Hospital Media Network, LLC v. Henderson ( 2019 )

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HOSPITAL MEDIA NETWORK, LLC v. JAMES G.
HENDERSON ET AL.
(AC 40197)
Alvord, Keller and Flynn, Js.
Syllabus
The plaintiff sought to recover damages from the defendant H, its former
employee, for, inter alia, breach of fiduciary duty. H was employed by
the plaintiff as its chief revenue officer until the plaintiff terminated H’s
employment on September 5, 2013. The plaintiff thereafter brought the
present action, claiming, inter alia, that H had a fiduciary relationship
with the plaintiff and that H breached his fiduciary duty by working for
G Co., a private equity investment firm, to raise capital to acquire C
Co., which was involved in the same business sector as the plaintiff,
without the plaintiff’s permission or knowledge. G Co.’s acquisition of
C Co. closed on September 26, 2013, upon which H was paid a $150,000
finder’s fee by either G Co. or C Co., awarded a three year consulting
contract with C Co. at $50,000 annually, and given the opportunity to
purchase restricted stock of C Co. After H was defaulted for failure to
comply with a discovery order, the trial court granted the plaintiff’s
motion for judgment on the default. Following a hearing in damages,
the trial court awarded damages against H in the amount of $454,579.76
on the plaintiff’s claim of breach of fiduciary duty, which included the
entire salary and bonus H received from the plaintiff as a full-time
employee in 2013, the finder’s fee paid to H by G Co. or C Co., the
consulting fees paid to H by C Co. from 2013 to 2016, and the value of
the C Co. stock at the time of H’s purchase. On H’s appeal to this court,
held that the trial court abused its discretion in ordering a wholesale
forfeiture of the salary and bonus paid to H by the plaintiff in 2013, and
requiring H to disgorge in full all profits received from C Co. and G Co.,
as the award of monetary relief was disproportionate to the misconduct
at issue and failed to take into account the equities in the case: although
the remedies of forfeiture of compensation paid by an employer and
disgorgement of amounts received by the employee from third parties
are available when an employer has proven a breach of the fiduciary
duty of loyalty by the employee, the imposition of those remedies is
dependent on the equities of the particular case, and trial court’s findings
here that H provided significant value to the plaintiff by contributing
to the plaintiff’s rapid growth, despite his breach of fiduciary duty, and
that H did not act with a bad motive or reckless indifference, but rather
failed to comprehend or ignored the differences between being an
employee and a consultant, should have weighed in favor of a measured
forfeiture rather than H’s full salary and bonus; moreover, full dis-
gorgement of the benefits conferred on H by C Co. and G Co. was
improper, as H rendered some of the services for which he was compen-
sated by C Co. and G Co. both prior and subsequent to his full-time
employment with the plaintiff, and the commensurate portion of the
compensation received in exchange for those services should not have
been included in the court’s order of disgorgement.
Argued September 18, 2018–officially released January 8, 2019
Procedural History
Action to recover damages for, inter alia, breach of
fiduciary duty, and for other relief, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk,
where the defendants filed a counterclaim; thereafter,
the court, Hon. A. William Mottolese, judge trial referee,
granted the plaintiff’s motion for default against the
defendants and for nonsuit on the defendants’ counter-
claim; subsequently, the court, Hon. A. William Mot-
tolese, judge trial referee, granted the plaintiff’s motion
for judgment on the default and rendered judgment of
nonsuit as to the defendants’ counterclaim; thereafter,
following a hearing in damages, the court, Hon. Taggart
D. Adams, judge trial referee, rendered judgment for
the plaintiff, from which the defendants appealed to
this court. Reversed in part; further proceedings.
James G. Henderson, self-represented, with whom
was Taylor Henderson, self-represented, the appel-
lants (defendants).
Gary S. Klein, with whom was Liam S. Burke, for
the appellee (plaintiff).
Opinion
ALVORD, J. The self-represented defendant, James
G. Henderson, appeals from the judgment of the trial
court, following a hearing in damages upon default as
to liability, awarding the plaintiff, Hospital Media Net-
work, LLC, monetary relief pursuant to the equitable
theories of forfeiture and disgorgement in the amount
of $454,579.76 on its claim of breach of fiduciary duty.1
On appeal, the defendant claims that the court’s award
was improper because the plaintiff failed to prove it
suffered any damages. We conclude that the court
abused its discretion in ordering a wholesale forfeiture
of the defendant’s salary and bonus and requiring the
defendant to disgorge in full all profits received from
third parties, such that the award, in the full amount
requested by the plaintiff, was inequitable. Accordingly,
we reverse in part the judgment of the court as to
the award of damages against James Henderson and
remand the case for a new hearing in damages. We
otherwise affirm the court’s judgment.
The following facts and procedural history are rele-
vant to the resolution of this appeal. In November, 2013,
the plaintiff commenced this action alleging that the
defendant, its former employee, violated the Connecti-
cut Uniform Trade Secrets Act (CUTSA), General Stat-
utes § 35-50 et seq., committed tortious interference
with the plaintiff’s business and contractual relations,
breached the duty of employee loyalty, breached his
fiduciary duty, and usurped corporate opportunities of
the plaintiff. The defendant was defaulted, and the trial
court held a hearing in damages. After the hearing, the
court awarded the plaintiff damages solely on its claim
of breach of fiduciary duty,2 the essential elements of
which were admitted by virtue of the defendant’s
default.
With respect to its breach of fiduciary duty count,
the plaintiff alleged that it employed the defendant as
its chief revenue officer and paid him substantial com-
pensation from January 1 to September 2013. On Sep-
tember 5, 2013, the plaintiff terminated the defendant’s
employment ‘‘for cause for several reasons including,
without limitation [the defendant’s] actively working
for various companies unrelated to [the plaintiff] for
his own benefit and without [the plaintiff’s] permission
or knowledge during regular business hours.’’ Specifi-
cally, it alleged that the defendant worked for or on
behalf of Generation Partners (Generation), a private
equity investment firm, ‘‘to raise capital for other digital
media companies including but not limited to’’ Capti-
vate Network Holdings, Inc. (Captivate), and used the
plaintiff’s computers and infrastructure to conduct busi-
ness for those other digital media companies without
the plaintiff’s permission or knowledge. The plaintiff
claimed that the defendant played golf on a social basis
and otherwise took time off during regular business
hours without the plaintiff’s permission.
The plaintiff further alleged that the parties had a
fiduciary relationship ‘‘by virtue of the trust and confi-
dence’’ the plaintiff placed in the defendant as its chief
revenue officer, a senior executive position. Among the
duties allegedly owed to the plaintiff were the duty of
loyalty, the duty to act in good faith, and the duty to
act in the best interest of the plaintiff. The plaintiff
asserted that the defendant breached these duties in
advancing his own interests to the detriment of the
plaintiff. Lastly, the plaintiff alleged that the defendant’s
breach caused it to sustain damages.3 The plaintiff
sought, inter alia, compensatory and punitive damages.
The defendant answered and filed an amended coun-
terclaim, alleging breach of contract, wrongful termina-
tion, misrepresentation and deceit, and violation of the
Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq. The defendant requested,
inter alia, compensatory and punitive damages.
The parties engaged in discovery disputes, resulting
in an April, 2016 order from the court that the parties
‘‘confer face-to-face in an effort to resolve these discov-
ery disputes, bearing in mind that reasonable good faith
efforts at compromise are essential to every discovery
dispute.’’ On June 27, 2016, after finding the defendant’s
objections to the plaintiff’s discovery requests ‘‘inten-
tionally evasive and intended to obstruct the process,’’
the court ordered full compliance within thirty days.
On July 28, 2016, the plaintiff filed a motion for default
and nonsuit on the basis that the defendant had failed
to comply with the court’s June 27 order. The court
granted the motion, finding that the ‘‘[p]laintiff is clearly
prejudiced by these obstructive tactics and the only
appropriate remedy proportionate to the infraction is
default.’’ On September 26, 2016, the court rendered
judgment for the plaintiff on its affirmative claims and
against the defendant on his counterclaim.
On September 27, 2016, the court held a hearing in
damages. The plaintiff presented the testimony of
Andrew Hertzmark, an employee of Generation;4 Chris-
topher Culver, chief executive officer of the plaintiff;
Taylor Henderson; and James Henderson. At the conclu-
sion of the hearing, the court requested posttrial brief-
ing, which the parties submitted on October 18, 2016.
On February 15, 2017, the court issued a memoran-
dum of decision. In its memorandum, the court
reviewed the evidence presented during the hearing
in damages. From 2011 to 2013, the defendant was a
consultant to the plaintiff, and the plaintiff compen-
sated the defendant by making payments to his con-
sulting company, St. Ives Development Group. On
January 1, 2013, the defendant became a full-time
employee and chief revenue officer of the plaintiff. The
plaintiff paid him a salary of over $12,000 per month,
totaling $121,579.84 in 2013, and also paid him a sales
target bonus of $25,000 in May, 2013. That bonus was
paid to St. Ives Development Group.5 Just weeks after
becoming a full-time employee of the plaintiff, the
defendant communicated with Hertzmark, identifying
the plaintiff as a possible investment target for his fund,
and included the plaintiff’s revenues and possible buy-
out price.
In 2013, Hertzmark was working on a potential trans-
action in which Generation would acquire Captivate
from Gannett Company, Inc. (Gannett).6 Both Captivate
and the plaintiff are involved in the same business sec-
tor. While Captivate sells advertising space on digital
monitors in elevators, the plaintiff sells advertising
space on monitors located in hospitals and medical
offices. Hertzmark testified that the defendant assisted
with the Captivate acquisition, giving a presentation
with Hertzmark to Gannett and helping formulate the
letter of intent memorializing Generation’s proposed
purchase of Captivate.7 In March, 2013, Hertzmark
e-mailed the defendant stating that Generation’s letter
of intent was not shared with the head of Captivate
and, therefore, Gannett was surprised to learn that the
head of Captivate was aware of plans to install the
defendant as the new chief executive officer of Capti-
vate once that business was acquired by Generation.8
In March and April, 2013, the defendant corresponded
with Hertzmark regarding Captivate’s attributes as an
investment and reviewed due diligence information pro-
vided by Captivate from February through April, 2013.
He told Hertzmark on July 6, 2013, that he wanted his
attorney to review his Captivate employment contract
once completed.
The plaintiff terminated the defendant’s employment
on September 5, 2013, and Generation’s acquisition of
Captivate from Gannett closed on September 26, 2013.
Upon the transaction’s closing, the defendant was paid
a finder’s fee of $150,000, awarded a consulting contract
with Captivate for three years at $50,000 annually, and
given the opportunity to purchase restricted stock of
Captivate.9
The court found that ‘‘during the events in this case
[the defendant] either never comprehended or ignored
the different consequences of being a company
employee and being a consultant,’’ referring to the
defendant’s testimony in which he described himself
as a ‘‘consultant employee’’ of the plaintiff. The court
referenced the testimony of Culver, the plaintiff’s chief
executive officer, that the plaintiff’s sales increased
from $1.9 million in 2010 to $6.6 million in 2013. The
court additionally noted Culver’s testimony that the
plaintiff ‘‘held itself out to be the fastest growing com-
pany of its kind during this period’’ and his recognition
that the defendant was part of this ‘‘terrific growth.’’
Crediting Culver’s testimony, the court found that
‘‘there was a sharp increase in the company’s sales’’
while the defendant worked for the plaintiff.
Turning to the plaintiff’s claimed damages, the court
first found that the plaintiff was not entitled to the
defendant’s ‘‘compensation from Captivate’’ on the the-
ory that the defendant usurped a corporate opportunity.
Specifically, the court found that the opportunity the
defendant took was ‘‘employment’’ at Captivate, which
was not an opportunity available to the plaintiff. The
court determined, however, that damages were appro-
priate on the plaintiff’s claim of the breach of fiduciary
duty of loyalty, and measured the damages ‘‘by the
gain to the faithless employee.’’10 The court awarded
damages against the defendant in the total amount of
$454,579.76, including $146,579.84, representing the
defendant’s 2013 salary ($121,579.84) and bonus
($25,000); $150,000, representing the finder’s fee paid
by Generation or Captivate; $150,000, representing the
consulting fees to be paid by Captivate from 2013
through 2016; and $7999.92, representing the value of
the Captivate stock at the time of purchase.11
The court declined to award attorney’s fees under
CUTSA, finding that ‘‘there was minimal or no misap-
propriation of trade secrets in this case, and no justifi-
able basis for awarding fees under that statute.’’ The
court further declined to award attorney’s fees as puni-
tive damages under the common law, on the basis that
the defendant ‘‘has been penalized severely already by
this court’s decision. To add hundreds of thousands of
dollars more, would not only be punitive, it would be
overkill.’’ It additionally found that although the defen-
dant’s actions were ‘‘uninformed, and even stupid,’’ his
conduct did not meet the common-law standard for
awarding attorney’s fees, which, the court observed,
requires that the conduct be ‘‘outrageous, done with a
bad motive, or with reckless indifference.’’ This
appeal followed.
On appeal, the defendant claims that the plaintiff was
‘‘unable to offer proof as to any of [its] damages by a
preponderance of [the] evidence’’ and therefore is ‘‘not
entitled to any award of damages.’’
We begin by addressing the effect of the default. The
defendant was defaulted for failure to comply with the
court’s discovery order, and he concedes that he did
not file a notice of intent to present defenses.12 ‘‘[C]ase
law makes clear . . . that once the defendants had
been defaulted and had failed to file a notice of intent
to present defenses, they, by operation of law, were
deemed to have admitted to all the essential elements
in the claim and would not be allowed to contest liability
at the hearing in damages.’’ (Internal quotation marks
omitted.) Abbott Terrace Health Center, Inc. v. Para-
wich, 120 Conn. App. 78, 85, 990 A.2d 1267 (2010). ‘‘A
default admits the material facts that constitute a cause
of action . . . and entry of default, when appropriately
made, conclusively determines the liability of a defen-
dant. . . . If the allegations of the plaintiff’s complaint
are sufficient on their face to make out a valid claim
for the relief requested, the plaintiff, on the entry of a
default against the defendant, need not offer evidence
to support those allegations.’’ (Internal quotation marks
omitted.) Perez v. Carlevaro, 158 Conn. App. 716, 725,
120 A.3d 1265 (2015); see also Equity One, Inc. v. Shiv-
ers, 310 Conn. 119, 130 n.9, 74 A.3d 1225 (2013). ‘‘Follow-
ing the entry of a default, all that remains is for the
plaintiff to prove the amount of damages to which it is
entitled. . . . At a minimum, the plaintiff in such
instances is entitled to nominal damages.’’ (Internal
quotation marks omitted.) Gaynor v. Hi-Tech Homes,
149 Conn. App. 267, 271, 89 A.3d 373 (2014).
Because of the default entered against the defendant,
he is precluded from challenging his liability to the
plaintiff under the claims pleaded. ‘‘In an action at law,
the rule is that the entry of a default operates as a
confession by the defaulted defendant of the truth of
the material facts alleged in the complaint which are
essential to entitle the plaintiff to some of the relief
prayed. It is not the equivalent of an admission of all
of the facts pleaded. The limit of its effect is to preclude
the defaulted defendant from making any further
defense and to permit the entry of a judgment against
him on the theory that he has admitted such of the
facts alleged in the complaint as are essential to such
a judgment. It does not follow that the plaintiff is enti-
tled to a judgment for the full amount of the relief
claimed. The plaintiff must still prove how much of
the judgment prayed for in the complaint he is entitled
to receive.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 271–72.
Throughout his principal and reply briefing and dur-
ing oral argument before this court, the defendant raises
arguments challenging his liability to the plaintiff. Spe-
cifically, he argues that the plaintiff waived its claims
of breach of the duty of loyalty when hiring the defen-
dant, in that the plaintiff hired him with full knowledge
that he would continue to consult for other companies.
The central contention expressed in the defendant’s
reply brief is that the duty of loyalty never applied to
his relationship with the plaintiff, and that ‘‘[w]here
there was no duty of faithfulness, loyalty, or an agency
or fiduciary relationship implicit in the parties’
agreement, logically there cannot be any breach of it.
Without a breach, damages are not available as a matter
of fact and law.’’ Such arguments are unavailing given
the entry of a default, which operates as an admission
by the defendant of the facts alleged in the complaint
that are essential to the judgment rendered in favor of
the plaintiff on its claim of breach of fiduciary duty.
The defendant is entitled, however, to challenge the
determination of monetary relief awarded by the court.
Our standard of review is as follows. ‘‘As a general
matter, [t]he trial court has broad discretion in
determining whether damages are appropriate. . . . Its
decision will not be disturbed on appeal absent a clear
abuse of discretion. . . . Our review of the amounts
of monetary awards rendered pursuant to various equi-
table doctrines is similarly deferential.’’13 (Citation omit-
ted; internal quotation marks omitted.) Wall Systems,
Inc. v. Pompa, 324 Conn. 718, 729, 154 A.3d 989 (2017).
Our Supreme Court, in Wall Systems, Inc. v. Pompa,
supra, 324 Conn. 732, recently provided guidance on
the equitable remedies available to an employer upon
proving that an employee has breached his fiduciary
duty of loyalty. In Wall Systems, Inc., the defendant
worked for the plaintiff building contractor as head of
its exterior insulation finish systems division. Id., 722.
Without informing the plaintiff, he began working simul-
taneously for a competitor, performing estimating work
for which he earned approximately $90,000 over the
course of five years. Id., 723. The plaintiff also submitted
bids for some of the same jobs that the defendant had
estimated for its competitor. The defendant additionally
accepted kickbacks from a subcontractor in connection
with his work for the plaintiff. Id., 724. The plaintiff
terminated the defendant’s employment and filed an
action alleging that he breached his duty of loyalty to
the plaintiff.
After a bench trial, the court awarded damages to
the plaintiff arising out of the kickback scheme in the
amounts of $14,400, for jobs on which the defendant had
increased the contract price, and $43,200, representing
treble damages as a result of the defendant’s statutory
theft. Id., 726. The trial court declined to require the
defendant to forfeit the compensation he earned from
either the plaintiff or its competitor, citing a lack of
evidence that the plaintiff had been harmed due to the
defendant’s working for the competitor, and finding
that the defendant had worked for the competitor on his
own time. Id., 726–27. On appeal, the plaintiff claimed
as a matter of law that the trial court improperly
declined to order the defendant to forfeit his earnings
from the plaintiff and to require the defendant to dis-
gorge the compensation he received from the competi-
tor. Id., 727–28. Our Supreme Court, recognizing that the
remedies of forfeiture and disgorgement are available
once an employer has proven breach of the fiduciary
duty of loyalty, nevertheless held that the remedies
are not mandatory, but ‘‘are discretionary ones whose
imposition is dependent upon the equities of the case
at hand.’’ Id., 729.
The court in Wall Systems, Inc. provided: ‘‘The law
of restitution and unjust enrichment . . . creates a
basis for an [employee’s] liability to [an employer] when
the [employee] breaches a fiduciary duty, even when
no loss to the employer is shown. 2 Restatement (Third),
[Agency] § 8.01 comment (d) (1), p. 258 [(2006)]. More
specifically, if an employee realizes a material benefit
from a third party in connection with his breach of the
duty of loyalty, the employee is subject to liability to
deliver the benefit, its proceeds, or its value to the
[employer]. Id.; see also id., § 8.02, comment (e), p. 285.
Accordingly, [a]n employee who breaches the fiduciary
duty of loyalty may be required to disgorge any profit or
benefit he received as a result of his disloyal activities,
regardless of whether the employer has suffered a cor-
responding loss. . . .
‘‘Additionally, an employer may seek forfeiture of its
employee’s compensation. Cameco, Inc. v. Gedicke, 157
N.J. 504, 519, 724 A.2d 783 (1999); 2 Restatement
(Third), supra, § 8.01, comment (d) (2), pp. 258–59. For-
feiture of a disloyal employee’s compensation, like dis-
gorgement of material benefits received from third
parties, is an equitable rather than a legal remedy. . . .
It is derived from a principle of contract law: if the
employee breaches the duty of loyalty at the heart of
the employment relationship, he or she may be com-
pelled to forego the compensation earned during the
period of disloyalty. The remedy is substantially rooted
in the notion that compensation during a period in
which the employee is disloyal is, in effect, unearned.
. . . Forfeiture may be the only available remedy when
it is difficult to prove that harm to [the employer]
resulted from the [employee’s] breach or when the
[employee] realizes no profit from the breach. In many
cases, forfeiture enables a remedy to be determined at
a much lower cost to litigants. Forfeiture may also have
a valuable deterrent effect because its availability sig-
nals [employees] that some adverse consequence will
follow a breach of fiduciary duty. 2 Restatement (Third),
supra, § 801, comment (d) (2), p. 259 . . . . Notably,
however, even in cases in which a court orders forfei-
ture of compensation, the forfeiture normally is appor-
tioned, that is, it is limited to the period of time during
which the employee engaged in disloyal activity.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
733–34.
Our Supreme Court made clear that the remedies of
forfeiture of compensation and disgorgement of mate-
rial benefits are discretionary, especially in ‘‘cases
involving breaches of the duty of loyalty due to their
highly fact specific nature.’’ Id., 736. The court further
articulated the following nonexhaustive list of factors
a trial court should consider in determining whether to
invoke forfeiture and disgorgement: ‘‘the employee’s
position, duties and degree of responsibility with the
employer; the level of compensation that the employee
receives from the employer; the frequency, timing and
egregiousness of the employee’s disloyal acts; the wil-
fulness of the disloyal acts; the extent or degree of the
employer’s knowledge of the employee’s disloyal acts;
the effect of the disloyal acts on the value of the employ-
ee’s properly performed services to the employer; the
potential for harm, or actual harm, to the employer’s
business as a result of the disloyal acts; the degree
of planning taken by the employee to undermine the
employer; and the adequacy of other available remedies,
as herein discussed. . . . The several factors embrace
broad considerations which must be weighed together
and not mechanically applied. . . . [T]he judicial task
is to search for a fair and reasonable solution in light
of the relevant considerations . . . and to avoid unjust
enrichment to either party. . . . Additionally, when
imposing the remedy of forfeiture of compensation,
depending on the circumstances, a trial court may in
its discretion apply apportionment principles, rather
than ordering a wholesale forfeiture that may be dispro-
portionate to the misconduct at issue. . . . Conversely,
the court may conclude that all compensation should be
forfeited because the employee’s unusually egregious
or reprehensible conduct pervaded and corrupted the
entire [employment] relationship.’’ (Citations omitted;
internal quotation marks omitted.) Id., 737–38.
The factors articulated in Wall Systems, Inc., are
designed to assist the trial court in reaching ‘‘a fair and
reasonable solution’’ and to ‘‘avoid unjust enrichment
to either party.’’ Id., 738. Specifically, the court in Wall
Systems, Inc. noted that in certain circumstances the
application of apportionment principles may be more
appropriate than ‘‘a wholesale forfeiture that may be
disproportionate to the misconduct at issue.’’ Id. In the
present case, we conclude that the award of monetary
relief was disproportionate to the misconduct at issue
and failed to take into account the equities of the case
at hand.14
We focus our analysis on the court’s award pursuant
to the doctrine of forfeiture. The court ordered a whole-
sale forfeiture of the defendant’s salary for the entire
duration of his full-time employment with the plaintiff,
$121,579.84, and the entire amount of what the plaintiff
itself categorized as the defendant’s achieving his ‘‘sales
target bonus,’’ $25,000, which it paid to the defendant
as an independent contractor through his consulting
company. Specifically, Culver testified during the hear-
ing in damages that the $25,000 bonus paid to the defen-
dant in May, 2013, was compensation for ‘‘hitting a
target of four . . . million in sales for that year.’’
Although the court in the present case did not have
the benefit of the Wall Systems, Inc., factors at the time
it rendered its decision, our Supreme Court noted that
the factors had been ‘‘gleaned from existing jurispru-
dence.’’ Id., 737. The court did, in its memorandum of
decision, make factual findings, fully supported by the
record and corresponding with the Wall Systems, Inc.,
factors, but ultimately failed to give proper weight to
these findings in fashioning its damages award. Specifi-
cally, the trial court expressly recognized the value of
the services the defendant provided the plaintiff, finding
‘‘a sharp increase in the company’s sales’’ while the
defendant worked for the plaintiff, and concluding that
the defendant was part of this ‘‘terrific growth.’’ That
finding corresponds with the Wall Systems, Inc., factor
prompting consideration of ‘‘the effect of the disloyal
acts on the value of the employee’s properly performed
services to the employer.’’ The court’s finding, in
essence a recognition that the defendant was providing
extraordinary value to the plaintiff despite his breach
of fiduciary duty, should have weighed in favor of a
measured forfeiture, not the defendant’s full salary
and bonus.
Indeed, as the court in Wall Systems, Inc., explained,
forfeiture as a remedy ‘‘is substantially rooted in the
notion that compensation during a period in which the
employee is disloyal is, in effect, unearned.’’ Id., 734.
In accord with this principle, courts in other states have
recognized that an employee may be entitled to retain
some portion of his compensation where the breach
is minor or the employee has provided value to the
employer in the form of services properly rendered.
See Cameco, Inc. v. Gedicke, supra, 157 N.J. 521 (‘‘if
the employee’s breach is minor, involves only a minimal
amount of time, or does not harm the employer, the
employee may be entitled to all or substantially all of
his or her compensation’’); Futch v. McAllister Towing
of Georgetown, Inc., 335 S.C. 598, 609, 518 S.E.2d 591(1999) (noting that ‘‘[t]he goal is to avoid the unjust
enrichment of either party by examining factors such as
. . . the value to the employer of the services properly
rendered by the employee’’).
The 2 Restatement (Third), supra, § 8.01 comment
(d) (2) also suggests that forfeiture in full is dispropor-
tionate under certain circumstances. It provides:
‘‘Although forfeiture is generally available as a remedy
for breach of fiduciary duty, cases are divided on how
absolute a measure to apply. Some cases require forfei-
ture of all compensation paid or payable over the period
of disloyalty, while others permit apportionment over
a series of tasks or specified items of work when only
some are tainted by the agent’s disloyal conduct. The
better rule permits the court to consider the specifics
of the agent’s work and the nature of the agent’s breach
of duty and to evaluate whether the agent’s breach of
fiduciary duty tainted all of the agent’s work or was
confined to discrete transactions for which the agent
was entitled to apportioned compensation.’’
In the present case, the court also made a finding
related to the wilfulness of the defendant’s actions,
another of the Wall Systems, Inc., factors. The court
characterized the defendant’s actions as ‘‘uninformed,
and even stupid.’’ By declining to award attorney’s fees
as punitive damages under the common law on this
basis, it is evident that the court rejected any notion
that the defendant’s conduct was ‘‘outrageous, done
with a bad motive, or with reckless indifference.’’ The
court also found that the defendant had ‘‘either never
comprehended or ignored the different consequences
of being a company employee and being a consultant,’’
referring to the defendant’s testimony in which he
described himself as a ‘‘consultant employee’’ of the
plaintiff. Despite recognizing that the defendant poten-
tially ‘‘never comprehended’’ the distinction between
serving as an employee and a consultant and finding
that the defendant’s behavior was ‘‘uninformed’’ rather
than done with a bad motive, the court failed to give
proper weight to these findings when fashioning its
award.
We acknowledge that a trial court ‘‘may conclude
that all compensation should be forfeited because the
employee’s unusually egregious or reprehensible con-
duct pervaded and corrupted the entire [employment]
relationship.’’ (Internal quotation marks omitted.) Wall
Systems, Inc. v. Pompa, supra, 324 Conn. 738. The court
in Wall Systems, Inc., recognized that ‘‘if the compensa-
tion received by a disloyal employee is not apportioned
to particular time periods or items of work, and his or
her breach of the duty of loyalty is wilful and deliberate,
forfeiture of his or her entire compensation may result.’’
(Emphasis altered.) Id., 734 n.11. In the present case,
however, the trial court’s express factual findings
reflect an uninformed employee who continued to pro-
vide significant value to his employer despite his breach
of fiduciary duty. These findings, clearly not in the
nature of corrupt or reprehensible behavior, should
have weighed in favor of an award of something less
than full forfeiture.
We further note briefly that forfeiture was not the
sole remedy available to the court, as the court had
before it evidence of the benefit the defendant received
from third parties Generation and Captivate. Cf. id., 734
(‘‘[f]orfeiture may be the only available remedy when
. . . the [employee] realizes no profit from the
breach’’). The court found those benefits, including the
finder’s fee, value of the stock purchased, and the three
year consulting agreement, to amount to a total of
$307,992.92, and ordered disgorgement in full. That
amount, however, appears to reflect compensation that
the defendant had earned for consulting that he per-
formed both prior to and subsequent to his nine month
period of full-time employment with the plaintiff.15
To the extent the defendant rendered some of the
services for which he was compensated by third parties
both prior and subsequent to his full-time employment
with the plaintiff, some commensurate portion of the
compensation received in exchange for those services
cannot be said to have been gained by the defendant’s
breach and should not have been included in the court’s
order of disgorgement. See id., 733 (‘‘[a]n employee who
breaches the fiduciary duty of loyalty may be required
to disgorge any profit or benefit he received as a result
of his disloyal activities’’ [emphasis added; internal
quotation marks omitted]); New Hartford v. Connecti-
cut Resources Recovery Authority, 291 Conn. 433, 460,
970 A.2d 592 (2009) (explaining that restitutionary rem-
edies are ‘‘not aimed at compensating the plaintiff, but
at forcing the defendant to disgorge benefits that it
would be unjust for him to keep’’ [internal quotation
marks omitted]); XL Specialty Ins. Co. v. Carvill
America, Inc., Superior Court, judicial district of Mid-
dlesex, Complex Litigation Docket, Docket No. X04-
CV-XX-XXXXXXX-S (May 31, 2007) (43 Conn. L. Rptr. 536)
(‘‘[t]he principal is entitled to any loss resulting from
or caused by the breach, and the agent may as well
be required to forfeit any profit gained by the breach’’
[emphasis in original]).
‘‘[C]ourts exercising their equitable powers are
charged with formulating fair and practical remedies
appropriate to the specific dispute. . . . In doing
equity, [a] court has the power to adapt equitable reme-
dies to the particular circumstances of each particular
case. . . . [E]quitable discretion is not governed by
fixed principles and definite rules . . . . Rather,
implicit therein is conscientious judgment directed by
law and reason and looking to a just result.’’ (Citations
omitted; internal quotation marks omitted.) Wall Sys-
tems, Inc. v. Pompa, supra, 324 Conn. 736. In fashioning
its damage award, the court failed to formulate a remedy
appropriate to the particular circumstances of this case,
in light of its own factual findings which weighed in
favor of a measured award. Ultimately, the award of
wholesale forfeiture and disgorgement in full failed to
take into account the equities of the case at hand and
did not achieve a just result.
The judgment is reversed only as to the award of
damages against James G. Henderson, and the case is
remanded for a new hearing in damages. The judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
The court additionally awarded the plaintiff $2000 in damages against
Taylor Henderson, who was also named as a defendant in this action, and
$21,922.50 in attorney’s fees against James Henderson and Taylor Henderson
jointly and severally. Although James and Taylor Henderson jointly filed
briefing to this court, neither James nor Taylor challenges the judgment
against Taylor or the award of attorney’s fees. Because the appeal challenges
only the judgment against James Henderson, we accordingly refer to James
Henderson as the defendant.
2
Although the plaintiff alleged breach of the duty of employee loyalty
separate from its claim of breach of fiduciary duty, it specified in its breach
of fiduciary duty count that one such fiduciary duty breached was the duty
of loyalty. In its memorandum of decision, the court awarded damages for
‘‘breach of fiduciary duty owed to the corporation’’ and cited case law and
secondary sources addressing the fiduciary duty of loyalty. Our Supreme
Court likewise has treated the duty of loyalty as a fiduciary duty in the
employment context. See Wall Systems, Inc. v. Pompa, 324 Conn. 718, 733,
154 A.3d 989 (2017).
3
Although not necessary to resolving the present appeal from the judgment
awarding damages on the plaintiff’s breach of fiduciary duty claim, the
essential elements of the plaintiff’s remaining claims were also admitted by
virtue of the defendant’s default. Although the court declined to award the
plaintiff damages on its remaining claims, the plaintiff has not cross appealed
from the court’s refusal to award damages on the claims alleging a violation
of CUTSA, tortious interference with the plaintiff’s business and contractual
relations, breach of the duty of employee loyalty, and usurpation of corpo-
rate opportunities.
4
According to Hertzmark, Generation is a private equity firm that had
been interested in investing in the plaintiff at one point in time but decided
not to do so in 2011.
5
Aside from explaining that it paid the bonus through St. Ives Development
Group at the defendant’s request, the plaintiff’s counsel during oral argument
before this court had no additional explanation for why, after having made
the defendant a full-time employee as of January 1, 2013, it would pay the
bonus to the defendant as an independent contractor through his con-
sulting company.
6
Gannett’s point person for the transaction was Douglas Kuckelman, a
member of Gannett’s corporate development department. The defendant
corresponded via e-mail with Kuckelman in late December, 2012, and
early 2013.
7
Although Hertzmark knew that the defendant had a connection with
the plaintiff, he maintained that he was not aware that the defendant was
employed full-time by the plaintiff in 2013. He further stated that the defen-
dant told him he was a consultant for the plaintiff.
8
Generation considered the defendant as a potential candidate for chief
executive officer of Captivate, and the defendant provided his resume to
Generation on May 19, 2013.
9
Hertzmark did not know whether the $150,000 finder’s fee was paid by
Generation or Captivate.
10
In its posttrial brief, the plaintiff expressly abandoned its claim for
expense reimbursements. Specifically, it no longer sought ‘‘damages for
[James] Henderson’s 2013 reimbursed expenses totaling $17,718.33, or Tay-
lor Henderson’s 2012 and 2013 reimbursed expenses totaling $11,887.90 and
$11,498.10 respectively.’’
11
The court additionally awarded attorney’s fees in the amount of
$21,922.50, representing the time the plaintiff’s counsel spent addressing
the parties’ discovery disputes. The defendant does not challenge this portion
of the award on appeal. See footnote 1 of this opinion.
12
‘‘After a default, a defendant may still contest liability. Practice Book
§§ 17-34, 17-35 and 17-37 delineate a defendant’s right to contest liability in
a hearing in damages after default. Unless the defendant provides the plaintiff
written notice of any defenses, the defendant is foreclosed from contesting
liability. . . . If written notice is furnished to the plaintiff, the defendant
may offer evidence contradicting any allegation of the complaint and may
challenge the right of the plaintiff to maintain the action or prove any matter
of defense. . . . This approximates what the defendant would have been
able to do if he had filed an answer and special defenses.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.) Schwartz v. Milazzo,
84 Conn. App. 175, 178–79, 852 A.2d 847, cert. denied, 271 Conn. 942, 861
A.2d 515 (2004). ‘‘To be timely, notice must be given within the time period
provided in Practice Book § 17-35.’’ Bank of New York v. National Funding,
97 Conn. App. 133, 140, 902 A.2d 1073, cert. denied, 280 Conn. 925, 908 A.2d
1087 (2006), and cert. denied sub nom. Reyad v. Bank of New York, 549
U.S. 1265, 127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007). Section 17-35 (b) provides
that ‘‘notice of defenses must be filed within ten days after notice from the
clerk to the defendant that a default has been entered.’’
13
Although the determination of whether equitable doctrines are applica-
ble in a particular case is a question of law subject to plenary review; see
Walpole Woodworkers, Inc. v. Manning, 307 Conn. 582, 588, 57 A.3d 730(2012); the amount of damages awarded under such doctrines is a question
for the trier of fact. David M. Somers & Associates, P.C. v. Busch, 283 Conn.
396, 407, 927 A.2d 832 (2007).
14
The self-represented defendant advances a number of arguments for
reversal of the court’s judgment that have no basis in the court’s memoran-
dum of decision or in our case law.
He first contends that the court erred in requiring him to repay amounts
earned prior to September 5, 2013, arguing that Connecticut law does not
permit the forfeiture of past compensation upon finding a breach of duty
of loyalty. The defendant maintains that future compensation only may
be subject to forfeiture, citing Dunsmore & Associates, Ltd. v. D’Alessio,
Superior Court, judicial district of New Haven, Docket No. 409906 (January
6, 2000) (26 Conn. L. Rptr. 228), in support of his argument. That superior
court case involved claims of breach of contract and breach of the implied
covenant of good faith and fair dealing, and thus is both distinguishable
and not binding on this court. In contrast, Wall Systems, Inc. v. Pompa,
supra, 324 Conn. 733–34, provides generally that ‘‘[i]f the employee breaches
the duty of loyalty at the heart of the employment relationship, he or she
may be compelled to forego the compensation earned during the period of
disloyalty.’’ (Emphasis added.)
Second, the defendant argues that because the plaintiff prospered during
the period of the defendant’s employment, the plaintiff cannot show it was
damaged by his acts and is not entitled to recover damages for lost profits.
Although the court abused its discretion in fashioning its damage award, it
did not use lost profits as the measure of damages, and, thus, the defendant’s
argument is inapposite.
Third, the defendant argues that ‘‘[t]he proper measure of damages for
breach of covenant not to compete is the nonbreaching party’s losses, not
the breaching party’s gains. . . . Where the judge reversed this standard
in his memo on damages, he applied an incorrect standard, which rendered
an incorrect award of damages’’ to the plaintiff. Because this action contains
no claim of breach of a covenant not to compete, the defendant’s argument
and supporting case law is inapplicable.
Fourth, recognizing that no damages were awarded on the plaintiff’s count
alleging violation of CUTSA, the defendant nevertheless argues, in the event
that the plaintiff ‘‘may choose to raise [the CUTSA claim] in this appeal,’’
that no recovery under CUTSA is proper. Specifically, he argues, citing
Dunsmore & Associates, Ltd. v. D’Alessio, supra, 26 Conn. L. Rptr. 228, that
the plaintiff is not entitled to recover compensatory damages under § 35-
53 because it has failed to prove that it sustained actual loss or that the
defendant was unjustly enriched as a result of his misappropriation. He also
argues that the plaintiff is not entitled to punitive damages under CUTSA.
He further argues that the plaintiff cannot recover damages for tortious
interference, on the basis that it has failed to prove a loss suffered by the
plaintiff and caused by the defendant’s tortious conduct. Because the court
awarded no damages under either the CUTSA or tortious interference counts
and the plaintiff did not file a cross appeal from the trial court’s judgment,
we need not address these arguments.
15
With respect to the finder’s fee, although Hertzmark testified that the
defendant received $150,000 for the work he performed in 2013, he acknowl-
edged that ‘‘during the course of several years, [the defendant] and I have
looked at a number of companies, thirty-five, thirty different companies,
and ultimately settled in 2013 on Captivate. So . . . what you’re hearing
about with Captivate was the tail end of the relationship.’’ (Emphasis added.)
The arrangement between Hertzmark and the defendant began in 2010 or
2011, and the defendant was uncompensated when the two began to look
at potential companies together. It was agreed that if an acquisition closed,
the defendant would be paid a finder’s fee at that time. For the majority of
the term of that relationship, the defendant was not a full-time employee
of the plaintiff. Hertzmark testified that even had he known that the defen-
dant was a full-time employee of the plaintiff in 2013, he still would have
paid him the ‘‘cash compensation regardless of his employment because
[the defendant] had made the introduction many years ago.’’
Moreover, although Hertzmark testified that the three year, $150,000 pro-
spective consulting contract was part of the defendant’s compensation for
working on the Captivate transaction in 2013, he later clarified that the
defendant ‘‘has been given $50,000 per year for his work on the transaction
and since the transaction has closed.’’ (Emphasis added.) He further testified
that ‘‘I would say through the work we did together in 2013, we saw that
he would be a valuable post-transaction consultant, and so we signed him
up to a three year agreement, post closing.’’ Thus, although he was provided
the opportunity to sign the agreement as a consultant on the basis of his
work in 2013, he performed the services specified in the agreement and
earned the $50,000 per year subsequent to the termination of his employment
with the plaintiff.