author: PETERS, J.

text:
    CHRISTINA PAYLAN v. ST. MARY’S HOSPITAL CORPORATION
    (AC 29811)
    Bishop, Lavine and Peters, Js.

      Argued September 9
    officially released December 1, 2009

      John R. Williams, with whom, on the brief, was John O. Kim, for the appellant (plaintiff).

      Lisa A. Zaccardelli, with whom, on the brief, was David M. Sheridan, for the appellee (defendant).
   Opinion

PETERS, J.

In this employment discrimination case, the principal issue is the admissibility of evidence proffered in support of the principle that “the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” Beers v. Bayliner Marine Corp., 236 Conn. 769, 775, 675 A.2d 829 (1996). One of the conditions that Beers requires a litigant to satisfy to invoke this principle is that the alleged spoliator was “on notice that the evidence should be preserved.” Id., 778. In this appeal, the plaintiff argues that, pursuant to Beers, she is entitled to a new trial because the trial court improperly precluded her from informing the jury of the existence of a court order to preserve a computer hard drive allegedly containing evidence of the defendant’s discriminatory conduct. Because of the plaintiffs failure to introduce evidence of another Beers condition, namely, that the defendant intentionally destroyed the allegedly inculpa-tory computer hard drive, we hold that the court’s ruling was harmless error and affirm its judgment in favor of the defendant.

On July 18, 2003, the plaintiff, Christina Paylan, filed a complaint against her former employer, the defendant, St. Mary’s Hospital Corporation, alleging, in addition to other counts, discrimination on the basis of gender in violation of General Statutes § 46a-60 (a) (l) and retaliation in violation of § 46a-60 (a) (4). The jury found in favor of the defendant on both claims. The plaintiff has appealed from the judgment of the court accepting the juiy verdict.

The plaintiff maintains that she is entitled to a new trial because two allegedly improper evidentiary rulings by the court, Scholl, J., impaired her ability to prove her claim of gender discrimination. She contests the validity of the court’s ruling precluding her from offering evidence of (1) a court order for the preservation of a computer allegedly containing an evaluation of her performance and (2) critical evaluations of other members of the defendant’s surgical staff who were retained in their employment while she was not. We are not persuaded that the plaintiff has established either of her claims to a new trial.

The following facts are undisputed. In February, 2003, the defendant, a teaching hospital with a five year long surgical residency program, hired the plaintiff to complete her fourth year of surgical residency. The employment contract stipulated that her employment would extend through June 30, 2003. In May, 2003, before the expiration of that term of employment, the plaintiff complained to a supervisory resident that she was being treated unfairly because of her gender. On June 11, 2003, Stanley J. Dudrick, a physician and head of the surgical residency program, notified the plaintiff by letter that, due to deficiencies in her performance, her contract would not be renewed for the following year.

I

In support of the plaintiffs complaint of employment discrimination and retaliation, she sought evidence to support her contention that the defendant altered the date of a negative evaluation of her performance. Although the document appeared to be dated March 29, 2003, the plaintiff suspected that it had in fact been created in late May, after she had voiced her complaint of gender discrimination. Accordingly, on June 20, 2005, she sought and obtained from the court, Devlin, J., an order requiring the defendant to preserve any computer hard drives containing evidence of a negative evaluation of her performance. Thereafter, on October 25, 2005, the court, Lager, J., ordered the defendant to provide the plaintiff with a copy of the metadata of this document. After examination of the metadata failed to reveal the date when the original document had in fact been created, the plaintiff sought access to the hard drive itself. On February 28, 2007, however, in a request for a supplemental order, the defendant informed the court that the hard drive in question had been reformatted after a crash of the hard drive. Subsequently, on April 10,2007, the defendant, in its objection to the plaintiffs motion for an order and sanctions, disclosed that the hard drive had been destroyed.

Relying on Beers v. Bayliner, supra, 236 Conn. 775, the plaintiff sought to inform the jury of the existence of Judge Devlin’s preservation order so that she would be entitled to a jury instruction permitting the jury to draw an adverse inference from the defendant’s destruction of the hard drive of the computer. The party seeking such an adverse inference under Beers must prove that (1) the spoliation was intentional, (2) the spoliated evidence is “relevant to the issue or matter for which the party seeks the inference,” and (3) “the party who seeks the inference . . . acted with due diligence with respect to the spoliated evidence. For example, the spoliator must be on notice that the evidence should be preserved.” Id., 778. On November 14, 2007, the court ruled, however, that the plaintiff would not be allowed to present evidence to the jury about Judge Devlin’s preservation order because, in the absence of a judicial determination that the order had been violated, such information would be unduly prejudicial to the defendant. In the same order, the court expressly allowed the plaintiff to present evidence concerning the destruction of the hard drive and deferred ruling on whether to instruct the jury that it could draw an adverse inference until after the evidence had been presented.

Our standard for review of the plaintiffs claim is well established. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did. . . . Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. . . . Finally, the standard in a civil case for determining whether an improper ruling was harmful is whether the . . . ruling [likely affected] the result. . . . Despite this deferential standard, the trial court’s discretion is not absolute. Provided the [litigant] demonstrates that substantial prejudice or injustice resulted, evidentiary rulings will be overturned on appeal [when] the record reveals that the trial court could not reasonably conclude as it did.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 128, 956 A.2d 1145 (2008).

We agree with the plaintiff that, in light of the importance of the hard drive to her ability to prove the circumstances of the nonrenewal of her employment contract, the court should have permitted her to inform the jury of the existence of a court order for its preservation. Without showing the existence of the court order, the plaintiff could not have established her entitlement to an adverse inference that is based on the unavailable evidence under the third prong of Beers. That conclusion does not, however, end the matter.

To succeed in her Beers claim, the plaintiff also would have had to establish the first requirement for a spoliation inference, namely, that “the evidence had been disposed of intentionally and not merely destroyed inadvertently.” Beers v. Bayliner Marine Corp., supra, 236 Conn. 777. Notwithstanding the court’s pretrial order permitting testimony regarding the crash of the defendant’s computer, the plaintiff failed to make any attempt in her direct testimony to show that the hard drive had been destroyed, let alone that it had been destroyed intentionally. The record establishes that the court did not preclude the plaintiff from presenting evidence concerning the defendant’s destruction of the hard drive, either in the pretrial order, explicitly allowing such evidence, or in any subsequent ruling at trial. Although the plaintiff cites an arguably ambiguous ruling with respect to some of her own testimony, she herself acknowledged at trial that there was no order “that we can’t talk about the fact that the computer got destroyed.” We note that the ruling to which the plaintiff refers came about on cross-examination, and there is nothing in the record to suggest that the offered testimony related to the hard drive. If the plaintiff had sought to offer such evidence, she could have done so on direct examination. The fact is that the plaintiff presented no such evidence.

In the absence of evidence that the defendant intentionally destroyed the computer hard drive that she sought to examine, the plaintiff has not established her right to ask the jury to draw a Beers spoliation inference. The court’s order precluding her from informing the jury of the existence of a preservation order for the computer was therefore harmless error.

II

The plaintiffs second claim challenges an order of the court precluding her from presenting evidence to the jury in support of her claim of disparate treatment by the defendant. To succeed in her discrimination claim under § 46a-60 (a) (1), the plaintiff had to prove that her employer took adverse action against her on the basis of her gender. In support of such a claim, a litigant may present circumstantial evidence from which an inference may be drawn that similarly situated individuals were treated more favorably than she was. Craine v. Trinity College, 259 Conn. 625, 639, 791 A.2d 518 (2002). Accordingly, the plaintiff argued at trial that the termination of her employment was inconsistent with the decisions made by the defendant about the retention of male surgical residents. She maintains that the court improperly prevented her from introducing evidence concerning the performance of male residents who were promoted to the next year in the residency program when she was not so promoted.

The evidence at trial in support of the plaintiffs claim of discrimination was mixed at best. The plaintiff acknowledged, in her testimony, that residents at different levels in the residency program have different responsibilities. That testimony was corroborated by the former chief resident, Shawn Tittle. In addition, as far as the record shows, only the plaintiff had been criticized for being untrustworthy, dishonest or deceitful and charged with neglect of her patient care responsibilities by leaving the hospital to go to the YMCA.

Ruling that comparisons between the plaintiff and individuals in other years of the residency program were not relevant because those individuals were not “similarly situated” to the plaintiff, the court permitted the plaintiff only to present evidence comparing herself to the one other fourth year resident in the program with her in 2003. In this appeal, the plaintiff challenges the validity of this ruling.

The parties disagree on the standard of review. The plaintiff argues that the court, may not, as a matter of law, exclude evidence of similarly situated employees because whether individuals are similarly situated presents a question of fact for the jury. The defendant argues that the court made an evidentiary ruling subject to an abuse of discretion standard of review. To resolve fully the plaintiffs claim, we must first determine whether, as a matter of law, the court had the authority to exclude evidence about potentially similarly situated individuals from consideration by the jury. Because we determine that the court did have that authority, we must also determine whether, in this case, the court abused its discretion in excluding the evidence of surgical residents in other program years.

A

The plaintiff first argues that, as a matter of law, the court improperly precluded the jury from determining whether, in her employment situation, she was similarly situated to the residents in different years of surgical training. As a question of law, the plaintiffs claim is entitled to plenary review by this court. See State v. Bereis, 117 Conn. App. 360, 373, 978 A.2d 1122 (2009).

In support other claim that the jury should determine whether all other surgical residents were similarly situated, the plaintiff relies on federal case law holding that “[w]hether two employees are similarly situated ordinarily presents a question of fact for the jury.” Graham v. Long Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000). As the United States Court of Appeals for the Second Circuit has noted, a court “can properly grant summary judgment [on a discrimination claim] where it is clear that no reasonable jury could find the similarly situated prong met.” (Emphasis added.) Harlen Associates v. Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001). It follows that our anti-discrimination statutes, which are modeled on federal law; Lyon v. Jones, 291 Conn. 384, 407, 968 A.2d 416 (2009); permit the court, as a matter of law, to limit the class of individuals with whom the plaintiff may be compared to draw an inference of unlawful discrimination.

We agree with the court that the plaintiffs categorical identification of surgical residents in other years of residency whom the plaintiff characterized as comparable did not make it improper for the court to decide which residents were, in fact, sufficiently similar in their employment status to provide a basis for a discrimination claim. The plaintiff failed to make a threshold showing to the contrary.

B

The plaintiff argues that the court’s ruling was improper even as an evidentiary matter because all surgical residents were, in fact, similarly situated in all material respects, and that is all the law required her to show. Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997). “We review evidentiary claims under the abuse of discretion standard. Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Coccomo, 115 Conn. App. 384, 397, 972 A.2d 757, cert. granted on other grounds, 293 Conn 909, 978 A.2d 1111 (2009). We must decide, therefore, whether, under the circumstances of the present case, the court abused its discretion in determining that the evidence proffered by the plaintiff did not relate to residents who were sufficiently “similarly situated” in all material respects to be probative of her claim of discrimination.

Graham holds that an employee offered for comparison will be deemed to be similarly situated in all material respects if “(1) . . . the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) . . . the conduct for which the employer imposed discipline was of comparable seriousness.” Graham v. Long Island Rail Road, supra, 230 F.3d 40. In the present case, in addition to the lack of evidence that residents of other years were subject to the same workplace standards, the plaintiff failed to introduce evidence that any other resident was alleged to have engaged in conduct as serious as abrogating patient care and responsibilities or had been criticized for being untrustworthy, dishonest or deceitful. On this record, we are persuaded that the court did not abuse its discretion in excluding the evidence offered by the plaintiff concerning residents in different years, given the absence of any evidence satisfying either prong of the Graham test for determining if individuals are similarly situated.

In sum, we conclude that the judgment of the court in favor of the defendant must be affirmed. The plaintiffs failure to present evidence to the jury about the defendant’s destruction of a computer hard drive that allegedly contained evidence unfavorable to the defendant defeats her claim that she was entitled to an adverse inference charge. The plaintiffs failure to present evidence that her position as a fourth year resident was sufficiently similar to that of residents in other classes supports the court’s exclusion of evidence of their employment record.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint also alleged breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel and defamation, but those counts are not before us in this appeal. Although, in an amendment to the complaint filed on May 2,2007, the plaintiff added a count of intentional spoliation of evidence, the merits of that claim have been resolved by the granting of summary judgment in favor of the defendant. The plaintiff has not appealed from that ruling.

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer’s agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s . . . sex . . . .”

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section ... (4) For any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because such person opposed any discriminatory employment practice . . . .”

       The plaintiff testified that although the date appearing next to her signature was April 1, 2003, she had actually signed the document much later, on or about May 23, 2003, and had backdated her signature at the request of the defendant’s agent, Joan A. Reeser.

       David Gitkos, the plaintiffs expert witness, defined metadata as “data about data, but to put it in lay terms, it’s basically information contained, in this case, specifically within a . . . document such as the created date of the document, the last author, the last person who saved it, the last time it was printed, total editing time, word count, line count. That’s all in the document itself, but it’s not on the printed screen.”

       The plaintiff points out that when she referred in her testimony to “destruction of evidence,” the court ruled that she would not be allowed to make such references. The plaintiff was asked on cross-examination whether she thought “a competent surgeon must act with high ethical standards.” She responded, in part, by stating: “I would hope that we operate in the highest ethical manner and not destroy evidence.” After a subsequent recess, the defendant’s counsel asked the court to instruct the plaintiff not to refer to destruction of evidence in her testimony. The court, agreed, and the plaintiff herself responded: “I read the order. Your order specifically said that there should be no reference to a preservation order not that we can’t, talk about the fact that the computer got destroyed.” (Emphasis added.) The court, clarifying its ruling, stated: “I don’t know that was an answer to a question that was posed. If the issue tends to come up at some point, that’s a different issue. But that wasn’t even ... a response to the question.” (Emphasis added.) The plaintiff disagreed that she had been unresponsive, but the court concluded that “[i]t [was] a gratuitous comment.”

       Indeed, at oral argument before this court, the plaintiff initially acknowledged that she was not precluded from offering testimony concerning the destruction of the hard drive, though she renewed her argument on rebuttal that 1 he ambiguous ruling at trial had effectively precluded her from doing so.

       The plaintiffs effort to fill this gap at oral argument in this court is unpersuasive. Like contentions first presented in a reply brief; State v. Johnson, 289 Conn. 437, 462 n.27, 958 A.2d 713 (2008); such arguments come too late. Further, she has provided no support for the proposition that the defendant’s exclusive control over its computer shifted to the defendant the burden for explaining its nonproduction at trial.

       Specifically, the plaintiff offered the American Board of Surgery In Training Examination scores of the other residents. Although the plaintiffs appellate brief also refers to narrative evaluations of the other residents that were the subject of a motion in limine filed by the defendant on which the court deferred ruling, the plaintiff did not attempt to offer those evaluations at trial.


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    TONY GENUA v. ANN MARIE LOGAN ET AL.
    (AC 30122)
    Gruendel, Harper and Pellegrino, Js.

      Argued September 17
    officially released December 1, 2009

      Christine K. Blethen, with whom, on the brief, was David M. Sheridan, for the appellants (defendants).

      Matthew T. Wax-Krell, with whom, on the brief, was Mark A. Rosenblum, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendants, the town of Somers and its town clerk, Ann Marie Logan, appeal from the trial court’s judgment in favor of the plaintiff, Tony Genua, finding that the defendants were negligent by improperly indexing in the town’s land records an affidavit filed by the plaintiff protecting his right of first refusal to purchase land. On appeal, the defendants argue that the right of first refusal was terminated pursuant to the plain language of the plaintiffs partnership agreement (agreement), thereby rendering harmless the defendants’ improper indexing of the plaintiffs affidavit. We agree with the defendants and reverse the judgment of the trial court.

Following a hearing, the court issued a memorandum of decision finding the following facts. On July 29,1994, the plaintiff entered into the agreement with Sharon Fales, Paul L. Filippini and Eileen Filippini to purchase roughly seventy acres of property in Somers. The parties agreed to act as partners, with half of the purchase price paid by the plaintiff and Faies, and the other half paid by the Filippinis. The agreement contained a right of first refusal, providing that if any party wanted to transfer his or her share of the property, the remaining parties would have a right of first refusal to purchase that portion of the property. The property remained undisturbed until September 27, 2002, when Faies decided to withdraw from the partnership and to sell her 25 percent interest to the plaintiff. After the sale, the plaintiff owned half of the property, while the Filippinis owned the other half. Each paid half of the expenses. On March 28, 2005, the plaintiff and the Filippinis had the land surveyed to facilitate dividing the property. The parties consulted with their attorneys, who prepared quitclaim deeds to divide the property. Throughout this negotiation process, no party discussed the viability of the partnership agreement or the right of first refusal provision contained therein.

In December, 2005, the plaintiff consulted an attorney to make certain that his right of first refusal was still viable. The plaintiffs attorney drafted an affidavit to be filed with the land records of the Filippinis’ property, and the agreement was attached to the affidavit. The affidavit stated on top, in bold type, that the parcel’s owners of record were the Filippinis. On December 8, 2005, the plaintiff took this document to Logan, who subsequently recorded the affidavit in the Somers land records but mistakenly indexed the document such that the plaintiff, rather than the Filippinis, was listed as the grantor of the land.

On December 27, 2005, the Filippinis sold their thirty-five acre parcel to Joanne F. Ladd, whose title search failed to put her on notice of the plaintiffs claimed right of first refusal. In February, 2006, the plaintiff learned from a newspaper publication that the Filippinis had conveyed their thirty-five acre lot to Ladd. He subsequently filed suit against Logan and the town of Somers.

On June 25, 2008, the court issued its memorandum of decision in favor of the plaintiff, finding that the partnership did not terminate when Fales transferred her property to the plaintiff and that the defendants were negligent by improperly indexing the plaintiffs affidavit. This appeal followed.

On appeal, the essential issue that we must resolve is whether the agreement remained in effect when the plaintiff filed his affidavit in the land records. The defendants argue that the partnership was terminated when Fales transferred her interest to the plaintiff, and, thus, even if we were to assume that the defendants misfiled the plaintiffs affidavit, that breach of duty caused no actual harm to the plaintiff. We agree with the defendants. Additional facts will be provided as necessary.

We begin by setting forth our standard of review. The standard of review for the issue of contract interpretation is well established. When, as here, “there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Accordingly, our review is plenary.” (Citation omitted; internal quotation marks omitted.) Trugreen Landcare, LLC v. Elm City Development & Construction Services, LLC, 101 Conn. App. 11, 13-14, 919 A.2d 1077 (2007). The reviewing court must “decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) C. R. Klewin Northeast, LLC v. Fleming, 284 Conn. 250, 258, 932 A.2d 1053 (2007).

“The intent of the parties as expressed in a contract 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 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 .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Citation omitted; internal quotation marks omitted.) Trugreen Landcare, LLC v. Elm City Development & Construction Services, LLC, supra, 101 Conn. App. 14.

The plain language of § 2 of the agreement states that the partnership “shall terminate upon sale of the property or buy-out of one partner by the other.” It is undisputed that the plaintiff bought Fales’ interest in the property. Therefore, in reviewing the viability of the partnership agreement, we must determine whether it was legally and logically correct for the court to determine that the aforementioned sale did not trigger the termination clause in § 2 of the agreement.

The plaintiff argues that the termination clause did not become activated upon the sale between him and Faies, citing the language of § 2, which references the “buy-out of one partner by the other.” The plaintiff argues that the court implicitly found the contract to be ambiguous, and interpreted the contract as a partnership with the Filippinis on one side and Faies and the plaintiff on the other. On the basis of that interpretation, the transfer between Faies and the plaintiff did not activate the termination clause of the agreement in § 2 because the partnership was actually between the two groups rather than the four individual parties.

We conclude that this interpretation is not legally and logically correct and does not find support in the facts that appear in the record. See C. R. Klewin Northeast, LLC v. Fleming, supra, 284 Conn. 258. The plaintiffs interpretation cannot withstand review because the ambiguity it alleges does not emanate from the language of the agreement but from the plaintiffs subjective interpretation of that language. See Southeastern Connecticut Regional Resources Recovery Authority v. Dept. of Public Utility Control, 244 Conn. 280, 292, 709 A.2d 549 (1998).

There is no language in the contract that the phrase “one partner by the other” meant that each of the four parties did not have a distinct 25 percent interest in the property. The agreement begins by stating that this “[agreement [is] made and entered . . . between PAUL L. FILIPPINI, EILEEN FILIPPINI, TONY GENUA and SHARON FALES . . . .” Section one of the agreement then states that “[t]he parties have agreed to be co-partners in the ownership of certain real estate . . . .” Moreover, the court expressly stated in its memorandum of decision that “[i]n 2002, Fales conveyed her 25 percent interest in the property to [the plaintiff]. ” That finding plainly contradicts the assertion that any of the four parties did not have a distinct, 25 percent interest in the property. Last, the agreement is signed by each of the four partners in their individual capacities, rather than in pairs.

To construe this contract as to involve two groups of two partners rather than four distinct partners would be to “torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.” Trugreen Landcare, LLC v. Elm City Development & Construction Services, LLC, supra, 101 Conn. App. 14. A court simply cannot “disregard the words used by the parties or revise, add to, or create a new agreement.” Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973). “A term not expressly included will not be read into a contract unless it arises by necessary implication from the provisions of the instrument.” Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963).

The court did not find ambiguity in the terms of the contract, either explicit or implicit, and, therefore, erroneously looked to the intentions of the parties rather than the plain language of the contract. In fact, at trial, the court stated: “Section one and § 2 are not ambiguous. I can’t — I can’t get away from that.” Because the terms of the agreement are clear and unambiguous, the court was bound to confine its review to the four comers of the agreement. Subsequently, by considering evidence of intent outside the confines of the contract, the court came to a conclusion that was legally and logically incorrect.

In its memorandum of decision, the court explained that after the transfer between the plaintiff and Fales, the plaintiff and the Filippinis continued to “treat the partnership agreement as being in effect . . . .” Although it is true that the parties continued to share equally the burden of expenses, there is nothing in the record to indicate that this was done as a result of the agreement. The plaintiff and the Filippinis each owned a 50 percent share of the property, so it logically follows that each would pay half of the expenses in the absence of any contrary agreement. Further, following the transfer between Fales and the plaintiff, the parties chose not to adhere to numerous other provisions of the agreement. There is no evidence in the record to support the court’s conclusion that the parties continued to treat the agreement as being in effect.

Section two of the agreement clearly and unambiguously states that the agreement “shall terminate upon sale of the property or buy-out of one partner by the other.” The plaintiff bought Fales’ share, and that transfer terminated the agreement. As a result, we find that the court erred by failing to give effect to the plain and definite language of the agreement. There is no contract language to support a finding that the right of first refusal extended beyond the date of termination of the partnership. Because the plaintiffs right of first refusal was terminated along with the agreement, the plaintiff suffered no harm from the defendants’ failure to properly record his right of first refusal in the Somers land records.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendants.

In this opinion the other judges concurred.

       An essential fact at issue within this appeal is whether the agreement recognized four equal partners, or two groups of two partners, each owning a 50 percent interest.

       Section four of the agreement states in relevant part: “The parties to this Agreement agree that within six (6) months of acquisition of the property described in Schedule A attached, the following will occur . . . (e) Should any of the parties to this Agreement desire to sell a portion of the real estate described in Schedule A and B attached hereto, right of first refusal is granted to the remaining parties. . . .”

       The agreement states in § 2: “The partnership shall commence immediately and shall terminate upon sale of the property or buy-out of one partner by the other.”

       The agreement states in § 3 that “[t]he parties are to pay equally all utilities, taxes, special assessments, insurance and repairs and maintenance associated with the ownership of said property.”

       It should also be noted that § 4 (e) of the agreement states that the “right of first refusal is granted to the remaining parties,” not the remaining party. (Emphasis added.)

       See footnote 4.

       In dividing the property, the parties ignored the guidelines set out in §§ 4 and 6 of the agreement. Likewise, the court acknowledged in its memorandum of decision that the plaintiffs right of first refusal pursuant to § 4 was never discussed between the Filippinis, the plaintiff or their attorneys when they met to discuss division of the property.

       According to the court, the right of first refusal did not terminate because “[the plaintiff] believed the right of first refusal remained in effect and no one testified otherwise.” We find this analysis unavailing.