Norma I. CRUZ v. VISUAL PERCEPTIONS, LLC, et al.
The issue that we must resolve in this certified appeal is whether the trial court properly determined that a letter agreement between the parties plainly and unambiguously constituted a contract for a defined period of time or, instead, the letter agreement reasonably could be interpreted as governing the terms and conditions of the plaintiff's at-will employment.1 The plaintiff, Norma I. Cruz, brought an action against the defendant Visual Perceptions, LLC,2 alleging that she and the defendant had entered into a letter agreement for a fixed term of employment of thirty-six months and that the defendant had violated the agreement by terminating her employment before the term expired, without good cause. After a trial to the court, the trial court concluded that, on its face, the letter agreement explicitly provided that the plaintiff's employment was for a fixed duration and that the defendant had breached the agreement by terminating the plaintiff without good cause. Accordingly, the court rendered judgment for the plaintiff and awarded her compensatory damages. The defendant then appealed to the Appellate Court claiming, inter alia, that the trial court improperly had concluded that the parties had entered into an employment contract for a fixed term. The Appellate Court affirmed the judgment of the trial court. Cruz v. Visual Perceptions, LLC, 136 Conn.App. 330, 342, 46 A.3d 209 (2012). We then granted the defendant's application for certification to appeal to this court on the following issue: “Did the Appellate Court properly affirm the trial court's determination that the plaintiff was a contract employee for a defined period of time and was discharged in violation of that contract?” Cruz v. Visual Perceptions, LLC, 306 Conn. 903, 903–904, 52 A.3d 730 (2012). We conclude that both the Appellate Court and the trial court improperly determined that, on its face, the letter agreement constituted a contract for a definite term. Instead, we conclude that the letter agreement was ambiguous on this point and, therefore, the trial court should have considered extrinsic evidence to determine the intent of the parties. Accordingly, we reverse the judgment of the Appellate Court and conclude that the case must be remanded to the trial court for further factual findings in a new trial.
The Appellate Court's majority opinion sets forth the following relevant facts and procedural history. “The plaintiff was hired as a laboratory manager by the defendant in February, 2006. On February 2, 2006, the plaintiff and [Robert W. Aube, Jr., the defendant's principal] signed a document that included the plaintiff's rate of compensation, commission opportunities, benefits and work schedule. Thereafter, on April 6, 2006, the plaintiff and Aube signed a second document that revised the terms of the plaintiff's employment, providing for a raise in her salary.
“In February, 2007, the plaintiff provided Aube with a handwritten list of updated terms of her employment wherein she requested another raise. On March 1, 2007, the plaintiff and Aube signed a third document, stating ‘[t]his will cover the [thirty-six] month period starting April 1, 2007 and ending March 31, 2010.’3 Aube terminated the plaintiff's employment [with the defendant] on October 16, 2008, and [this] litigation followed.
“On January 6, 2010, the plaintiff filed a revised amended complaint.4 Count one alleged that the March 1, 2007 document constituted an employment contract between the plaintiff and the defendant for a fixed term of thirty-six months, and that her termination breached that contract. Counts two and three sought an accounting and payment of commissions for the term of the alleged employment contract against the defendant and Aube, respectively. The [defendant and Aube] filed an answer denying the existence of an employment contract and claiming, by way of special defenses, rescission, payment, and accord and satisfaction as to all counts of the revised amended complaint. The [defendant and Aube] also claimed that Aube could not be liable personally pursuant to General Statutes § 34–134 as to count three. The defendant asserted a counterclaim against the plaintiff for breach of contract, breach of the covenant of good faith and fair dealing, and statutory theft pursuant to General Statutes § 52–564.
“The matter was tried to the court․ In its memorandum of decision, the court first determined that the March 1, 2007 document constituted a contract of employment for a definite term and was terminable only for good or just cause.” (Footnotes altered.) Cruz v. Visual Perceptions, LLC, supra, 136 Conn.App. at 332–33. Specifically, the trial court stated that “[o]n its face, the March 1, 2007 document contains the terms and conditions that were essential to the plaintiff's employment [by the defendant]. The document contains the plaintiff's job title and description, schedule, salary, conditions for the receipt of a bonus, health insurance and retirement contribution benefits. Most significantly, the document explicitly states the duration of the plaintiff's employment: thirty-six months, from April 1, 2007, to March 31, 2010. Because the March 1, 2007 document is definite and certain as to its terms and requirements, it constitutes a valid and binding term employment contract.”5
“The court then determined that because the [defendant and Aube] did not present evidence to support a finding of good or just cause to terminate the plaintiff's employment, the plaintiff was discharged in violation of the contract [and the court therefore found for the plaintiff on counts one and two of the revised amended complaint].6 The court found that the plaintiff was entitled to damages from the date of her termination through the end date of the term of the contract. On December 6, 2010, the court awarded the plaintiff $60,964.11, representing the plaintiff's lost wages, less unemployment compensation, with the addition of medical expenses incurred due to a loss of health insurance coverage and an underpaid bonus.” (Footnote added.) Cruz v. Visual Perceptions, LLC, supra, 136 Conn.App. at 333. Thereafter, the trial court rendered judgment for the plaintiff on counts one and two of the revised amended complaint.
The defendant then appealed to the Appellate Court. A majority of that court concluded that “the plain language of the contract unambiguously demonstrates that the parties intended to create a contract for a definite duration of thirty-six months. It specifically provides how many personal days would be allocated to the plaintiff for the duration of the contract and provides that any increase in health insurance premium would be absorbed by the defendant ‘for the duration of the contract.” ’ (Emphasis in original; footnote omitted.) Id., at 337. The Appellate Court concluded that, because “the language of the contract is unambiguous, the contract must be given effect according to its terms.” Id., at 337 n. 3. Accordingly, the Appellate Court held that “the [trial] court's finding that the March 1, 2007 document was an employment contract for a definite term is not clearly erroneous.”7 Id., at 337. The Appellate Court therefore affirmed the judgment of the trial court. Id., at 342. This certified appeal followed.
The defendant claims on appeal that the Appellate Court improperly concluded that the language of the March 1, 2007 document (letter agreement), on its face, plainly and unambiguously demonstrates that the parties intended to create a contract for a definite term of thirty-six months.8 The defendant contends that the language of the letter agreement was ambiguous because it reasonably could be interpreted as governing the terms and conditions of the defendant's at-will employment of the plaintiff. Accordingly, it contends, the trial court should have considered extrinsic evidence to determine the parties' intent. It further contends that, although the trial court did not consider it, the extrinsic evidence clearly demonstrates that the parties did not intend to enter into a contract for a definite term of employment. The plaintiff contends that, to the contrary, the Appellate Court properly affirmed the trial court's determination that the letter agreement, on its face, was a contract for a definite term. We conclude that the letter agreement was ambiguous on its face as to whether it created a contract for a definite term or, instead, governed the terms and conditions of the defendant's at-will employment of the plaintiff. We further conclude that the trial court must consider the extrinsic evidence and make factual findings as to the parties' intent.
We begin with our standard of review. The defendant contends that, because the trial court relied exclusively upon the language of the letter agreement to determine the intent of the parties, its interpretation of the contract is subject to plenary review. The plaintiff contends that, to the contrary, because the question of contract interpretation, being a question of the parties' intent, is a question of fact, the Appellate Court properly subjected the trial court's interpretation to review for clear error. We conclude that, because the trial court relied solely on the language of the letter agreement, which it determined to be plain and unambiguous, and because the parties disagree on that issue, the first question that this court must address is not whether the trial court's substantive interpretation of the contract was correct, but the more fundamental question of whether the relevant language was plain and unambiguous. We conclude that that determination is a question of law subject to plenary review.
“When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact․” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008). “[W]here there is definitive contract language, [however] the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000); see also id., quoting 11 S. Williston, Contracts (4th Ed.1999) § 30:6, pp. 77–83 (“[t]he interpretation and construction of a written contract present only questions of law, within the province of the court ․ so long as the contract is unambiguous and the intent of the parties can be determined from the agreement's face” [internal quotation marks omitted] ); Gateway Co. v. DiNoia, 232 Conn. 223, 230, 654 A.2d 342 (1995) (“because the trial court relied solely upon the written agreements in ascertaining the intent of the parties, the legal inferences properly to be drawn from the documents are questions of law, rather than fact”). It is implicit in this rule that the determination as to whether contractual language is plain and unambiguous is itself a question of law subject to plenary review.9 United Illuminating Co. v. Wisvest–Connecticut, LLC, 259 Conn. 665, 669–70, 791 A.2d 546 (2002) (determination as to whether contract is ambiguous is subject to de novo review).10
Accordingly, we must consider de novo whether the language in the letter agreement was plain and unambiguous. “In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning․ A contract is unambiguous when its language is clear and conveys a definite and precise intent․ The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity․ 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.” (Citations omitted; internal quotation marks omitted.) Id., at 670, 791 A.2d 546.
“In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself․ [A]ny ambiguity in a contract must emanate from the language used by the parties․ The contract must be viewed in its entirety, with each provision read in light of the other provisions ․ and every provision must be given effect if it is possible to do so.” (Citations omitted; internal quotation marks omitted.) Id., at 670–71, 791 A.2d 546. “If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” Id., at 671, 791 A.2d 546.
We conclude that the language of the letter agreement at issue in the present case reasonably may be interpreted as evincing either an intent to create a definite term of employment or an intent to set the terms and conditions of an at-will employment contract. First, the sentence providing that “[t]his will cover the [thirty-six] month period starting April 1, 2007, and ending March 31, 2010”—a sentence on which both the trial court and the Appellate Court relied on heavily in support of their interpretation—is, on its face, entirely consistent with either intent. The sentence does not plainly and unambiguously provide that the duration of the plaintiff's employment will be thirty-six months or that she could not be terminated within that period, except for good cause, but reasonably can be interpreted as providing that the terms and conditions set out in the letter would apply during that period if the plaintiff continued to be employed by the defendant.
Similarly, the portion of the letter agreement providing that any increase in health insurance premiums would be absorbed by the defendant “for the duration of the contract” does not plainly and unambiguously indicate what the parties intended the duration of the agreement to be. The contractual language reasonably could be interpreted as contemplating that the agreement would terminate either when the plaintiff voluntarily left employment or was terminated by the defendant, or at the end of the thirty-six month period. The same reasoning applies to the provision governing the paid personal days that the plaintiff would receive in each year during the thirty-six month period. Accordingly, we conclude that the letter agreement was ambiguous.11 Compare Slifkin v. Condec Corp., 13 Conn.App. 538, 548, 538 A.2d 231 (1988) (language in employment contract providing that employee “would be afforded an opportunity to continue in the employ of [the employer] for a sufficient number of years to qualify for 100 [percent] vesting in each of the employer benefit plans” plainly and unambiguously constituted contract of employment for specified period [internal quotation marks omitted] ).12
When contractual language is plain and unambiguous, “to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. at 502, 746 A.2d 1277. Parol evidence is admissible, however, “to explain an ambiguity appearing in the instrument․” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 277, 819 A.2d 773 (2003); see also id. (“[t]he parol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract ․ but forbids only the use of such evidence to vary or contradict the terms of ․ a contract” [internal quotation marks omitted] ).
Because the letter agreement was ambiguous as to whether it was intended to constitute a contract of employment for a definite term or, instead, was intended to set the terms and conditions of an at-will employment contract, the trial court was required to resolve this ambiguity by considering the extrinsic evidence and making factual findings as to the parties' intent. It is elementary that neither this court nor the Appellate Court can find facts in the first instance. Holley v. Commissioner of Correction, 62 Conn.App. 170, 180, 774 A.2d 148 (2001) (“[a]n appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found” [emphasis in original; internal quotation marks omitted] ). Accordingly, we conclude that the Appellate Court improperly affirmed the judgment of the trial court in favor of the plaintiff on the ground that the letter agreement plainly and unambiguously evinced the parties' intent that it would be for a definite term, and the case must be remanded to the trial court so that the court may resolve the ambiguity as to the parties' intent on the basis of the extrinsic evidence.13
Finally, because it is likely to arise on remand, we address the plaintiff's claim that, under the rule of contra proferentum, the letter agreement should be construed against the defendant because it drafted the contract. “After the court has examined all of the other factors that affect the search for the parties' intended meaning ․ and the only remaining question is which of two possible and reasonable meanings should be adopted, the court will often adopt the meaning that is less favorable in its legal effect to the party who chose the words. This technique is known as contra proferentum․ The ․ rule has been described as being applicable only as a last resort, when other techniques of interpretation and construction have not resolved the question of which of two or more possible meanings the court should choose. One court wrote that the rule is a tie breaker when there is no other sound basis for choosing one contract interpretation over another. The rule is not applicable at all if only one reasonable meaning is possible․ [The rule] directs the court to choose between two or more possible reasonable meanings on the basis of their legal operation, i.e., whether they favor the drafter or the other party.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Montoya v. Montoya, 91 Conn.App. 407, 420–21, 881 A.2d 319 (2005), rev'd in part on other grounds, 280 Conn. 605, 909 A.2d 947 (2006).
Thus, the trial court in the present case should invoke the rule of contra proferentum only as a last resort if it is unable to resolve the ambiguity in the letter agreement by considering the extrinsic evidence. It would make absolutely no sense to require the trial court to construe the agreement against the defendant if the extrinsic evidence showed that it was more likely than not that the parties had a contrary intent.14
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court for a new trial.
In this opinion PALMER, ZARELLA, EVELEIGH, ESPINOSA and VERTEFEUILLE, Js., concurred.
Only by resorting to an act of linguistic origami could the written words of our common language be sufficiently contorted to reach the conclusion achieved by the majority today. While the majority accurately observes that a reviewing court applies plenary review to resolve the threshold question of whether a contract is plain and unambiguous, in the present case it has discerned shadows in the express language of the contract1 between the plaintiff, Norma I. Cruz, and the defendant Visual Perceptions, LLC,2 that the clarity of bright light simply does not substantiate. I am compelled, therefore, to dissent.
The document,3 entitled “Norma Cruz Employment Contract,” provides: a specific term—a “[thirty-six] month period”; the dates of commencement and termination of this term—“starting April 1, 2007 and ending March 31, 2010”; the number of paid personal days that the plaintiff “will have” for vacation or sick time for each year during this term—ten days in 2007, twelve days in 2008, fourteen days in 2009, fifteen days in 2010; and the defendant's obligation to cover any increase in the plaintiff's health insurance premium “for the duration of the contract.” The agreement also sets forth every essential term of the plaintiff's employment—title, responsibilities, schedule (hourly by day), compensation (salary and bonuses), and the value of each benefit provided (matching IRA, health and dental insurance). The contract is signed by the plaintiff and Robert W. Aube, Jr., the principal of the defendant. In my view, it is abundantly clear that, with every salient provision spelled out in detail, this document is an employment contract for a definite term of thirty-six months. Cf. Wilkerson v. Carriage Park Development Corp., 130 N.C.App. 475, 477–78, 503 S.E.2d 138 (employment contract specifying compensation at yearly, monthly, weekly, or daily rate is contract for indefinite period unless it also specifies term of service), review denied, 349 N.C. 534,349 N.C. 534, 526 S.E.2d 478 (1998). As such, it could be terminated only for good or just cause. See Slifkin v. Condec Corp., 13 Conn.App. 538, 549, 538 A.2d 231 (1988) (“[a]n employment contract for a definite or determinable term ․ may be terminated by either party only for good or just cause”).
The majority's summary conclusion that a document, denominated by the parties as an “Employment Contract” and that includes a specified term of thirty-six months “starting from April 1, 2007 and ending March 31, 2010,” is somehow “ambiguous as to whether it was intended to constitute a contract of employment for a definite term,” strains the words used by the parties in their contract beyond their natural meaning and is unwarranted. Similarly, the majority can only reach its conclusion that the language “providing that any increase in health insurance premiums would be absorbed by the defendant ‘for the duration of the con tract’ does not plainly and unambiguously indicate what the parties intended the duration of the agreement to be”; (emphasis added); by speculating that the parties could have been referring to some period other than the thirty-six month term specifically provided in the document captioned as their “[c]ontract.” The majority has undertaken exactly the type of tortured interpretation of the contract's language to discern an ambiguity that this court previously has deemed improper. See United Illuminating Co. v. Wisvest–Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002). In achieving that result, the majority has failed to read the contract in its entirety and to give effect to every one of its provisions if at all possible, most particularly the contractual term of three years. See id., at 670–71, 791 A.2d 546.
Indeed, almost as telling as what is included in the contract is what is omitted. There is no language even remotely implying a reservation of the defendant's right to terminate the plaintiff at will, any condition on the rights provided therein, an intention to maintain any preexisting employment arrangements, or an intention to resolve limited issues in dispute on a going forward basis should the plaintiff's employment continue to the defendant's satisfaction. As the drafter of the contract, Aube readily could have included such terms. See Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind.1997) (“[i]f there is an employment contract for a definite term, and the employer has not reserved the right to terminate the employment before the conclusion of the contract, the employer generally may not terminate the employment relationship before the end of the specified term except for cause or by mutual agreement”); Cape v. Greenville County School District, 365 S.C. 316, 319, 618 S.E.2d 881 (2005) (“An employment contract for an indefinite term is presumptively terminable at will, while a contract for a definite term is presumptively terminable only upon just cause. These are mere presumptions, however, which the parties can alter by express contract provisions.”). Although the contract also does not specifically provide that the plaintiff could be terminated only for good cause, there was no need to so provide in light of well settled law, previously cited, recognizing that such a condition is implied in a contract for a definite term. See also Taravella v. Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (“Under Connecticut law, employment is at-will by default, and parties must specifically contract a right to be terminated only for cause․ An exception exists for contracts that create employment for a fixed period.” [Citation omitted.] ).
Therefore, it is unnecessary and improper, in my view, to remand the case to the trial court to allow consideration of extrinsic evidence to ascertain whether the parties intended to create a contract for a specific term such that the plaintiff could not be terminated except for good cause. The defendant should be bound by its own unambiguous manifestation of intent. By concluding to the contrary, the majority finds textual ambiguity where there is none.
I respectfully dissent.