210 (2008), cert. granted, 290 Conn. 906, 962 A.2d 793 (2009); see also Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962). As such, both parties presented extensive expert testimony in advance of their respective definitions of the relevant product and geographic markets applicable to Wyatt’s antitrust defense.

Specifically, Wyatt presented the testimony of Michael A. Williams, an economist retained to “evaluate the competitive implications of Motiva’s acquisition of the Cargill terminal.” Williams described that in evaluating Motiva’s acquisition of the Cargill terminal, his analysis of the relevant product market was limited to “terminalling services” — or logistical services that both Wyatt and Motiva provide to third-party end users. Additionally, with respect to the relevant geographic market, Williams, in applying a conservative approach, focused his analysis on the state of Connecticut. Utilizing these market definitions, Williams opined that Motiva’s acquisition of the Cargill terminal “likely would have led to the exercise of substantial market or monopoly power by Motiva . . . .”

At the conclusion of Williams’ testimony, the court heard from Motiva’s expert economist, Joseph P. Kalt, regarding his opinions of the “competitive implications” of Motiva’s acquisition of the Cargill terminal. Although Kalt also focused on terminalling services for purposes of defining the relevant product market, he explained that such services could not be viewed in isolation when conducting an antitrust analysis. Rather, Kalt described how different checks and balances within the terminalling services product market affected the competitive implications involved with the Motiva-Cargill transaction. Similarly, with respect to geographic market considerations, Kalt’s analysis did not focus exclusively on Connecticut, but also included other regional markets, particularly Rhode Island. In sum, Kalt opined that “based on the realities of this industry and this marketplace and the nature of the competition . . . [Motiva’s] acquisition of Cargill . . . did not portend [a substantial danger of anticompetitive] market power or monopoly . . . .”

In its memorandum of decision, the court explained that, with respect to defining the relevant product and geographic markets applicable to Wyatt’s antitrust allegations, Kalt’s testimony was more credible than that of Williams. Specifically, the court ruled that on the basis of the expert testimony presented, “Wyatt did not prove that had it not terminated the . . . [agreement, Motiva’s acquisition of the Cargill [t]erminai gave Motiva market power . . . within the relevant product market” in violation of the antitrust act. In so ruling, the court reviewed in detail the nature of Kalt’s testimony within the context of the particular antitrust act violations advanced by Wyatt in its special defense. Thus, on the basis of the product and geographic market definitions articulated by Kalt, the court concluded that Wyatt had not proven a violation of either § 35-26 or § 35-27.

Wyatt now claims that by adopting Kalt’s definitions of the relevant product and geographic markets, the court applied an incorrect legal standard when reviewing Wyatt’s allegations of antitrust act violations. As Wyatt argues, by adopting incorrect definitions of the relevant product and geographic markets, the court’s antitrust analysis was fundamentally flawed.

We begin by setting forth our standard of review. “[P]roper analysis in an antitrust case first requires [a] determination of the relevant market .... The relevant market for purposes of antitrust litigation is the area of effective competition within which the defendant operates.” (Citations omitted; internal quotation marks omitted.) Miller's Pond Co., LLC v. New London, 273 Conn. 786, 814, 873 A.2d 965 (2005). “The area of effective competition must be determined by reference to a product market (the line of commerce) and a geographic market (the section of the country).” (Internal quotation marks omitted.) Brown Shoe Co. v. United States, supra, 370 U.S. 324. “Market definition generally is a deeply fact-intensive inquiry . . . .” (Internal quotation marks omitted.) Miller’s Pond Co., LLC v. New London, supra, 814.

“Questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence ... we give great deference to its findings.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P. C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006); see also Practice Book § 60-5. “The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court’s ruling.” (Internal quotation marks omitted.) DiRienzo Mechanical Contractors, Inc. v. Salce Contracting Associates, Inc., 122 Conn. App. 163, 176, 998 A.2d 820, cert. denied, 298 Conn. 910, 4 A.3d 831 (2010).

In the present case, the essence of Wyatt’s claim is that by rejecting its expert’s definitions of the relevant product and geographic markets, the court’s antitrust analysis was improper. Wyatt contends that, given Williams’ testimony, the court incorrectly found that the relevant product and geographic markets extended beyond terminalling services and Connecticut, respectively. The record is clear, however, that the court did engage in a deeply fact intensive inquiry when defining the relevant product and geographic markets applicable to Wyatt’s special defense. See Miller’s Pond Co., LLC v. New London, supra, 273 Conn. 814. The record is equally clear that the court’s decision to credit explicitly the testimony of Motiva’s expert, rather than that of Wyatt’s, is supported adequately by the evidence in this case. Although Wyatt may disagree with the court’s decision to define the relevant product and geographic markets according to Kalt’s reasoning, there is nothing improper in the way the court’s antitrust analysis proceeded. To the contrary, our review of the record confirms that the court’s decision to adopt Kalt’s definitions of the product and geographic markets was based on a thorough consideration of all of the relevant expert testimony presented. Therefore, we conclude that the court’s determination with respect to the relevant product and geographic markets finds ample support in the record and the court’s findings attendant thereto are not clearly erroneous. Accordingly, Wyatt’s claim to the contrary fails.

Ill

Next, Wyatt argues that the court improperly failed to conclude that Motiva’s acquisition of the Cargill terminal resulted in actual antitrust violations. Specifically, Wyatt contends that the court ignored evidence that, after acquiring the Cargill terminal, Motiva engaged in clearly anticompetitive behavior as circumscribed by the antitrust act, particularly the intentional reduction of business activity at the Wyatt terminal. We are not persuaded.

Disposition of this claim does not require aprotracted analysis. The entirety of Wyatt’s principal brief addressing this claim is premised on the argument that, “subsequent to Motiva’s purchase of the Cargill terminal, [Motiva] was using its control over the Wyatt [terminal] to reduce [business activity] at the Wyatt terminal . . . .” This argument focuses on the allegedly anticompetitive effects that Wyatt suffered as a result of Motiva’s acquisition of the Cargill terminal. It is undisputed, however, that to prevail on its special defense, Wyatt was required to demonstrate more than an individualized harm. Because “[t]he antitrust laws protect consumers by prohibiting agreements that unreasonably restrain overall competition ... in order to fulfill the requirement of showing an actual adverse effect in the relevant market, the plaintiff must show more than just that he was harmed by the defendant’s conduct.” (Internal quotation marks omitted.) Clorox Co. v. Sterling Winthrop, Inc., 117 F.3d 50, 57 (2d Cir. 1997). Therefore, assuming arguendo the veracity of Wyatt’s claim that Motiva’s acquisition of the Cargill terminal resulted in anticompetitive effects at the Wyatt terminal, Wyatt would nonetheless be unsuccessful in demonstrating violations of the antitrust act. By failing to prove that Motiva’s acquisition of the Cargill terminal resulted in actual anticompetitive effects in the relevant market, Wyatt could not prevail on its special defense. See George Haug Co. v. Rolls Royce Motor Cars, Inc., 148 F.3d 136, 139 (2d Cir. 1998) (“[t]he antitrust injury requirement obligates a plaintiff to demonstrate, as a threshold matter, that the challenged action had an actual adverse effect on competition as a whole in the relevant market; to prove that it has been harmed as an individual competitor will not suffice” [emphasis in original; internal quotation marks omitted]). Accordingly, Wyatt’s claim cannot be sustained.

IV

Wyatt next claims that the court improperly concluded that by unilaterally terminating the agreement and selling the Wyatt terminal to Williams Energy, Wyatt committed a material breach of the agreement. Specifically, Wyatt argues that by acquiring the Cargill terminal and expressing a persistent unwillingness to exercise its right of first refusal under paragraph F, Motiva anticipatorily repudiated the agreement, thereby excusing Wyatt’s continued performance thereof. We disagree.

The following additional facts are relevant to the disposition of this claim. During trial, Motiva alleged, inter alia, that by failing to provide notice of the particulars of its default under the agreement and by failing to provide a thirty day cure period to remedy the alleged defaults, Wyatt materially breached paragraph 13 of the agreement. In opposition, Wyatt maintained that its continued performance under the agreement was excused by Motiva’s anticipatory repudiation in purchasing the Cargill terminal and, “in effect, stating [that Motiva would] not use the Wyatt [terminal exclusively] as contemplated by the [agreement.” (Internal quotation marks omitted.)

In its memorandum of decision, the court rejected Wyatt’s anticipatory repudiation argument, finding that “[t]here was no credible evidence presented excusing Wyatt of its obligation to provide Motiva time to cure” under paragraph 13 of the agreement. As the court explained, “[assuming arguendo that the June 23, 2000 letter to Motiva set out the particulars of material breaches to the [agreement on the part of Motiva, Motiva still had thirty . . . days thereafter to cure such default as clearly set out in [paragraph] 13 . . . .” (Internal quotation marks omitted.) As such, the court concluded that Wyatt’s unilateral termination of the agreement constituted a material breach pursuant to paragraph 13.

Before addressing the merits of Wyatt’s claim, we begin by setting forth the standard of review and legal principles governing our analysis. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. . . . [C]ourts do not unmake bargains unwisely made. Absent other infirmities, bargains moved on calculated considerations, and whether provident or improvident, are entitled nevertheless to sanctions of the law. . . . Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement .... As stated by our Supreme Court, a presumption that the language used is definitive arises when . . . the contract at issue is between sophisticated parties and is commercial in nature. . . .

“Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court’s findings of fact under the clearly erroneous standard. . . . 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.” (Citation omitted; internal quotation marks omitted.) Neubig v. Luanci Construction, LLC, 124 Conn. App. 425, 432-33, 4 A.3d 1273 (2010).

Here, Wyatt claims that “Motiva’s decision to buy the Cargill terminal, move all of its customers to that terminal and block Wyatt from competing for their business was an anticipatory repudiation of the very essence of the [agreement . . . .’’As Wyatt argues, Motiva’s anticipatory repudiation of the agreement excused its continued adherence to the terms thereof, including paragraph 13. As a manifestation of the parties’ intent, however, the essence of the agreement is to be inteipreted, whenever possible, according to its terms. See William Raveis Real Estate, Inc. v. Newtown Group Properties Ltd. Partnership, 95 Conn. App. 772, 776, 898 A.2d 265 (2006) (“[a] contract must be construed to effectuate the intent of the parties, which is determined from the language used” [internal quotation marks omitted]). Similarly, the determination of whether a party has breached the terms of an agreement is an analysis rooted in the specific factual circumstances giving rise to a contract dispute as found, in this case, by the trial court. See Neubig v. Luanci Construction, LLC, supra, 124 Conn. App. 433. In contrast to Wyatt’s assertions, the record in the case at bar demonstrates, as a threshold consideration, that Motiva’s acquisition of the Car-gill terminal was not prohibited by any provision of the agreement itself. Thus, Wyatt’s argument that Motiva’s acquisition of the Cargill terminal constituted an anticipatory repudiation of the agreement fails at the outset. Nonetheless, assuming arguendo that Motiva had anticipatorily repudiated the agreement, nothing in the record demonstrates that the court’s conclusion that “Motiva still had ‘thirty . . . days [from the time it was notified of its default] to cure such default’ as clearly set out in [paragraph] 13” was clearly erroneous. Indeed, the record demonstrates unequivocally that the court was completely justified in ruling that Wyatt had failed to comply with paragraph 13 by not allowing Motiva to cure its alleged default within the time provided for under that provision of the agreement. The fact that Wyatt may have perceived Motiva’s conduct as immediately excusing its continued performance does not trump the governing protocol provided for by the unambiguous language of paragraph 13. “Although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement . . . .” (Internal quotation marks omitted.) Neubig v. Luanci Construction, LLC, supra, 432. Furthermore, where, as here, the contract “is between sophisticated parties and is commercial in nature”; id., 433; there is a “presumption that the language used [in the contract] is definitive . . . .” Id., 432-33.

In sum, we conclude, as did the court, that “[n]othing in the [agreement stated that Wyatt was excused from providing Motiva the . . . opportunity to cure ... for any reason including Wyatt’s belief that Motiva would not cure the default.” In light of the facts as found by the court, as well as the unambiguous language of the agreement, it is readily apparent that the court properly determined that Wyatt’s conduct amounted to a material breach. Accordingly, Wyatt’s claim fails.

V

Wyatt’s remaining claim is that the court improperly awarded Motiva contract damages on the basis of illegitimate speculation and unsupported assumptions. Specifically, Wyatt argues that the court’s damages award was, in part, premised on “a hypothetical renewal of [a] third-party contract between Motiva and [the] Citgo [Petroleum Corporation (Citgo)].” We disagree.

The following additional facts are relevant to the resolution of this claim. In support of the damages element of its breach of contract claim, Motiva presented the expert testimony of Daniel Grinstead, an economist and the general manager of strategy and planning and business development for Motiva. Grinstead explained that Citgo was Motiva’s primary customer at the Wyatt terminal and, at the time that Wyatt terminated the agreement, Citgo and Motiva were parties to a contract set to expire in approximately two years, or August, 2002 (Citgo contract). The terms of the Citgo contract also called for automatic one year renewals “unless terminated by either party upon one hundred eighty (180) days written notice prior to the commencement of the next term.” As Grinstead further explained, given the historical earnings and revenue generated from the Motiva-Citgo relationship, Motiva would have earned a specific gross revenue for the remaining two years of the Citgo contract, had Wyatt not unilaterally terminated the agreement.

In addition to Grinstead, Motiva presented the testimony of Julie Barnett, the manager of product exchange and terminal services for Citgo. Barnett “indicated that Citgo never intended to use any New Haven facility other than the Wyatt terminal at any time ... [a] statement . . . supported by a later execution of a terminalling agreement between Citgo and Williams Energy” for a three year, automatically renewing, term. Because of the strategic business importance Citgo afforded to its New Haven presence, Barnett testified that Citgo would have continued its relationship with Motiva at the Wyatt terminal “as long as they provided good service.” No evidence was presented to show that the services provided by Motiva to Citgo were anything less than satisfactory.

On the basis of the testimony presented by Grinstead and Barnett, as well as other evidence offered by Motiva to support its damages claim, the court concluded that, given Wyatt’s breach of the agreement on June 23, 2000, Motiva was entitled to damages equal to the lost gross revenue Motiva would have earned from the two years remaining on the Citgo contract. Additionally, although mindful of the possibility that the Motiva-Citgo relationship could end at the expiration of the Citgo contract, Motiva had proven to a reasonable certainty that it would have remained contractual partners with Citgo throughout the ten year term of the agreement but for Wyatt’s unjustified termination thereof. Thus, the court also awarded Motiva damages based on historical earnings for the lost revenue it would have earned from its Citgo relationship for the entirety of the approximately seven years remaining under the agreement.

On appeal, Wyatt does not argue that the court incorrectly awarded damages to Motiva for the two years that remained on the Citgo contract at the time Wyatt terminated the agreement. Instead, Wyatt challenges the court’s damages award with respect to the five additional years that remained under the agreement after the Citgo contract was set to expire. As Wyatt argues, the court incorrectly “awarded [Motiva] damages based on the lost [revenue] from Citgo . . . for the five years after the expiration of the Citgo contract, based on the assumption that, had the Wyatt-Motiva [agreement remained in place after Motiva’s purchase of the Cargill [t]erminal, Citgo and Motiva would have extended the terms of their original [five] year contract from 2002 through 2007.” (Emphasis omitted.)

“It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . Although damages often are not susceptible of exact pecuniary computation and must be left largely to the sound judgment of the trier . . . this situation does not invalidate a damage award as long as the evidence afforded a basis for a reasonable estimate by the [trier] of that amount. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 689-90, 697 A.2d 1137 (1997).

In the present case, we conclude that the court’s award of damages for the lost gross revenue that Motiva would have earned for the five years remaining under the agreement after Wyatt’s breach thereof through a renewal of the Citgo contract was not clearly erroneous. The court’s decision in this regard was premised both on Barnett’s testimony that Citgo would have remained a Motiva customer at the Wyatt terminal “as long as [Motiva] provided good service,” as well as Grinstead’s expert testimony with respect to Motiva’s lost gross revenue from the Citgo contract as a result of Wyatt’s breach of the agreement. Additionally, given the automatic renewal provision of the Citgo contract, “the existence of the same provision in the Citgo/Williams [Energy] contract . . . Citgo’s refusal to move to the Cargill terminal following Motiva’s purchase of the Car-gill [t]erminal and Citgo’s contracting with Williams [Energy] ... to remain at the Wyatt terminal,” proved to a reasonable certainty “that Citgo would have remained a customer of Motiva at the Wyatt terminal” throughout the life of the agreement. Notwithstanding Wyatt’s argument to the contrary, the court’s memorandum of decision demonstrates that its award of damages was based not on mere speculation or assumptions, but on its evaluation of the evidence presented in support of Motiva’s damages claim; evidence that afforded a basis for a reasonable estimate of Motiva’s total damages as sustained by Wyatt’s breach of the agreement. See Lawson v. Whitey’s Frame Shop, supra, 241 Conn. 689-90. Accordingly, Wyatt’s claim is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

       Throughout this opinion, we refer to the parties individually by name and to the defendants collectively as the defendants.

       Williams Energy subsequently changed its name to Magellan Terminal Holdings, L.P.

       Despite Wyatt’s assertions, the agreement does not require explicitly that Motiva use only the Wyatt terminal. Rather, it is Wyatt that it is bound explicitly to offer the Wyatt terminal for Motiva’s exclusive use.

       Specifically, Wyatt alleged that by “purchasing the [Cargill] terminal. . . and ... in effect, stating that it [would] not use the Wyatt [terminal exclusively] as contemplated by the [agreement,” Motiva’s conduct amounted to a material breach. Contrary to that assertion, we note that no provision of the agreement limits Motiva’s right to purchase and/or utilize terminals other than the Wyatt terminal.

       Section 14 of the agreement called for mandatory arbitration in the event of a claim “arising out of or related to the [agreement . . . .”

       All of the causes of action brought originally by Wyatt were subsequently withdrawn or found subject to arbitration under the agreement.

       Initially, Wyatt asserted that Motiva’s acquisition of the Cargill terminal rendered the agreement illegal under three provisions of the Connecticut Antitrust Act (antitrust act), General Statutes § 35-24 et seq., specifically §§ 35-26,35-27 and 35-29. At the 2009 bench trial and in this appeal, however, Wyatt relies only on §§ 35-26 and 35-27 as the basis for its special defense of illegality.

       Although the agreement called explicitly for the application of Texas substantive law in determining the “rights and obligations of the parties” under the agreement, this court explained in Wyatt Energy, Inc., that, because Wyatt’s special defense of illegality was premised on alleged violations of the antitrust act, Connecticut law governed the “threshold inquiry into the existence of illegality . . . .” Wyatt Energy, Inc. v. Motiva Enterprises, LLC, supra, 104 Conn. App. 696. Additionally, we note that for purposes of appellate review of Wyatt’s claims in the present case, our analysis is governed by Connecticut law. We note further that General Statutes § 35-44b provides: “It is the intent of the General Assembly that in construing sections [of the antitrust act] "the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes.” “Accordingly, we follow federal precedent when we interpret the [antitrust act] unless the text of our antitrust statutes, or other pertinent state law, requires us to interpret it differently.” Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 15-16, 664 A.2d 719 (1995).

       General Statutes § 35-26 provides: “Every contract, combination, or conspiracy in restraint of any part of trade or commerce is unlawful.”
      General Statutes § 35-27 provides: “Every contract, combination, or conspiracy to monopolize, or attempt to monopolize, or monopolization of any part of trade or commerce is unlawful.”

       Additionally, Motiva alleged, and the court agreed, that by failing to assign its agreement obligations to Williams Energy upon sale of the Wyatt terminal, Wyatt committed a material breach of paragraph F of the agreement. Wyatt has not addressed this aspect of the court’s ruling with respect to its breach of the agreement on appeal. Instead, Wyatt relies on its claim that the entirety of its obligations under the agreement was excused by Motiva’s anticipatory repudiation thereof. Accordingly, our analysis is limited to Wyatt’s anticipatory repudiation claim with respect to paragraph 13 only.

       The court found specifically that, pursuant to Texas law, Motiva’s damages should be evaluated according to gross revenue, not net profit. Wyatt has not challenged this aspect of the court’s decision on appeal.