Adler v. Rosenthal

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LAWRENCE H. ADLER v. EDWARD M. ROSENTHAL
(AC 36593)
Keller, Mullins and Schaller, Js.
Argued October 19, 2015—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Harford, Hon. Jerry Wagner, judge trial referee [motion
to dismiss]; Vacchelli, J. [request to amend
complaint; judgment].)
Hugh D. Hughes, for the appellant-appellee
(defendant).
William B. Wynne, with whom, on the brief was
Heidi Zultowsky, for the appellee-appellant (plaintiff).
Opinion
KELLER, J. In this breach of contract action stem-
ming from an agreement to form a law partnership,
the defendant, Attorney Edward M. Rosenthal, appeals
from the judgment of the trial court, following a hearing
in damages, rendered in favor of the plaintiff, Attorney
Lawrence H. Adler, and awarding him damages in the
amount of $42,447.72, plus costs.1 On appeal, the defen-
dant claims that the court (1) improperly denied his
motion to dismiss the plaintiff’s action, and (2) improp-
erly awarded the plaintiff damages for lost profits. The
plaintiff filed a cross appeal, in which he claims that
the court erred by (1) not allowing him to amend his
complaint to include a claim for paralegal time
expended addressing the defendant’s failure to join
their contemplated law partnership, (2) failing to award
him damages for time that he expended addressing
the defendant’s failure to join their contemplated law
partnership, and (3) failing to award him damages for
the cost he incurred by hiring an associate to replace
the defendant. With respect to the defendant’s appeal,
we reverse the court’s judgment in part, with respect
to its award of lost profits, and remand the case to
that court with direction to vacate that portion of its
damages award. We affirm the judgment of the trial
court in all other respects, including with respect to
the plaintiff’s cross appeal.
The following facts, as found by the trial court, and
procedural history inform our review of the present
appeal. In 2008, the plaintiff left his partnership position
at a law firm and began to explore the possibility of
starting his own law firm. In the plaintiff’s efforts to
start a new firm, he met with the defendant for the first
time on July 14, 2008. During this meeting, the plaintiff
proposed to the defendant that they enter into a partner-
ship to start their own law firm. The defendant indicated
that he was interested, but he did not formally agree
to enter into a partnership at that time. In the following
weeks, the plaintiff and the defendant communicated
with each other and met several times to discuss the
new law firm. Additionally, the plaintiff and the defen-
dant looked for potential office space and discussed
other matters with each other related to their own prac-
tices, including expected income, draws, and expenses.
On July 29, 2008, the plaintiff and the defendant met
in Bushnell Park in Hartford and signed a one page
‘‘Prelim[in]ary Partnership Agreement’’ (preliminary
agreement) to enter into a partnership in the business
of practicing law. Pursuant to this preliminary
agreement, the plaintiff and the defendant agreed to
join their practices and to form a law firm called Adler
Rosenthal, LLC, or some similar name. The plaintiff
would hold an 80 percent interest in the firm, and the
defendant would hold a 20 percent interest. Each part-
ner would bring the files of all of his clients to the firm,
and each partner would retain the files of his respective
original clients. The plaintiff’s work included mostly
contingency cases with some hourly work, and the
defendant’s work included mostly contingency cases,
as well as representing nursing homes, which he billed
hourly. In addition to these clients, the defendant would
contribute office furniture and equipment that he
already owned, which the new firm would use. The
defendant would assist the plaintiff with his contin-
gency work.
The preliminary agreement provided that the initial
draws would be paid weekly, with the plaintiff to
receive $250,000 annually and the defendant to receive
$110,000 annually. The profits after costs, expenses,
loan repayments, and initial draws would be divided
in the first year based upon the plaintiff’s 80 percent
ownership interest and the defendant’s 20 percent own-
ership interest. After the first year, profit sharing would
be determined annually on the basis of the ratio of the
originated receipts that each partner brought into the
firm during the prior year, subject to some adjustments.
The preliminary agreement provided that each partner
would use good faith and fair dealing with the other
partner and the firm, and it further provided that each
partner would use his best efforts to bring in new clients
and to work adequate hours.
The preliminary agreement did not provide a start or
end date, and it did not contain a termination provision.
Notwithstanding the absence of these provisions, the
preliminary agreement did provide as follows: ‘‘In the
event [the defendant] separates from the firm for any
reason, each partner will retain their own clients
(assuming the clients agree) and neither partner will
solicit the other’s clients. [The defendant] will be per-
mitted to take the property, furniture, computers, etc
he came to the firm with. Hourly clients will be billed
by and for the firm until the partner taking the file
departs. Contingency fee cases will have a lien placed
on the recovery with the firm to receive the portion of
the fee received based on the ratio of hours the file is
worked on while the matter is at the firm as compared
with the hours worked on the file after departure. The
lat[t]er portion to go to the departing partner. Each
paralegal hour will be equal to 1/2 of each attorney hour
for this computation.’’ The preliminary agreement also
contained a provision stating that each partner prom-
ised to enter into a more detailed written partnership
agreement ‘‘shortly’’ after their partnership com-
menced.
On the same day that the plaintiff and the defendant
signed the preliminary agreement, they both went to
the Office of the Secretary of the State and filed organi-
zational documentation for the firm, named Adler and
Rosenthal, LLC. The defendant and the plaintiff also
agreed that they would begin the partnership on Sep-
tember 1, 2008. In preparation for the start date, the
plaintiff and his wife, who also worked as the plaintiff’s
business manager, began to take steps to establish the
new law firm. Specifically, the plaintiff and his wife,
under the business name of Adler and Rosenthal, LLC,
met with landlords to discuss potential office space,
negotiated with payroll, telephone, and insurance com-
panies, interviewed and negotiated with prospective
staff members, put an advertisement in the yellow
pages, set up e-mail accounts and a computer system,
opened bank accounts, purchased office supplies, and
arranged for a construction crew to construct an office
space in East Hartford.
Two days before the contemplated start date of the
new firm, on August 30, 2008, the plaintiff arranged for
movers to go to the defendant’s office in Avon to pick
up his office equipment and furniture and move it to
the new firm’s office in East Hartford. On this date, the
plaintiff called the defendant at his office several times
to see if he needed assistance with moving his equip-
ment and furniture. The defendant at first did not
answer or respond to the plaintiff’s calls. When he
finally did answer the phone, he told the plaintiff that
he had decided not to go through with the formation
of the law partnership of Adler and Rosenthal, LLC. In
response, the plaintiff told the defendant that he had
breached their preliminary agreement and that he
planned to sue the defendant as a result.
On December 24, 2008, the plaintiff filed an applica-
tion for a prejudgment remedy, which the trial court,
Aurigemma, J., denied on March 10, 2009. The plain-
tiff’s complaint was dated April 17, 2009. On April 23,
2009, the plaintiff served the defendant with a writ of
summons and complaint, which were returned to the
court on April 30, 2009. In the four count complaint,
the plaintiff pleaded causes of action sounding in breach
of contract, detrimental reliance, negligent misrepre-
sentation, and intentional misrepresentation.
The defendant filed a motion to dismiss the plaintiff’s
action on May 18, 2009. In his motion, the defendant
claimed that the plaintiff’s action should be dismissed
because he failed to comply with General Statutes § 52-
278j2 by not serving process and returning it to the court
within thirty days of the court’s denial of the plaintiff’s
prejudgment remedy application. The defendant also
argued that the plaintiff had failed to comply with Gen-
eral Statutes § 52-45a3 in not designating a return date
on the writ of summons and complaint. Subsequent to
the defendant’s filing his motion to dismiss, the plaintiff
twice filed a request for leave to amend his writ of
summons and complaint to include a proper return
date.4 The first request was filed on May 19, 2009, to
which the defendant filed an objection on June 9, 2009.
The second request was filed on June 12, 2009, and
the defendant filed an objection on June 19, 2009. On
September 9, 2009, the trial court, Hon. Jerry Wagner,
judge trial referee, denied the defendant’s motion to
dismiss, noting that § 52-278j did not mandate dismissal
of the action due to the fact that there was no prejudice
to the defendant by the amendment of the return date.5
Between 2010 and 2012, the plaintiff filed several
motions for default against the defendant for his failure
to plead. Ultimately, on December 19, 2012, the court
entered a default judgment against the defendant for
his failure to file an answer to the plaintiff’s complaint,
as ordered by the court at a dormancy calendar hearing.
The plaintiff then claimed the matter for a hearing in
damages, which the court, Vacchelli, J., held over the
course of two days, July 10, 2013, and October 22, 2013.
The court heard testimony from the plaintiff and the
defendant and admitted exhibits into evidence during
this hearing.
On February 7, 2014, the court issued a memorandum
of decision wherein it rendered judgment for the plain-
tiff upon the default of the defendant on all counts of
the complaint and awarded the plaintiff damages in the
amount of $42,447.72, plus costs. The court awarded
the plaintiff $38,786.93 as damages for lost profits and
$3678.79 as reliance damages for costs that the plaintiff
incurred prior to the breach. The latter amount reflected
costs incurred by the plaintiff in preparation for the
start of the partnership, which included costs for
recording with the secretary of the state’s office, print-
ing stationery, reconfiguring computers, and changing
domain names. This appeal followed. On March 6, 2014,
the plaintiff filed a cross appeal. Additional facts will
be set forth as necessary.
I
DEFENDANT’S APPEAL
A
Motion to Dismiss
We first address the defendant’s claim that the court
improperly denied his motion to dismiss the plaintiff’s
action. The following additional facts are relevant to
our resolution of this claim. In the defendant’s May 18,
2009 motion to dismiss, he argued, as he does now
on appeal, that the court should have dismissed the
plaintiff’s civil action because he failed to comply with
§ 52-278j (b) by not serving process and returning it to
the court within thirty days of the court’s denial of the
plaintiff’s prejudgment remedy application and, in the
alternative, because he failed to comply with § 52-45a
by not designating a return date on the writ of summons.
The record reflects that the court, Aurigemma, J.,
denied the plaintiff’s prejudgment remedy application
on March 10, 2009. The plaintiff then served the defen-
dant with a writ of summons and complaint in this civil
action on April 23, 2009, more than thirty days beyond
the court’s denial of the plaintiff’s prejudgment remedy
application. The defendant claims that the plaintiff’s
failure to serve the writ of summons and complaint and
to file a return with the court within thirty days of the
date on which his application for prejudgment remedy
was denied by the court resulted in an effective with-
drawal of his civil action pursuant to § 52-278j (b). After
the defendant had filed his motion to dismiss, the plain-
tiff apparently realized the defects in process due to
the failure to designate a return date and twice
requested leave to amend the writ of summons and
complaint. In the plaintiff’s first request, dated May 19,
2009, he requested that the court permit him to amend
the writ of summons and complaint to include a return
date of June 30, 2009. In his second request, filed June
12, 2009, he requested that the court permit him to
amend his process to include a return date of June 16,
2009, given that this date was inside of the sixty day
window6 from the date of the original summons, April
17, 2009.
The court, Hon. Jerry Wagner, judge trial referee,
ultimately denied the defendant’s motion to dismiss on
September 9, 2009. In its order denying the motion, the
court stated: ‘‘§ 52-278j does not mandate dismissal of
this action. No prejudice to defendant by amended
return date.’’
On appeal, the defendant claims that the court’s
denial of his motion to dismiss was error because the
plaintiff’s civil action was a ‘‘nullity,’’ over which the
court had no subject matter jurisdiction, because he
violated § 52-278j (b) by failing to serve the defendant
with the writ of summons and complaint and to return
it to court within thirty days of the court’s denial of
the plaintiff’s application for a prejudgment remedy.
Further, the defendant argues that the court erred by
denying the defendant’s motion to dismiss because the
plaintiff’s civil action became a ‘‘nullity’’ once he failed
to comply with § 52-45a by not designating a return
date on the writ of summons and complaint that he
served upon the defendant. The defendant also argues
that the court erred because, even after the court
granted the plaintiff’s motion to amend to include a
return date, the new return date fell outside of the sixty
day window following the date of the process, which
violated § 52-48 (b) and rendered the plaintiff’s action
‘‘a nullity.’’ In response, the plaintiff argues that the
record is inadequate for this court to review the issues
raised pertaining to this claim.7 We conclude that the
record is adequate for review, and we reject the defen-
dant’s arguments on this claim.
We begin our discussion by reviewing the distinctions
between personal jurisdiction and subject matter juris-
diction. ‘‘[J]urisdiction of the subject-matter is the
power [of the court] to hear and determine cases of
the general class to which the proceedings in question
belong. . . . A court has subject matter jurisdiction if
it has the authority to adjudicate a particular type of
legal controversy. . . . A defect in process, however,
such as an improperly executed writ, implicates per-
sonal jurisdiction, rather than subject matter jurisdic-
tion. . . . [W]hen a particular method of serving
process is set forth by statute, that method must be
followed. . . . Unless service of process is made as
the statute prescribes, the court to which it is returnable
does not acquire jurisdiction. . . . The jurisdiction that
is found lacking, however, is jurisdiction over the per-
son, not the subject matter.’’ (Citations omitted; internal
quotations marks omitted.) Lostritto v. Community
Action Agency of New Haven, Inc., 269 Conn. 10, 31,
848 A.2d 418 (2004).
1
First, we address the defendant’s argument that the
court’s denial of his motion to dismiss constituted
reversible error in light of the requirements of § 52-278j
(b). The court denied the plaintiff’s application for a
prejudgment remedy on March 10, 2009. The plaintiff
served the defendant with his signed writ of summons
and complaint, dated April 17, 2009, on April 23, 2009,
and it was returned to court on April 30, 2009. The
defendant argues that the service of process had to be
accomplished within thirty days of March 10, 2009, or
the civil action effectively was withdrawn, and any
action filed after the thirty day period must be dismissed
for lack of subject matter jurisdiction. We disagree.
Our Supreme Court implicitly has treated a party’s
alleged noncompliance with § 52-278j as a jurisdictional
issue that can be raised at any time during the pleadings,
thereby resembling a challenge to subject matter juris-
diction. See Baldwin Piano & Organ Co. v. Blake, 186
Conn. 295, 297–98, 441 A.2d 183 (1982); see also Sam-
marco v. Kostowski, Superior Court, judicial district of
Fairfield, Docket No. CV-09-5027402 (August 18, 2010).
‘‘In undertaking this review [of a motion to dismiss
challenging subject matter jurisdiction], we are mindful
of the well established notion that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Internal quotation marks omitted.) Dayner v. Archdio-
cese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192(2011). ‘‘A determination regarding a trial court’s sub-
ject matter jurisdiction is a question of law and, there-
fore, we employ the plenary standard of review and
decide whether the court’s conclusions are legally and
logically correct and supported by the facts in the
record.’’ (Internal quotation marks omitted.) State v.
Williamson, 155 Conn. App. 215, 219, 109 A.3d 924(2015).
A party may seek prejudgment relief, such as an
attachment on property, to secure the anticipated judg-
ment. General Statutes § 52-278a et seq. That party sub-
mits a proposed unsigned copy of the writ of summons
and complaint; General Statutes § 52-278c (a); but the
civil action is not yet initiated. See Bernhard-Thomas
Building Systems, LLC v. Dunican, 286 Conn. 548,
560–61, 944 A.2d 329 (2008). It is not until after the
prejudgment remedy proceeding is completed that the
applicant serves a signed writ, summons and complaint,
and returns them to court to officially commence the
action. See id., 555–56, 559. ‘‘[T]he language of the pre-
judgment remedy statutes, [General Statutes] § 52-278a
et seq., in several instances . . . makes it clear that
proceedings for prejudgment remedy applications and
civil actions are separate and distinct, with a prejudg-
ment remedy application generally preceding the filing
of the civil action. . . . [I]n addition to the differences
regarding the process for initiating these two legal pro-
ceedings, the purpose of filing a civil action is funda-
mentally different from the purpose of obtaining a
prejudgment remedy. A prejudgment remedy applica-
tion is brought as a prelude to the filing of a civil action,
and is meant to determine whether security should be
provided for any judgment ultimately recovered by the
plaintiff if he or she is successful on the merits of the
civil action. A civil action, in contrast, resolves the mer-
its of the parties’ claims, and can be filed irrespective
of whether the plaintiff was successful in his or her
prior pursuit of a prejudgment remedy.’’ Id., 560–61.
Contrary to the defendant’s interpretation, the plain
language of § 52-278j provides for the dismissal or with-
drawal of an application for a prejudgment remedy
unless the plaintiff, within thirty days from the date the
application is granted or denied, serves and returns to
court the writ of summons and complaint in the civil
action for which the prejudgment remedy was allowed
or disallowed. General Statutes § 52-278j (a) and (b).
Thus, the plaintiff was not required to serve the defen-
dant with the writ of summons and complaint for his
civil action and return it to court within thirty days of
the date on which his application for a prejudgment
remedy was denied, and his failure to do so did not
mandate the dismissal of the entire civil action for
lack of subject matter jurisdiction. Rather, the plaintiff’s
failure only required the court to consider his applica-
tion for a prejudgment remedy to be withdrawn.
In Sharp Electronics Corp. v. Solaire Development,
LLC, 156 Conn. App. 17, 27–28, 111 A.3d 533 (2015),
this court held, inter alia, that for purposes of the thirty
day limit prescribed in § 52-278j (a), the plaintiff’s appli-
cation for prejudgment remedy was granted on the date
on which the court issued a final order specifying
attachment as the remedy, rather than on the date on
which the court issued an initial, conditional order lack-
ing a specified remedy. Due to the fact that—as a result
of the plaintiff’s alleged noncompliance with § 52-278j
(a)—the defendant in that case properly sought the
dismissal of the plaintiff’s prejudgment remedy, and not
its entire civil action, this court did not address the
exact issue that confronts us in the present appeal. See
id., 24. Nevertheless, for purposes of our analysis, it is
notable that the court stated the following in Sharp
Electronics Corp.: ‘‘Nothing in the language of § 52-278j
implicates the jurisdiction of the court to continue to
hear a civil matter in which a plaintiff has been granted
a prejudgment remedy but has failed to comply with
§ 52-278j (a). . . . Although failure to comply with § 52-
278j (a) does not implicate the court’s jurisdiction, and
therefore falls outside the scope of Practice Book § 10-
30 and other rules governing motions to dismiss civil
actions, a motion seeking to dismiss a prejudgment
remedy is nevertheless an appropriate vehicle with
which to alert the court of a plaintiff’s failure to comply
with § 52-278j (a). If a court determines that the plaintiff
[has not complied with § 52-278j], the court lacks
authority to do anything but to ‘dismiss’ (in the parlance
of the statute) the prejudgment remedy.’’ Id., 25.
In a similar vein, we observe that Connecticut trial
courts have appropriately discerned the distinction to
be drawn between a prejudgment remedy and a civil
action with respect to the application of § 52-278j. See,
e.g., MacFarlane v. Luongo Construction & Develop-
ment, LLC, Superior Court, judicial district of New
Haven, Docket No. CV-12-6028525-S (January 17, 2014)
(court granted plaintiff’s application for prejudgment
remedy but plaintiff failed to serve defendant timely
and, after court granted defendant’s motion to dismiss
action for failure to comply with § 52-278j (a), court
responded to plaintiff’s motion to reargue by ‘‘issu[ing]
another order ruling that plaintiff correctly noted that
[§] 52-278j requires . . . dismissal of . . . attachment
and not . . . action’’); Constante v. Pecora, Superior
Court, judicial district of Fairfield, Docket No. CV-08-
5017524-S (January 6, 2010) (49 Conn. L. Rptr. 134, 134,
136 and n.3) (parties entered into stipulated prejudg-
ment remedy and court entered order requiring plain-
tiffs to serve defendants immediately and return
proposed complaint but, when plaintiffs failed to take
such action for six months, court granted motion to
dismiss prejudgment remedy for noncompliance with
§ 52-278j (a) but denied motion to dismiss underlying
action for lack of subject matter jurisdiction); Outdoor
Services Landscape Co. v. Custom Lawn & Limb, LLC,
Superior Court, judicial district of Fairfield, Docket No.
PJR-CV-06-5003078-S (March 13, 2007) (43 Conn. L.
Rptr. 19, 20, 22) (court denied defendant’s motion to
dismiss action for noncompliance with § 52-278j (b)
holding that denial of prejudgment remedy application
and plaintiff’s subsequent failure to comply with § 52-
278j (b) did not mandate dismissal of underlying civil
action); Burgess v. Burgess, Superior Court, judicial
district of Waterbury, Docket No. CV-04-4000033-S
(March 28, 2005) (39 Conn. L. Rptr. 30, 31, 32) (plaintiff
granted prejudgment remedy but filed process with
court beyond thirty day deadline and, when defendant
objected to motion for disclosure of assets on ground
that plaintiff failed to comply with § 52-278j (a) court
held: ‘‘Since the thirty-day requirement in which the
plaintiff had to serve and return to the court the writ,
summons, and complaint . . . expired . . . before
the plaintiff filed the mesne process with the court, the
court lost subject matter jurisdiction over the prejudg-
ment remedy. The prejudgment remedy is therefore
dismissed without prejudice. The writ, summons and
complaint are not [a]ffected by this ruling.’’ [Empha-
sis added.]).
On the basis of our review of the statute and the
aforementioned case law, we conclude that the court
did not err when it denied the defendant’s motion to
dismiss on this ground. When the plaintiff failed to serve
the defendant and to return his civil action to court
within thirty days after the denial of his application for
a prejudgment remedy, the only action required of the
court pursuant to § 52-278j (b) was to consider the
application, not the civil action, withdrawn. The plain-
tiff’s civil action was not subject to dismissal under
the statute.
2
We next address the defendant’s second alleged
ground for dismissal: the plaintiff’s failure to include a
return date on the writ of summons and his failure, in
amending the writ of summons and complaint, to
include a return date that was within two months from
the date on which the plaintiff had first served the
defendant.
‘‘[A] defendant’s claims concerning service of the
summons and complaint [or defective process itself]
implicate personal, rather than subject matter, jurisdic-
tion.’’ (Internal quotation marks omitted.) Morgan v.
Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451(2011); see also Pedro v. Miller, 281 Conn. 112, 117, 914
A.2d 524 (2007). Thus, a motion to dismiss that attacks a
defective return date, for example, implicates personal,
rather than subject matter, jurisdiction, particularly
because such a defect is curable. Willamette Manage-
ment Associates, Inc. v. Palczynski, 134 Conn. App.
58, 65–66, 38 A.3d 1212 (2012). The interpretation of
statutory requirements for service of process ‘‘is a ques-
tion of law over which this court exercises plenary
review. . . . [R]eview of the trial court’s ultimate legal
conclusion and resulting [decision to] [deny] [a] motion
to dismiss will be de novo.’’ (Citation omitted; internal
quotation marks omitted.) Morgan v. Hartford Hospi-
tal, supra, 395. Unlike subject matter jurisdiction, per-
sonal jurisdiction may be created through consent or
waiver. ‘‘[Practice Book § 10-32] specifically and unam-
biguously provides that any claim of lack of jurisdiction
over the person as a result of an insufficiency of service
of process is waived unless it is raised by a motion to
dismiss filed within thirty days in the sequence required
by Practice Book § 10-6 . . . .’’ (Emphasis omitted.)
Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797(1999). ‘‘Because a challenge to the personal jurisdic-
tion of the trial court is a question of law, our review
is plenary. . . . Although the court’s conclusions are
subject to plenary review, [q]uestions of fact are subject
to the clearly erroneous standard of review. . . . A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Citation omitted; internal quotation marks omitted.)
Myrtle Mews Assn., Inc. v. Bordes, 125 Conn. App. 12,
15, 6 A.3d 163 (2010).
‘‘The absence of a return date on the writ, whether
the fault of a plaintiff or a court clerk, is unforgivable.
. . . The return date is a necessary component of a
writ by which a civil action is commenced. . . . Both
the time within which process must be served after its
issuance and the time within which the writ must be
filed with the court after service are determined by
reference to the return day.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.)
Raynor v. Hickock Realty Corp., 61 Conn. App. 234,
242, 763 A.2d 54 (2000). Nevertheless, ‘‘[§] 52-72 creates
an avenue to amend defects in the return date. . . .
[O]ur Supreme Court has held that a remedial statute
such as § 52-72 should be construed liberally as not
to preclude jurisdiction merely because of a defective
return date.’’ (Citation omitted.) Olympia Mortgage
Corp. v. Klein, 61 Conn. App. 305, 309, 763 A.2d 1055(2001). ‘‘[Section] 52-72 . . . provide[s] for amendment
of otherwise incurable defects that go to the court’s
jurisdiction. . . . The apparent intent of the legislature
. . . [is] to prevent the loss of jurisdiction merely
because of a defective return date.’’ (Internal quotation
marks omitted.) Id., 308. ‘‘Despite the remedial nature
of § 52-72 and the fact that the statute is to be liberally
construed, our Supreme Court has established bound-
aries to the statute’s reach. . . . A return date may be
amended but it still must comply with the time limita-
tions set forth in § 52-48 (b).’’8 (Citation omitted; inter-
nal quotation marks omitted.) Ribeiro v. Fasano,
Ippolito & Lee, P.C., 157 Conn. App. 617, 621–22, 117
A.3d 965 (2015).
The second ground raised in the defendant’s motion
to dismiss sought dismissal of the plaintiff’s civil action
because of his failure to include a return date on the
writ of summons and his failure, in amending the writ
of summons and complaint, to include a return date
that was within two months from the date on which
the plaintiff first had served the defendant. The plaintiff
immediately sought to cure the defective return date
by filing his first request for leave to amend his writ of
summons and complaint on May 19, 2009, to designate
a return date of June 30, 2009. On June 9, 2009, the
defendant filed an untimely objection to the plaintiff’s
first request to amend. See Practice Book § 10-60 (a)
(3). In his objection, the defendant claimed that the
proposed amendment did not cure the defect in service
because the return date designated in the amendment,
June 30, 2009, was not within sixty days of April 17,
2009, the date on the original, defective writ of summons
and complaint. See Coppola v. Coppola, 243 Conn. 657,
667 n.12, 707 A.2d 281 (1998); Ribeiro v. Fasano, Ippol-
ito & Lee, P.C., supra, 157 Conn. App. 623 n.3.
We decline to decide this issue on its merits because,
procedurally, it was not properly raised in the trial
court. The defendant did not object to the plaintiff’s
first request for leave to amend within fifteen days, as
required by Practice Book §10-60 (a) (3).9 Accordingly,
the complaint as amended was deemed to have been
filed with the consent of the adverse party by operation
of the rule of practice sixteen days after the filing of
the request, on June 4, 2009. See Practice Book § 10-
60 (a) (3). The defendant did not file his objection until
June 9, 2009, and the court never ruled on it, nor was
it required to do so, because of the lateness of the filing
of the objection.
Once the plaintiff’s first amendment took effect, the
only option available to the defendant was to file a
second, amended motion to dismiss to address the
newly amended writ of summons and complaint in
order to assert his claim that the amended return date
still presented a jurisdictional defect.10 He did not do
so. Subsequently, when the defendant later filed a
request to revise the complaint on April 20, 2010, with-
out having filed a subsequent motion to dismiss based
on his claim that the amended return date still posed
a jurisdictional defect, he waived any further right to
pursue dismissal of the action based on insufficiency
of service of process or lack of personal jurisdiction.
See Practice Book § 10-32.11 Accordingly, we decline to
review this waived claim.
B
Lost Profits Award
We next address the defendant’s claim that the trial
court, Vacchelli, J., upon the conclusion of the hearing
in damages, improperly awarded lost profits to the
plaintiff. The defendant’s claim regarding the damages
awarded for lost profits is in three parts. First, the
defendant claims that there was no support in the evi-
dence for the court’s finding that the defendant would
have contributed $250,000 to the firm’s annual revenue.
Second, the defendant claims that there was no basis in
the evidence for the court’s finding that the partnership
between the parties would have lasted for at least six
months. Third, the defendant claims that any award
of lost profits was improper because the preliminary
agreement, which governed the rights of the parties if
the defendant separated from the firm, did not provide
for such an award under the present circumstances, in
which the defendant did not join the firm.
Our resolution of the first claim is dispositive with
respect to the issue of lost profits. Because we conclude
that the plaintiff failed in his burden of proving what,
if any, revenue the defendant would have contributed
to the new firm, we conclude that any award of lost
profits was improper. Accordingly, we shall not address
the second and third claims raised with respect to the
award of lost profits because we need not determine
whether the court erroneously concluded, in light of
the preliminary agreement between the parties, that it
could award lost profits or whether the court erred by
basing its award on a six month partnership between
the parties.
The defendant argues that the court’s finding of lost
profits was clearly erroneous because profits for the
firm were not reasonably certain, and, thus, the award
was based on speculation. In opposition, the plaintiff
argues that the court’s finding was proper because the
lost profits were reasonable and foreseeable damages
that consequently arose from the defendant’s breach.
Furthermore, the plaintiff argues that the court properly
awarded lost profits as reliance damages.12 We disagree
with the plaintiff and conclude that the trial court’s
finding that he was entitled to lost profits in the amount
of $38,768.93 is clearly erroneous.
The following additional procedural history and facts
are relevant to our resolution of this claim. At the hear-
ing in damages, the plaintiff affirmatively responded to
a question as to whether he ‘‘lost income as a result of
the failure of [Adler and Rosenthal, LLC] and the breach
of contract.’’ The plaintiff further testified that the
defendant represented that he would bring $250,000
in business to the new law firm, which would have
increased profits accordingly because, under the plain-
tiff’s rationale, all of the defendant’s expenses would
have been eliminated if he had joined Adler and Rosen-
thal, LLC. The plaintiff then testified about his calcula-
tions regarding lost profits arising from the defendant’s
breach by analyzing two time periods: one for the time
period between September 1, 2008, and December 31,
2008, and the other for the 2009 calendar year.
For the time period spanning from September 1, 2008,
to December 31, 2008, the plaintiff testified that based
upon the defendant’s commitment to bring in $250,000
to the firm annually, he would have added an additional
$83,333.33 in firm compensation, thereby increasing the
firm’s net profits before partner pay from $118,241.60
to $201,574.93. On the basis of the initial draws set
forth in the preliminary agreement,13 the plaintiff then
testified that of this $201,574.93 in net profits, $83,333.33
would have gone to the plaintiff and $36,666.66 would
have gone to the defendant, which would have left
$81,574.94 in profits remaining for the four month time
period. The plaintiff then testified that, in accordance
with the 80-20 percentage split in ownership as set forth
in the preliminary agreement, the plaintiff and the
defendant would have then divided this profits figure
such that the plaintiff would have received his 80 per-
cent share, $65,259.95. The plaintiff compared this fig-
ure to the amount of net profits that he actually did
receive during this four month time period, which
roughly amounted to $34,908.27. Specifically, the plain-
tiff submitted that the firm that he actually did form in
the defendant’s absence, Adler Law Group, LLC,
received $118,241.60 in profits during this four month
time period. After subtracting $83,333.33 of compensa-
tion from this figure, the plaintiff asserted that his actual
profits figure for this time period was $34,908.27.14 The
plaintiff then subtracted this figure from the $65,259.95
that he purportedly would have received had the defen-
dant joined the firm, leaving him with lost profits of
$30,352.01.
For the next time period of January to December of
2009, the plaintiff testified that, in accordance with the
defendant’s commitment to bring $250,000 annually in
business to the firm, the firm’s profits would have
increased from $557,488.88 to $807,488.48. The plaintiff
then testified that, pursuant to the initial draw provision
in the preliminary agreement, he would have distributed
$250,000 to himself, $110,000 to the defendant, and the
firm would have been left with net profits of $447,488.48
for the year of 2009. The plaintiff then multiplied this
net profits figure by 80 percent in accordance with the
preliminary agreement’s provision on the ownership
interests, which indicated that he would have received
$357,990.78 in profits for 2009. The plaintiff then sub-
tracted this figure from the amount of profit that he
actually did receive for 2009 in the defendant’s absence,
$307,488.48, to arrive at his claimed lost profits figure
of $50,501.52.
In the memorandum of decision wherein the court
awarded the plaintiff lost profits as damages, it stated
the following: ‘‘With respect to lost profits, the court
accepts the plaintiff’s financial data and calculations,
based on the evidence of record of his actual income
and expenses, in comparison to the expected additional
income had the defendant joined the practice, minus
the defendant’s expected salary and share. Based on
that evidence, the court finds that the absence of the
defendant from the enterprise during the first calendar
year (four months) resulted in a loss of reasonably
expected additional net income to the plaintiff of
$30,352.01. Accepting the plaintiff’s data and calcula-
tions over the next full calendar year, the court finds
the plaintiff’s loss of reasonably expected additional
net income for that year was $50,501.52. The pro rata
amount for two months is $8416.92. Adding these two
subtotals, the court finds that the plaintiff’s loss of rea-
sonably expected additional net income over the
allowed six month period was $38,768.93. Accordingly,
the court awards the plaintiff $38,768.93 as damages
for lost profits.’’
We begin our analysis by setting forth the appropriate
standard of review and applicable principles of law.
‘‘The trial court has broad discretion in determining
damages, and its decision will not be overturned unless
it is clearly erroneous. . . . [W]here the legal conclu-
sions of the court are challenged, we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision; where the factual basis of
the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous.’’ (Citation omitted;
internal quotation marks omitted.) O & G Industries,
Inc. v. All Phase Enterprises, Inc., 112 Conn. App. 511,
528–29, 963 A.2d 676 (2009). ‘‘A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) Gianetti v. Rutkin, 142 Conn. App. 641, 656,
70 A.3d 104 (2013).
‘‘It . . . is well established that the burden of proving
damages is on the party claiming them. . . . When
damages are claimed they are an essential element of
the plaintiff’s proof and must be proved with reasonable
certainty.’’ (Internal quotation marks omitted.) FCM
Group, Inc. v. Miller, 300 Conn. 774, 804, 17 A.3d 40(2011); see Carrano v. Yale-New Haven Hospital, 279
Conn. 622, 646, 904 A.2d 149 (2006); Frillici v. Westport,
264 Conn. 266, 283, 823 A.2d 1172 (2003). ‘‘We . . .
note that there are circumstances in which proof of
damages may be difficult and that such difficulty is, in
itself, an insufficient reason for refusing an award once
the right to damages has been established. . . . Never-
theless, the court must have evidence by which it can
calculate the damages, which is not merely subjective or
speculative . . . but which allows for some objective
ascertainment of the amount. . . . This certainly does
not mean that mathematical exactitude is a precondi-
tion to an award of damages, but we do require that
the evidence, with such certainty as the nature of the
particular case may permit, lay a foundation [that] will
enable the trier to make a fair and reasonable estimate.
. . . Evidence is considered speculative when there is
no documentation or detail in support of it and when the
party relies on subjective opinion.’’ (Citations omitted;
internal quotation marks omitted.) American Diamond
Exchange, Inc. v. Alpert, 302 Conn. 494, 510–11, 28
A.3d 976 (2011). ‘‘A damages theory may be based on
assumptions as long as those assumptions are reason-
able in light of the record evidence. . . . The reason-
ableness of those assumptions is to be determined by
the trier of fact.’’ (Citation omitted; internal quotation
marks omitted.) Landmark Investment Group, LLC v.
Chung Family Realty Partnership, LLC, 137 Conn.
App. 359, 372, 48 A.3d 705, cert. denied, 307 Conn. 916,
54 A.3d 180 (2012).
‘‘[L]ost profits may provide an appropriate measure
of damages for the destruction of an unestablished
enterprise, and . . . a flexible approach is best suited
to ensuring that new businesses are compensated fully
if they suffer damages as a result of a breach of contract,
professional malpractice, or similar injuries.’’ Beverly
Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, 247 Conn. 48, 67–68, 717 A.2d 724 (1998).
In reaching its decision to award the plaintiff lost
profits as damages, the trial court credited the plaintiff’s
testimony regarding his calculations of the losses that
Adler Law Group, LLC, incurred as a result of the defen-
dant’s failure to join the firm. A crucial piece of evidence
upon which the court relied consisted of the defendant’s
alleged representation to the plaintiff during the forma-
tion of the preliminary agreement that he regularly
brought in $250,000 a year to his own law firm, which
the court attributed only to earnings derived from the
defendant’s representation of nursing homes. We con-
clude that the award of lost profits based on this evi-
dence was clearly erroneous, as the evidence does not
support the conclusion that the defendant earned, as
profit, $250,000 a year from representing nursing
homes. This finding apparently was adduced through
the plaintiff’s own testimony as to what the defendant
had told him when they were discussing their contem-
plated law partnership. Specifically, the plaintiff testi-
fied that the defendant had told him that he would bring
$250,000 in revenue to the firm each year. Initially, the
plaintiff testified that the defendant had told him that
this amount of revenue represented billable work. Later,
the plaintiff testified that this amount represented the
annual general revenue that the defendant purportedly
would have brought to Adler and Rosenthal, LLC, had
he joined it. On cross-examination, the plaintiff later
admitted that he could not recall what percentage of
the defendant’s work was based upon contingency fee
arrangements. The plaintiff further admitted that he
knew that some of the defendant’s work was work that
was contingency fee based, yet he did not know what
the defendant’s actual originated receipts were for the
years of 2008 and 2009. The defendant later testified
that only one half of his caseload had been based upon
his nursing home files and the other half had been based
upon personal injury files, and that he had made more
than $250,000 a year in some years and less than
$250,000 a year in other years.
The plaintiff testified concerning the defendant’s
practice, and the defendant also testified concerning
the same, yet this evidence was insufficient to prove
that the $250,000 figure accurately reflected what would
have been the defendant’s contribution, in profit, to the
contemplated new firm. The plaintiff did not subpoena
the defendant’s profit and loss statements or tax docu-
mentation. There was no evidence as to what the defen-
dant actually made or received as revenue or earned
as profit, after subtracting losses or expenses, during
2008 and 2009. Thus, as the plaintiff himself testified,
his lost profits calculations relied solely upon the inde-
terminate $250,000 figure that the defendant had
given him.15
In Beverly Hills Concepts, Inc. v. Schatz & Schatz,
Ribicoff & Kotkin, supra, 247 Conn. 63, 68, 77, our
Supreme Court held that lost profits for a reasonable
time period could be an appropriate measure of dam-
ages for misconduct that causes the failure of an unes-
tablished business enterprise, but it also held that the
plaintiff in that case had failed to meet its burden of
proving lost profits to a reasonable certainty. The plain-
tiff in Beverly Hills Concepts, Inc., was a failed corpora-
tion that had been in the business of selling fitness
equipment and that had sued a law firm for legal mal-
practice after the firm’s errors had caused the Connecti-
cut banking commissioner to issue several cease and
desist orders to the corporation due to its failure to
register properly as a ‘‘business opportunity’’ pursuant
to the Connecticut Business Opportunity Investment
Act, General Statutes (Rev. to 1987) § 36-503 et seq.
Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribi-
coff & Kotkin, supra, 247 Conn. 50–54. In assessing
the plaintiff’s claim for lost profits, our Supreme Court
relied upon the discussion, in the Restatement (Second)
of Torts, pertaining to the destruction of a new business,
in which it was noted that courts, in resolving claims
for lost profits, should analyze numerous factors related
to the likelihood of the business’ success if it had sur-
vived. Id., 65. These factors included general business
conditions and the degree of success of similar enter-
prises. Id. Our Supreme Court further noted that it and
courts in other jurisdictions had examined numerous
other factors in determining whether projected lost
profits were reasonably certain in a particular case,
including evidence of the following: the plaintiff’s prior
experiences in the same business, the ‘‘plaintiff’s experi-
ence in the same enterprise subsequent to the interfer-
ence,’’16 comparisons between the plaintiff’s experience
and that of third parties in the same industry, and the
average experience of participants in the same line of
business. Id., 72–74. Most notably, our Supreme Court
asserted that these factors must be ‘‘reasonably prov-
able’’ and that ‘‘[b]ecause of a justifiable doubt as to the
success of new and untried enterprises, more specific
evidence of their probable profits is required than when
the claim is for harm to an established business.’’ (Inter-
nal quotation marks omitted.) Id., 65.
Our Supreme Court noted that in other cases involv-
ing claims for lost profits successful plaintiffs had elic-
ited expert testimony or had presented reliable
statistical data about the projected profitability of the
failed business enterprise. See id., 74–75; see, e.g., Super
Valu Stores, Inc. v. Peterson, 506 So. 2d 317, 331–32
(Ala. 1987) (upholding lost profits award in breach of
contract action where plaintiff presented statistical
evaluation of future profit in support of lost profits
claim and where defendant had compiled evaluation
itself and deemed it reliable); Chung v. Kaonohi Center
Co., 62 Haw. 594, 606–607, 611, 618 P.2d 283 (1980)
(upholding lost profits award in breach of contract
action where plaintiff presented expert testimony of
real estate and business appraiser that projected failed
fast-food restaurant’s revenues on basis of similar
existing business), overruled on other grounds by Fran-
cis v. Lee Enterprises, Inc., 89 Haw. 234, 239, 971 P.2d
707 (1999); Fera v. Village Plaza, Inc., 396 Mich. 639,
645–48, 242 N.W.2d 372 (1976) (upholding lost profits
award in breach of lease action where plaintiffs offered
testimony of numerous experts in relevant industry
about lost profits). Although the plaintiff in Beverly
Hills Concepts, Inc., also presented expert testimony
about the projected lost profits of the failed fitness
equipment business, our Supreme Court nevertheless
deemed the expert’s testimony insufficient to bring the
evidence out of the realm of speculation, primarily
because the plaintiff’s expert had no experience in the
fitness industry and had based his projections on infor-
mal interviews and articles in the lay press. See Beverly
Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, supra, 247 Conn. 75–76.
In the present case, the plaintiff did not present, to
a degree of reasonable certainty, expert testimony or
statistical evidence regarding lost profits that resulted
from the defendant’s failure to join the law firm. Instead,
the plaintiff only produced his own law firm’s profit
and loss statement for the sixteen month time period
following the defendant’s failure to join the firm. The
plaintiff supplemented this data with his own testimony
that the defendant had given him a confident projection,
orally, that he would bring $250,000 in business to the
law firm.17 Furthermore, the plaintiff testified that he
knew of the defendant’s successful track record as a
plaintiff’s attorney, which thereby justified his confi-
dence in the defendant’s ability to deliver on his projec-
tion had he actually joined the firm.
Despite the facts that the defendant had an estab-
lished law practice and that he continued to practice
law after failing to join the plaintiff’s firm, the plaintiff
failed to submit any of the defendant’s financial state-
ments into evidence in support of his lost profits claim.
Although the plaintiff has expertise in the practice of
law, we conclude that his own testimony about his law
firm’s finances is insufficient to establish, to a degree
of reasonable certainty, the amount of profits his firm
lost as a result of the defendant’s failure to bring his
business to the firm. At the very least, the plaintiff
should have attempted to submit evidence of the defen-
dant’s own profits and losses during the relevant time
period. This necessity is especially heightened in this
case because evidence was presented to the court that
much of the defendant’s work was contingency fee
based, and the amount and timing of profits fluctuated
regularly. We therefore conclude that the trial court’s
finding on lost profits is clearly erroneous.
The proper remedy in the present situation is to
remand the case to the trial court with direction to
vacate the award of lost profits. Although the court
erred in awarding lost profits, the plaintiff is not entitled
to further relief in the form of a new hearing related
to lost profits. As our foregoing analysis demonstrates,
the plaintiff failed in his burden of proving an entitle-
ment to any amount of lost profits resulting from the
defendant’s failure to join the firm. ‘‘It is well established
that in administrative, civil and criminal cases, when
the party charged with the burden of proof fails to
satisfy that burden, it is not entitled to a second ‘bite at
the apple’ on remand.’’ Shelton v. Statewide Grievance
Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
II
PLAINTIFF’S CROSS APPEAL
In his cross appeal, the plaintiff claims that the trial
court erred by not allowing him to amend his com-
plaint18 to include a claim for damages related to parale-
gal fees incurred as a result of the defendant’s failure
to join the firm.19 Next, the plaintiff claims that the court
erred by not awarding him damages to compensate him
for the time that he personally expended addressing the
defendant’s failure to join the firm. Finally, the plaintiff
claims that the court erred by excluding $80,000 from
his damages award, which he alleges was a cost that
he incurred due to his need to hire a new associate to
replace the defendant. We will address each of these
claims in turn.
A
First, we address the plaintiff’s claim that the court
improperly denied his request to amend his complaint.
We disagree.
The following additional facts are relevant to this
claim. On July 10, 2013, the first day of the hearing in
damages, the plaintiff attempted to present evidence
that he had incurred damages resulting from the time
that his paralegals and support staff had expended to
‘‘deal with the demise of Adler [and] Rosenthal and the
startup of Adler Law Group, LLC . . . .’’ The plaintiff
testified that he ‘‘lost monies that [he] could have other-
wise billed or utilized my staff for while they were
rectifying the problems created by this incident.’’ The
defendant objected to the admission of such evidence
on the ground that, although the plaintiff had alleged
in his complaint that he was seeking lost billing time
for himself, he had not alleged that he was seeking lost
billing time for his staff, including paralegals. The court
sustained the objection.
Following the court’s ruling, the plaintiff orally
requested leave to amend his complaint to include a
claim for damages arising from lost billing time for the
plaintiff’s staff. The plaintiff asserted that an interroga-
tory answer afforded the defendant notice of the claim.
The defendant objected to the request, arguing that it
would cause the defendant ‘‘severe prejudice.’’ The
court, referring to the fact that the case had been pend-
ing since December, 2008, stated that it was ‘‘late in
the day to be adding things that weren’t clearly in the
complaint.’’ The court sustained the defendant’s objec-
tion to the plaintiff’s oral request to amend the com-
plaint.
On July 16, 2013, the plaintiff filed a written request
for leave to file an amended complaint encompassing a
claim for lost billing time for staff, including paralegals.
Therein, the plaintiff represented in relevant part that,
at the hearing on July 10, 2013, the court had excluded
evidence regarding the plaintiff’s damages arising from
lost billing time for his staff, including paralegals,
because such matters were not pleaded in his com-
plaint. The plaintiff set forth portions of his affidavit
of debt of June 5, 2013, that pertained to these claims
of damages, and suggested that the defendant had
notice of these claims by virtue of the plaintiff’s much
earlier discovery responses. He represented that the
requested amendments would neither delay the trial
nor prejudice the defendant, and he sought to amend
his complaint ‘‘to conform to the evidence presented
at trial.’’
The defendant filed a timely written objection to the
plaintiff’s request. Primarily, the defendant argued that
the court had already denied the request after the
request was made orally by the defendant during the
hearing on July 10, 2013, and that the present motion
was merely an attempt by the plaintiff to relitigate the
exact same issue. Also, the defendant argued that the
request was ‘‘years late, made in the midst of trial, and
would work a substantial prejudice to the defendant.’’
The defendant argued that until the hearing on July 10,
2013, he lacked notice that the plaintiff sought damages
of such nature and that he did not have an opportunity
to properly defend against and conduct discovery with
respect to such damage claims. The defendant repre-
sented that the plaintiff had not provided ‘‘any kind of
written verification’’ with respect to these claims of
damages in discovery. (Emphasis omitted.) Addition-
ally, he rebuffed the plaintiff’s suggestion that he had
afforded the defendant notice of the claim by means
of an affidavit of debt filed on June 5, 2013, which the
defendant characterized as ‘‘on the eve of trial.’’ By
means of electronic notice, the court sustained the
defendant’s objection to the request to amend.
‘‘A trial court’s ruling on a motion of a party to amend
its complaint will be disturbed only on the showing of
a clear abuse of discretion. . . . Whether to allow an
amendment is a matter left to the sound discretion of
the trial court. [An appellate] court will not disturb a
trial court’s ruling on a proposed amendment unless
there has been a clear abuse of that discretion. . . .
‘‘A trial court may allow, in its discretion, an amend-
ment to pleadings before, during, or after trial to con-
form to the proof. . . . Factors to be considered in
passing on a motion to amend are the length of the
delay, fairness to the opposing parties and the negli-
gence, if any, of the party offering the amendment. . . .
The essential tests are whether the ruling of the court
will work an injustice to either the plaintiff or the defen-
dant and whether the granting of the motion will unduly
delay a trial.’’ (Citations omitted; internal quotation
marks omitted.) Franc v. Bethel Holding Co., 73 Conn.
App. 114, 132, 807 A.2d 519, cert. granted on other
grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal
withdrawn October 21, 2003); see also Practice Book
§ 10-60 (providing that party may amend pleadings or
other parts of record or proceedings).
In the present case, it is not in dispute that the plaintiff
sought to amend his complaint, not prior to or on the
very eve of trial, but during the trial itself. The plaintiff
did not demonstrate that he had put the defendant on
notice of the substance of the claims at issue at a point
in time at which the defendant could have adequately
prepared to defend against them. The requests to amend
the complaint at issue were made more than four years
after the plaintiff had commenced this action. Although
the plaintiff argued that he sought to amend his com-
plaint to conform to the evidence presented at trial, the
record reflects that, following the defendant’s objection
to evidence of lost billing time for the plaintiff’s staff,
the court disallowed such evidence. The court denied
the defendant’s oral request to amend at the hearing in
damages on July 10, 2013; his written motion seeking
leave to amend merely was an attempt to relitigate that
ruling. In light of the evidence considered by the court,
the lateness of the plaintiff’s request made during the
trial, and the likelihood that an amendment would have
caused significant prejudice to the defendant, we con-
clude that the court’s ruling did not reflect an abuse of
its discretion.
B
Next, we address the plaintiff’s claim that the court
erred by not awarding damages to compensate him for
the time that he spent in addressing the defendant’s
failure to join his firm. In opposition, the defendant
argues that the court’s finding in this regard is not
clearly erroneous. We agree with the defendant.
We reiterate that ‘‘[t]he trial court has broad discre-
tion in determining damages. . . . The determination
of damages involves a question of fact that will not be
overturned unless it is clearly erroneous. . . . In a case
tried before a court, the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to be
given specific testimony. . . . On appeal, we will give
the evidence the most favorable reasonable construc-
tion in support of the verdict to which it is entitled.
. . . A finding is clearly erroneous when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citations
omitted; internal quotation marks omitted.) Beverly
Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, supra, 247 Conn. 68–69.
In the present case, the trial court rendered its find-
ings concerning a damages award on the basis of numer-
ous exhibits and two days of testimony. The plaintiff
testified at length about the amount of time that he
allegedly spent working to address the needs of his firm
as a result of the defendant’s failure to join it. The
plaintiff, the court noted, testified that he personally
spent approximately seventy-five hours informing cli-
ents and vendors about the firm change caused by the
defendant’s failure to join as promised and in correcting
erroneous payments to the nonexistent Adler and
Rosenthal, LLC. The court, however, declined to award
the plaintiff compensation for his personal time in the
total amount of $28,125 that he was claiming because
he provided no time sheets or other evidence justifying
an award to that extent. The court therefore ruled that
there was no sufficient factual predicate for the award
requested, and it refused to speculate as to the time
that the plaintiff actually spent on those matters. See
id., 69. The court was in the best position to assess the
credibility of the evidence submitted at trial and to
make findings of fact based upon this assessment. On
the basis of our review of the record, we conclude that
the court’s findings regarding the time that the plaintiff
spent in addressing the defendant’s failure to join the
firm were not clearly erroneous.
C
Lastly, we address the plaintiff’s claim on cross
appeal that the court erred by excluding from its dam-
age award an additional $80,000 cost that the plaintiff
claimed to have incurred as a result of his hiring an
associate attorney at his firm to replace the defendant.
In its memorandum of decision, the court stated that
the $80,000 amount ‘‘was a savings over the defendant’s
expected minimum $110,000 yearly draw.’’ As a result,
the court found in the memorandum of decision that
‘‘[t]he plaintiff experienced no financial loss’’ in that
regard and it accordingly refused to award damages on
that claim.
The clearly erroneous standard of review applies to
this claim, given that it pertains to the court’s determina-
tion of damages. Id., 68. The plaintiff presented testi-
mony and exhibits regarding his hiring of an associate
attorney at his firm after the partnership with the defen-
dant did not occur. In its determination of damages,
the court assessed this evidence, and it determined that
the plaintiff’s hiring of a new associate did not result
in harm to the plaintiff because the new associate’s
salary was less than the salary that would have been
paid to the defendant. Moreover, we observe that there
was no persuasive evidence that the plaintiff’s hiring
of the new associate was done for the primary purpose
of ‘‘replac[ing]’’ the defendant, given that the defendant
never actually joined the firm and accordingly added
nothing to the plaintiff’s caseload, which required the
attention of a new associate regardless of the defen-
dant’s actions. In this regard, the court observed that
one of the reasons why the defendant did not join the
firm was that, apart from his work with his own clients,
he was concerned about the ‘‘many new files he would
be assigned to by the plaintiff.’’ Thus, we conclude that
the court’s decision not to award the plaintiff the cost
of hiring a new associate was not clearly erroneous.
The judgment is reversed only with respect to the
court’s award of $38,786.93 for lost profits, and the case
is remanded to the trial court with direction to vacate
that award; the judgment is affirmed in all other
respects, including as to the plaintiff’s cross appeal.
In this opinion the other judges concurred.
1
We note that in the trial court proceedings, the parties were self-repre-
sented and represented by counsel. On appeal, both parties were represented
by counsel at oral argument.
2
General Statutes § 52-278j provides in relevant part: ‘‘(a) If an application
for a prejudgment remedy is granted but the plaintiff, within thirty days
thereof, does not serve and return to court the writ, summons and complaint
for which the prejudgment remedy was allowed, the court shall dismiss the
prejudgment remedy.
‘‘(b) If an application for a prejudgment remedy is denied and the plaintiff,
within thirty days thereof, does not serve and return to court the writ of
summons and complaint for which the prejudgment remedy was requested
. . . the court shall order the application to be considered as having been
withdrawn. . . .’’
3
General Statutes § 52-45a provides: ‘‘Civil actions shall be commenced
by legal process consisting of a writ of summons or attachment, describing
the parties, the court to which it is returnable, the return day, the date and
place for the filing of an appearance and information required by the Office
of the Chief Court Administrator. The writ shall be accompanied by the
plaintiff’s complaint. The writ may run into any judicial district and shall
be signed by a commissioner of the Superior Court or a judge or clerk of
the court to which it is returnable.’’
4
Practice Book § 10-60 states in relevant part that ‘‘a party may amend
his or her pleadings or other parts of the record or proceedings at any time
. . . [b]y filing a request for leave to file such amendment, with the amend-
ment appended, after service upon each party as provided by Sections 10-
12 through 10-17, and with proof of service endorsed thereon. If no objection
thereto has been filed by any party within fifteen days from the date of the
filing of said request, the amendment shall be deemed to have been filed
by consent of the adverse party.’’
5
Our review of the record reveals that the court never issued any order
regarding the defendant’s objections to either of the plaintiff’s two requests
to amend the return date on the writ of summons and complaint. In his brief,
however, the defendant states that ‘‘[t]he trial court granted an amendment to
the return date pursuant to . . . § 52-72’’ based on the plaintiff’s first request
to amend, but this did not cure the deficiency because the return date on
the amendment permitted by the court was more than sixty days after
service of the original writ of summons and complaint. See General Statutes
§ 52-48 (b) (providing that return date must be made no later than two
months after date of process).
6
In making his request, the plaintiff cited General Statutes § 52-48 (b),
which provides: ‘‘All process shall be made returnable not later than two
months after the date of the process and shall designate the place where
court is to be held.’’
7
Specifically, the plaintiff argues the following in his brief: ‘‘Most notably,
all of the issues with reference to the motion to dismiss were extensively
addressed by the lower court by way of briefs and oral argument. There is
no written decision of the court’s denial of the defendant’s motion to dismiss.
The defendant never requested a motion for articulation of the decision
denying his motion to dismiss. There is no sufficient record for this court
to review as this issue was not raised at trial. The defendant never filed a
notice of intent to appeal Judge Wagner’s decision . . . although . . . Prac-
tice Book § 62-5 provided the proper avenue for redress of the denial.
Therefore, the record is not adequate to permit [this court] to review the
issues raised. . . . Pursuant to . . . Practice Book §§ 66-5 and 66-6, the
defendant could have taken action to perfect the record for review of the
denial of his motion to dismiss, yet he chose otherwise.’’ The plaintiff also
noted in his argument to this court that the trial court made no mention of
the defendant’s motion to dismiss in its memorandum of decision following
the hearing in damages. Despite these arguments, we disagree with the
plaintiff that the record is inadequate to review this claim and, therefore,
we reach its merits.
8
See footnote 6 of this opinion.
9
Practice Book § 10-60 (a) (3) provides in relevant part: ‘‘(a) Except as
provided in Section 10-66, a party may amend his or her pleadings or other
parts of the record or proceedings at any time subsequent to that stated in
the preceding section in the following manner . . . (3) By filing a request
for leave to file such amendment, with the amendment appended, after
service upon each party as provided by Sections 10-12 through 10-17, and
with proof of service endorsed thereon. If no objection thereto has been
filed by any party within fifteen days from the date of the filing of said
request, the amendment shall be deemed to have been filed by consent of
the adverse party. . . .’’
10
Practice Book § 10-61 provides: ‘‘When any pleading is amended the
adverse party may plead thereto within the time provided by Section 10-8
or, if the adverse party has already pleaded, alter the pleading, if desired,
within ten days after such amendment or such other time as the rules of
practice, or the judicial authority, may prescribe, and thereafter pleadings
shall advance in the time provided by that section. If the adverse party fails
to plead further, pleadings already filed by the adverse party shall be regarded
as applicable so far as possible to the amended pleading.’’
11
Practice Book § 10-32 provides: ‘‘Any claim of lack of jurisdiction over
the person or improper venue or insufficiency of process or insufficiency
of service of process is waived if not raised by a motion to dismiss filed in
the sequence provided in Sections 10-6 and 10-7 and within the time provided
by Section 10-30.’’ Practice Book 10-6 prescribes the following order of
pleadings: the plaintiff’s complaint, the defendant’s motion to dismiss the
complaint, the defendant’s request to revise the complaint, the defendant’s
motion to strike the complaint, the defendant’s answer including any special
defenses to the complaint, the plaintiff’s request to revise the defendant’s
answer, the plaintiff’s motion to strike the defendant’s answer, the plaintiff’s
reply to any special defenses. Practice Book § 10-7 provides: ‘‘In all cases,
when the judicial authority does not otherwise order, the filing of any
pleading provided for by [Practice Book § 10-6] will waive the right to file
any pleading which might have been filed in due order and which precedes
it in the order of pleading provided in that section.’’
12
We agree with the defendant that lost profits resulting from a breach of
contract must be proven with reasonable certainty. See Gianetti v. Norwalk
Hospital, 304 Conn. 754, 758, 781, 43 A.3d 567 (2012). To the extent that
the plaintiff argues otherwise, we disagree with the plaintiff.
Moreover, we disagree with the plaintiff’s argument that lost profits prop-
erly were awarded as reliance damages. The case cited by the plaintiff to
support this argument, ATACS Corp. v. Trans World Communications, Inc.,
155 F.3d 659, 669 (3d Cir. 1998), does not equate lost profits damages with
reliance damages. Instead, the court in that case suggested that reliance
damages may be awarded to protect an injured party’s reliance interest when
a court cannot measure lost profits, permitting the recovery of expenditures
made in anticipation of performance under the contract. Id. The issue of
reliance damages in the present case, which represented office start up
expenditures incurred by the plaintiff in anticipation of performance, was
separate and distinct from the issue of lost profits, the latter representing
a measure of damages that the plaintiff would have realized if the contract
had been performed in full. See Chila v. Stuart, 81 Conn. App. 458, 466,
840 A.2d 1176, cert. denied, 268 Conn. 917, 847 A.2d 311 (2004).
13
Specifically, the preliminary agreement provided: ‘‘The initial draws will
be paid [bi]weekly as money is available, with [the plaintiff] to receive
$250,000 annually and [the defendant] to receive $110,000 annually.’’
14
We observe that the dollar amounts used in the plaintiff’s lost profits
calculations, as submitted by him through his testimony, slightly conflict
with the dollar amounts submitted in his affidavit of debt, as well as with
the dollar amounts stated in the trial court’s memorandum of decision. It
appears as though the trial court, within its discretion, relied upon the dollar
amounts submitted in the plaintiff’s affidavit of debt.
15
While cross-examining the defendant, the plaintiff tried to elicit testi-
mony about the defendant’s own profits and losses during 2008 and 2009, but
he was unsuccessful in doing so because, in the absence of documentation to
refresh his memory, the defendant could not recall what his profits and
losses were for those years.
16
For this factor, our Supreme Court cited cases from other jurisdictions,
including: El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 708,
711, 261 N.W.2d 358 (1978) (evidence of increased profits after defendant’s
defective oven was replaced amounted to reasonably certain evidence of
lost profits); Gaudy v. Seaman, 188 Pa. Super. 475, 478, 479–80, 149 A.2d
523 (1959) (evidence of plaintiff’s success at different location after moving
from previous location as result of defendant’s breach of lease amounted
to reasonably certain lost profits); and Cook Associates, Inc. v. Warnick,
664 P.2d 1161, 1165–66 (Utah 1983) (evidence comparing plaintiff’s profits
and losses between two of its plants in different states, where one suffered
from defendant’s breach and other did not, amounted to reasonably certain
lost profits). Thus, we observe that these cases involve facts that differ
materially from the facts of the present case, insofar as the defendants in
those cases actually had been working with the plaintiffs such that they
involved joint business track records, as opposed to this case, in which the
parties never had worked together.
17
We nevertheless observe that the defendant testified that there had been
years in the past during which he had brought in more than $250,000 in
revenue for his own practice, as well as other years during which he had
brought in less than that amount.
18
Pursuant to Practice Book § 10-60 (a) (3), the plaintiff filed a written
request for leave to amend his complaint on July 16, 2013. On October 22,
2013, the court, in a written order, denied the plaintiff’s request.
19
Specifically, the plaintiff claims that, after the defendant failed to join
the firm, paralegals and other members of the support staff working at the
plaintiff’s firm were forced to expend time doing the following: (1) filing
new appearances in the numerous matters in which the firm previously had
filed appearances for Adler and Rosenthal, LLC; (2) addressing clients’
concerns regarding the defendant’s failure to join the firm; and (3) changing
logos, letterhead, envelopes, and other customized materials bearing the
name of Adler and Rosenthal, LLC.