Sitar v. Syferlock Technology Corp. ( 2022 )

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PAUL SITAR ET AL. v. SYFERLOCK
TECHNOLOGY CORPORATION
(AC 44244)
Moll, Suarez and Lavine, Js.
Syllabus
The plaintiffs, two former employees of the defendant, sought to recover
damages from the defendant for, inter alia, breach of their employment
contracts and failure to pay wages pursuant to statute (§ 31-72). The
trial court rendered judgment in favor of the plaintiffs on their respective
claims for breach of written contract and failure to pay wages pursuant
to § 31-72, and in favor of the defendant on the plaintiffs’ respective
claims for breach of oral contract. The court declined to award the
plaintiffs double damages or attorney’s fees as provided by § 31-72,
reasoning that such an award is appropriate only when the trial court
has found that the defendant acted with bad faith, arbitrariness, or
unreasonableness, which the trial court concluded was not demon-
strated in the present case, and the trial court declined to award prejudg-
ment interest on the amounts awarded to the plaintiffs. On appeal, the
plaintiffs claimed that the trial court erred in finding that there was no
bad faith, arbitrariness, or unreasonableness on the part of the defendant
to support an award of double damages and attorney’s fees with respect
to the plaintiffs’ claims for failure to pay wages pursuant to § 31-72, and
that the trial court abused its discretion in not awarding prejudgment
interest pursuant to statute (§ 37-3a (a)). Held that this court declined
to address the merits of the plaintiffs’ claims, the plaintiffs having failed
to provide this court with an adequate record: pursuant to the applicable
rule of practice (§ 61-10 (a)), the plaintiffs, as the appellants in the
present case, bore the burden of providing this court with an adequate
record for review; moreover, although the trial occurred over three days,
the plaintiffs failed to provide this court with any transcripts and, in the
absence of such transcripts, this court could not evaluate the plaintiffs’
arguments under the applicable standards of review without resorting
to speculation; accordingly, the judgment of the trial court was affirmed.
Argued November 29, 2021—officially released March 29, 2022
Procedural History
Action to recover damages for, inter alia, unpaid
wages, and for other relief, brought to the Superior
Court in the judicial district of Ansonia-Milford and
tried to the court, Pierson, J.; judgment in part for the
defendant, from which the plaintiffs appealed to this
court. Affirmed.
Ryan P. Driscoll, for the appellants (plaintiffs).
Colin B. Connor, for the appellee (defendant).
Opinion
MOLL, J. The plaintiffs, Paul Sitar and Joseph Stage,
appeal from the judgment of the trial court, following
a court trial, insofar as the court concluded that they
were not entitled to double damages and attorney’s
fees and declined to award prejudgment interest on the
amounts awarded to them. On appeal, the plaintiffs
claim that the trial court (1) erred in finding that there
was no bad faith, arbitrariness, or unreasonableness on
the part of the defendant, Syferlock Technology Corpo-
ration, to support an award of double damages and
attorney’s fees with respect to the plaintiffs’ claims for
failure to pay wages pursuant to General Statutes § 31-
72,1 and (2) abused its discretion in not awarding pre-
judgment interest pursuant to General Statutes § 37-3a
(a).2 We conclude that the record is inadequate for our
review, and, accordingly, we decline to review the plain-
tiffs’ claims and, thus, affirm the judgment of the
trial court.
The following facts, as found by the trial court in its
memorandum of decision and/or as stipulated by the
parties,3 and procedural history are relevant to our reso-
lution of this appeal. In January, 2005, Sitar left his prior
employment to work full-time for Grid Data Security,
Inc. (GDS), a business entity formed to develop one-
time password generation technology. Sitar worked at
GDS from January, 2005, until late August, 2007. Stage
began working at GDS in May, 2007, as its senior vice
president of corporate development and worked there
until approximately September 1, 2007. In August, 2007,
Robert D. Russo, the president and treasurer of GDS,
as well as an investor therein, called the loans that he
had made to GDS, and, upon accepting GDS’ patents
as settlement of his loans, transferred the patents and
goodwill to the defendant.
On September 1, 2007, Sitar began working as the
defendant’s chief executive officer (CEO) and remained
in that role until September, 2010. In September, 2010,
the defendant hired Christopher Cardell as its new CEO
and changed Sitar’s title to founder and president.
Sitar’s change in title did not alter his daily duties or
the terms of his compensation, and he continued as
founder and president until September, 2011.
The defendant had no ‘‘[human resources] person’’
during Cardell’s employment as CEO, and Cardell per-
formed human resources functions such as managing
employees, maintaining employment agreements, and
assuming responsibility for employee benefits adminis-
tration. When Cardell became CEO, he did not deter-
mine whether the defendant had any signed employ-
ment agreements for its employees, and he did not
determine whether Sitar had an executed employment
agreement with the defendant until the present case was
initiated. From the defendant’s files, Cardell ultimately
produced a copy of Sitar’s employment agreement,
which was signed by Sitar but not by the defendant. The
agreement was titled ‘‘Agreement Regarding Certain
Conditions of Employment’’ dated September 1, 2007
(Sitar contract). The Sitar contract contained the defen-
dant’s offer for the position of ‘‘Chief Executive Officer’’
with terms including an ‘‘[a]nnual base salary of $12,500
per month,’’ specifically, a ‘‘base salary [of] $150,000
per annum or such rate as the Board of Directors shall
designate from time to time . . . which salary shall
be payable in regular installments and as agreed and
referenced in the September 1, 2007 offer letter and
in accordance with the [defendant’s] general payroll
practices and shall be subject to customary withhold-
ing.’’ The Sitar contract provided that it contained the
entire understanding of the parties, it superseded ‘‘any
prior agreements’’ between Sitar and the defendant, any
amendments thereto required the prior written consent
of the defendant and the ‘‘Executive’’ (an undefined
term), and Sitar would serve as CEO ‘‘under the supervi-
sion and direction of the Board of Directors.’’ The defen-
dant provided Sitar with a healthcare plan, reimbursed
him for documented company-related expenses, and
issued to him, for each tax year from 2007 through 2011,
W-2 forms, which reflected the amounts that he earned
as its employee.
Stage entered into a written contract with the defen-
dant dated September 1, 2007 (Stage contract). Both
Stage and the defendant signed the Stage contract, and
it contained many provisions that are similar or identi-
cal to the provisions in the Sitar contract, including the
integration and amendment clauses. The Stage contract
set forth, however, the following term: ‘‘Annual base
salary of $12,500 per month to be paid on the last day
of each month. Paid as follows: September 1, 2007,
forward: $6,250 paid; $6,250 accrued,’’ ‘‘Full monthly
pay upon reaching adequate sales/cash flow or upon
adequate financing (subject to financing terms),’’ and
‘‘Accrual amounts back-paid upon reaching adequate
sales/cash flow or upon adequate financing (subject to
financing terms).’’
Stage left his employment with the defendant in
March, 2011. Sitar resigned from his positions with the
defendant on September 2, 2011.
On July 5, 2016, the plaintiffs commenced this action
asserting that the defendant owed them unpaid wages.
On March 9, 2020, the plaintiffs filed their second
amended complaint (i.e., the operative complaint),
which asserted the following counts: (1) on behalf of
Sitar, breach of written contract (count one), breach
of oral contract (count two), and failure to pay wages
pursuant to § 31-72 (count three); and (2) on behalf of
Stage, breach of written contract (count four), breach
of oral contract (count five), and failure to pay wages
pursuant to § 31-72 (count six).
In count one, Sitar alleged that the defendant owed
him $157,245 in accrued unpaid salary pursuant to the
Sitar contract. In count two, Sitar alleged that Russo
had promised to pay him certain moneys carried over
from GDS, that such promise constituted a verbal con-
tract, and that the defendant was bound thereby and
owed him $280,250 in connection therewith. In count
three, Sitar alleged that the defendant had ‘‘arbitrarily,
unreasonably, and in bad faith’’ failed to pay him the
foregoing wages, thus entitling him to double damages
and attorney’s fees pursuant to § 31-72. In count four,
Stage alleged that the defendant owed him $114,244.60
in accrued unpaid salary pursuant to the Stage contract.
In count five, Stage alleged that Russo had promised
to pay him certain moneys carried over from GDS, that
such promise constituted a verbal contract, and that
the defendant was bound thereby and owed him $43,750
in connection therewith. In count six, Stage alleged that
the defendant had ‘‘arbitrarily, unreasonably, and in
bad faith’’ failed to pay him the foregoing wages, thus
entitling him to double damages and attorney’s fees
pursuant to § 31-72. On March 10, 2020, the defendant
filed an amended answer and special defenses.
The matter was tried to the trial court, Pierson, J.,
on February 25, 26, and 27, 2020. On July 24, 2020, the
court rendered judgment (1) in favor of Sitar on his
claims for breach of written contract (count one) and
failure to pay wages pursuant to § 31-72 (count three),
(2) in favor of Stage on his claims for breach of written
contract (count four) and failure to pay wages pursuant
to § 31-72 (count six), and (3) in favor of the defendant
on the plaintiffs’ respective claims for breach of oral
contract (counts two and five).4
As to Sitar, with respect to count one, the court con-
cluded that Sitar had proven the formation of the Sitar
contract and the defendant’s breach thereof by virtue
of its failure to pay Sitar the amount of $157,245 for
work he performed while in the defendant’s employ.
In this connection, the court expressly rejected the
defendant’s first special defense that no agreement
existed between it and Sitar because the Sitar contract
was not signed by Russo on its behalf. With respect to
count three, the court concluded: ‘‘While the defen-
dant’s breach of contract in failing to pay [Sitar] accrued
wages violated § 31-72, this failure was not arbitrary or
unreasonable and did not constitute bad faith. Although
the defendant did not prevail on its defense of the claim
brought under the Sitar contract, it had good faith rea-
sons to believe that it did not owe Sitar amounts under
that document, including without limitation the fact
that its designated representative did not sign the Sitar
contract. ‘[It] is well established . . . that it is appro-
priate for a plaintiff to recover attorney’s fees, and dou-
ble damages under [§ 31-72], only when the trial court
has found that the defendant acted with bad faith, arbi-
trariness or unreasonableness.’ . . . Ravetto v. Triton
Thalassic Technologies, Inc., 285 Conn. 716, 724, 941
A.2d 309 (2008). Bad faith, unreasonableness, or arbi-
trariness has not been demonstrated here; to the con-
trary, the defendant has shown good faith reasons—
albeit reasons rejected by the court—for failing to pay
Sitar accrued salary. As a result, the court declines
to award Sitar double damages or attorney’s fees as
provided by § 31-72.’’
As to Stage, with respect to count four, the court
concluded that, because ‘‘the record demonstrates that
the defendant had ‘adequate’ sales and cash flow to pay
Stage accrued salary,’’ the defendant breached the Stage
contract (the existence of which was undisputed) by
failing to pay him accrued salary in the amount of
$114,244.60. With respect to count six, the court con-
cluded that, although the defendant’s foregoing breach
of the Stage contract constituted a violation of § 31-72,
‘‘it has not been shown that the defendant acted in bad
faith, unreasonably, or arbitrarily in failing to pay Stage
his accrued salary to date. The defendant demonstrated
good faith reasons for failing to do so, including without
limitation based on a colorable interpretation of the
words ‘adequate [sales]/cash flow,’ as set forth in the
Stage contract. Although the court disagrees with the
defendant’s interpretation of this language, given the
state of its financial affairs and the governing language
of the Stage contract, it was not arbitrary or unreason-
able for the defendant to have failed to pay Stage
accrued salary, nor did that failure constitute an act of
bad faith. As a result, the court also declines to award
Stage double damages or attorney’s fees as provided
by § 31-72.’’
Whereupon, the court awarded Sitar $157,245 on each
of counts one and three and awarded Stage $114,244.60
on each of counts four and six. The court declined to
award prejudgment interest on the amounts awarded.
Thereafter, the plaintiffs filed a motion for reconsidera-
tion and/or reargument, which was denied by the court
on August 17, 2020. This appeal followed.
On appeal, the plaintiffs claim that the trial court (1)
erred in finding that there was no bad faith, arbitrari-
ness, or unreasonableness on the part of the defendant
to support an award of double damages and attorney’s
fees with respect to the plaintiffs’ claims for failure
to pay wages pursuant to § 31-72, and (2) abused its
discretion in not awarding prejudgment interest pursu-
ant to § 37-3a (a). We decline to address the merits of
these claims because the plaintiffs have failed to pro-
vide this court with an adequate record.
To put into its proper context the lack of an adequate
record for review of this appeal, we briefly recite the
standards of review applicable to each of the plaintiffs’
claims. First, to the extent that the plaintiffs claim that
they are entitled to double damages and attorney’s fees
under § 31-72 as a matter of law, our review is plenary.
See Ravetto v. Triton Thalassic Technologies, Inc.,
supra, 285 Conn. 725. Second, to the extent that the
plaintiffs challenge the trial court’s factual findings in
connection with its determination that bad faith, unrea-
sonableness, or arbitrariness on the part of the defen-
dant had not been proven, such findings are subject to
the clearly erroneous standard of review.5 See id., 727.
Finally, ‘‘[t]he decision of whether to grant interest
under § 37-3a is primarily an equitable determination
and a matter lying within the discretion of the trial
court. . . . Under the abuse of discretion standard of
review, [w]e will make every reasonable presumption
in favor of upholding the trial court’s ruling, and only
upset it for a manifest abuse of discretion.’’ (Internal
quotation marks omitted.) Aurora Loan Services, LLC
v. Hirsch, 170 Conn. App. 439, 458, 154 A.3d 1009 (2017).
Practice Book § 61-10 (a) provides: ‘‘It is the responsi-
bility of the appellant to provide an adequate record
for review. The appellant shall determine whether the
entire record is complete, correct and otherwise per-
fected for presentation on appeal.’’ ‘‘The general pur-
pose of [the relevant] rules of practice . . . [requiring
the appellant to provide a sufficient record] is to ensure
that there is a trial court record that is adequate for an
informed appellate review of the various claims pre-
sented by the parties.’’ (Internal quotation marks omit-
ted.) R & P Realty Co. v. Peerless Indemnity Ins. Co.,
193 Conn. App. 374, 379, 219 A.3d 429 (2019).
In the present case, in claiming that the trial court
erred in (1) failing to find bad faith, unreasonableness,
or arbitrariness on the part of the defendant and (2)
declining to award prejudgment interest, the plaintiffs
have presented fact-intensive claims that, as presented,
require us to have a complete and accurate picture of
the evidence presented at trial. The plaintiffs have not
provided this court, however, with any transcripts of
the three day trial. In the absence of such transcripts,
we would have to resort to speculation in order to
evaluate the plaintiffs’ claims under the applicable stan-
dards of review, which we decline to do. See id., 380
(this court declined to review appellate claim where
plaintiffs provided only partial trial transcript); Buehler
v. Buehler, 175 Conn. App. 375, 382, 167 A.3d 1108 (2017)
(this court declined to review appellate claim because
defendant failed to provide complete transcript of rele-
vant hearing); Calo-Turner v. Turner, 83 Conn. App.
53, 56–57, 847 A.2d 1085 (2004) (this court declined
to review appellate claim where defendant failed to
provide complete transcript of trial proceedings).
Accordingly, we decline to review the plaintiffs’ claims.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 31-72 provides in relevant part: ‘‘When any employer
fails to pay an employee wages in accordance with the provisions of sections
31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance
with section 31-76k or where an employee or a labor organization represent-
ing an employee institutes an action to enforce an arbitration award which
requires an employer to make an employee whole or to make payments to an
employee welfare fund, such employee or labor organization shall recover,
in a civil action, (1) twice the full amount of such wages, with costs and
such reasonable attorney’s fees as may be allowed by the court, or (2) if
the employer establishes that the employer had a good faith belief that the
underpayment of wages was in compliance with law, the full amount of
such wages or compensation, with costs and such reasonable attorney’s
fees as may be allowed by the court. Any agreement between an employee
and his or her employer for payment of wages other than as specified in
said sections shall be no defense to such action. . . .’’
2
General Statutes § 37-3a (a) provides in relevant part: ‘‘[I]nterest at the
rate of ten per cent a year, and no more, may be recovered and allowed in
civil actions or arbitration proceedings under chapter 909 . . . as damages
for the detention of money after it becomes payable. . . .’’
3
On the day of trial, the plaintiffs submitted a stipulation of facts.
4
With respect to counts two and five, the court concluded that the plain-
tiffs’ respective claims for breach of oral contract were barred by the parol
evidence rule and that the plaintiffs had failed to prove the existence of a
verbal promise in any event. The plaintiffs do not challenge these conclusions
on appeal.
5
Although the plaintiffs assert that they ‘‘are not challenging the factual
findings of the court [with regard to bad faith, and are instead] contesting
the court’s application of the law to those facts,’’ they explicitly challenge
certain of the trial court’s factual findings regarding bad faith in their princi-
pal appellate brief. By way of example, with regard to Sitar, the plaintiffs
argue that ‘‘[t]he trial court’s premise that there existed no bad faith, arbitrari-
ness or unreasonableness because [the defendant] believed there was no
employment agreement is faulty. The evidence produced at trial confirms
that [the defendant] knew Sitar had an employment agreement and, at a
minimum, treated him as an employee. . . . The trial court could not have
reasonably found that [the defendant’s] defense (i.e., that Sitar had no
employment agreement) was reasonable, in good faith, and not arbitrary.’’
Moreover, with regard to Stage, the plaintiffs contend that the trial court
‘‘somehow found that [the defendant’s] ‘colorable interpretation’ of the
words of Stage’s contract meant there was no arbitrariness, bad faith or
unreasonableness,’’ and that this finding constituted ‘‘error.’’