System Pros, Inc. v. Kasica

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SYSTEM PROS, INC., ET AL. v. GENE KASICA
(AC 37105)
Gruendel, Lavine and Beach, Js.*
Argued February 16—officially released July 12, 2016
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Michelle M. Seery, with whom was William J. O’Sulli-
van, for the appellant (defendant).
Peter A. Ventre, for the appellee (plaintiff Robert
J. Majewicz).
Opinion
GRUENDEL, J. This appeal concerns the disintegra-
tion of a business relationship. The defendant, Gene
Kasica, appeals from the judgment of the trial court in
favor of the plaintiff Robert J. Majewicz1 on all eight
counts of the operative complaint. On appeal, the defen-
dant challenges the propriety of the court’s award of
damages in numerous respects. Specifically, he claims
that the court improperly awarded the plaintiff (1) one
half of the value of System Pros, Inc. (corporation), as
that corporation was valued on December 31, 2012,
(2) $467,786 in lost wages, (3) $18,149 attributable to
certain tax penalties the plaintiff sustained as a result
of the defendant’s actions, (4) $103,835 in obligations
that the court found the plaintiff owed his former wife
in his marital dissolution proceeding, (5) $326,864 in
prejudgment interest pursuant to General Statutes § 37-
3a, and (6) damages for violating the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq. The defendant also argues that, should
he prevail on the aforementioned claims, the court’s
supplemental judgment awarding the plaintiff $146,440
in attorney’s fees should be vacated. We affirm in part
and reverse in part the judgment of the trial court.
In its memorandum of decision, the court found the
following facts. The parties formed the corporation ‘‘on
or about January 12, 1993, for the purpose of supplying
consulting services, particularly in the areas of comput-
ers and computer software to insurance companies.
. . . Each owned . . . fifty percent of the stock of
[the] corporation. They were and are the only members
of [its] board of directors. [The plaintiff] was elected
president and treasurer, and [the defendant] vice presi-
dent and secretary. The division of duties and responsi-
bilities of the corporation were that [the defendant]
would be in charge of marketing and sales, and [the
plaintiff] would be in charge of administration of the
corporation, although [the plaintiff] was to be assigned
by the corporation to do consulting work for various
insurance companies. This division of duties and
responsibilities was admittedly oral but performed by
each party. It has been contested by [the defendant]
that there was such an agreement. However, this court
after listening to the testimony, in particular the testi-
mony [of] James Valenski . . . who testified that he
was an independent contractor hired by the corporation
and, during the time that he was so involved, that he
fully understood that the division of responsibility was
as set forth above. The court also believes [the plaintiff]
as to this arrangement and finds such arrangement to
have taken place. When [the plaintiff] did consulting
work for an insurance company, his income from that
consulting work would go into his account, and when
[the defendant] did consulting work for an insurance
company, his income went into his account. There was
also an account for work done by employees/indepen-
dent contractors which would go into a corporate
account which would then be divided between [the
plaintiff] and [the defendant] after payment of
expenses.
‘‘This arrangement worked quite well and was finan-
cially profitable for both individuals up until 2009 when
[the defendant], unhappy with [the plaintiff], took over
the corporation and in effect locked [the plaintiff] out
of any further dealings involving [the corporation]. [The
plaintiff] was no longer allowed on the premises, and,
as of the end of 2009, he became a nonentity as far as
[the defendant] and the corporation were concerned.
There is no question that the individuals no longer
trusted each other and were very critical of each other,
which has led this court to grant an application of disso-
lution of the corporation. There were personality differ-
ences and differences as to how the operation of the
corporation was being conducted. . . . Part of the
problem between the parties was that [the defendant]
wanted to make Valenski a member and/or partner of
the corporation to which [the plaintiff] objected. Valen-
ski was hired as an independent contractor to promote
marketing and sales and develop clients for himself and
clients [for] whom [the defendant] and [the plaintiff]
would perform consulting work. [The plaintiff] believed
that Valenski was doing work that was really the respon-
sibility of [the defendant]. Although [the plaintiff]
objected to retaining Valenski, he signed the contract
between [the corporation] and Valenski as the president
of [the corporation], thereby approving the independent
contract with Valenski. [The parties] were unable to
work out their differences . . . .’’
In late October, 2009, the defendant commenced an
action to dissolve the corporation pursuant to General
Statutes § 33-896 (dissolution action). The plaintiff at
that time declined his option to purchase all shares
owned by the defendant pursuant to General Statutes
§ 33-900. The plaintiff also declined the defendant’s
offer to appoint a receiver to operate the corporation
while the dissolution action was pending. The plaintiff
thereafter filed an answer and counterclaim.2
In February, 2010, the plaintiff commenced the pre-
sent action. The operative complaint, the plaintiff’s Jan-
uary 30, 2014 amended complaint, contained eight
counts. The first count sought an accounting, and the
second count alleged tortious interference with busi-
ness relationships. Counts three through six alleged
that the defendant breached a fiduciary obligation, an
implied covenant of good faith and fair dealing, the
standards of a corporate director under General Stat-
utes § 33-756, and the standards of a corporate officer
under General Statutes § 33-765. In count seven, the
plaintiff alleged a CUTPA violation. The eighth and final
count alleged that the defendant breached an oral con-
tract between the parties. On March 8, 2010, the court
granted a motion to consolidate that action with the
dissolution action.
By order dated October 19, 2012, the court appointed
Attorney Atherton B. Ryan as custodian of the corpora-
tion and certified public accountants Bart Giustina and
Bruno Passacantano as auditors thereof, as well as a
third auditor to be determined by agreement of the
parties.3 Those auditors were directed to ‘‘reconcile the
books and records of [the corporation] from October
1, 2009, to date . . . . In addition, each of the auditors
shall independent of one another determine the [corpo-
ration’s] fair value as of October 1, 2009, and a current
date on or before January 31, 2013. The auditors shall
file a report with the court of their findings by February
15, 2013.’’
A court trial commenced in June, 2013. Although
consolidated four years earlier, the court bifurcated the
trials of the dissolution action and the present action.
The court first conducted a trial on the dissolution
action over the course of four days. It thereafter ren-
dered a judgment that dissolved the corporation in
accordance with General Statutes § 33-897 et seq., and
designated Ryan as the receiver charged with winding
up and liquidating the business and affairs of the corpo-
ration. The propriety of that judgment is not contested
in this appeal.
Trial of the present action began on October 30, 2013,
and was continued over ten additional days. All but two
days consisted of the testimony of the plaintiff. The
defendant did not testify, but the court did hear the
testimony of Giustina, Passacantano, Philip J. DeCa-
prio, Jr., Valenski, and Attorney Douglas Manion. In
its memorandum of decision, the court found that the
plaintiff ‘‘was a very credible and honest witness. . . .
[H]e was particularly honest, candid and forthcoming.’’
The court also credited the testimony of DeCaprio, find-
ing that ‘‘[h]e was devoid of any bias and was indepen-
dent, and he gave a good basis for his evaluation of the
[corporation].’’ The court credited Valenski’s testimony
as it pertained to the affairs of the corporation and
credited Passacantano’s testimony on the ‘‘sole point’’
of whether the plaintiff ‘‘had to cash in his 401 (K) and/
or IRAs and suffered a penalty’’ due to ‘‘his involuntary
departure from [the corporation] . . . .’’ The court did
not credit the testimony of Giustina or Manion.
In its July 30, 2014 memorandum of decision, the
court concluded that the defendant was liable to pro-
vide an accounting of the corporation. The court also
ruled in favor of the plaintiff on counts two through
eight of the operative complaint while rejecting the
defendant’s statute of limitations and laches special
defenses. With respect to damages, the court reiterated
that it found the plaintiff ‘‘credible and trusts his valua-
tion of the damages he suffered as set forth in [his]
exhibit 87 with any exceptions described herein. [The
plaintiff’s] testimony and his list of damages, as well
as the basis and computation thereof, the court finds
to be credible.’’4 The court then summarized its award
of damages as follows: ‘‘(1) Lost Wages – $467,786; (2)
Half of the value of the corporation as of December 31,
2012 – $86,500; (3) Penalties re: 401 (K) and IRAs –
$18,149; (4) Obligations [the plaintiff] has to fulfill pur-
suant to the marriage dissolution case of Majewicz v.
Majewicz – $103,835; (5) Sua sponte interest at 10 per-
cent per annum, for money wrongfully withheld pursu-
ant to [§] 37-3a from November 1, 2009 to August 1,
2014 – $326,864 [for a total of] $1,003,134.’’ The court
also awarded the plaintiff punitive damages in the form
of attorney’s fees, noting that ‘‘[a] supplemental judg-
ment will be rendered following the hearing on attor-
ney’s fees and receipt of [an updated audit of the books
and records of the corporation from DeCaprio] for the
period January 1, 2013 to date, the request to [have
DeCaprio complete that audit] having been by stipula-
tion of the parties.’’
Following that hearing, the court, on August 28, 2014,
awarded the plaintiff the sum of $146,440 in attorney’s
fees. In a report dated September 5, 2014, DeCaprio
provided the court an updated analysis of the books and
records of the corporation, which was accompanied by
a detailed ‘‘Schedule of Adjustments.’’ That analysis
concluded that there existed ‘‘a financial obligation in
favor of [the plaintiff] in the amount of $140,322.55.’’ On
September 30, 2014, the court rendered a supplemental
judgment in favor of the plaintiff, which reflected both
the $146,440 award of attorney’s fees and the
$140,322.55 award on the audit of the corporation, as
documented in DeCaprio’s report. The court thus con-
cluded that ‘‘[j]udgment is hereby entered in favor of
[the plaintiff] against [the defendant for a total of]
$1,289,895.55.’’ This appeal followed.
Before considering the specific claims advanced by
the defendant in this appeal, we first note what is not
in dispute. In its July 30, 2014 memorandum of decision,
the court determined, inter alia, that the defendant was
liable on counts one through six for providing an
accounting of the corporation, interfering with the
plaintiff’s business relationships, breaching his fidu-
ciary obligation to the plaintiff, breaching the implied
covenant of good faith and fair dealing between the
parties, breaching the standards of a corporate director
under § 33-756, and breaching the standards of a corpo-
rate officer under § 33-765. In this appeal, the defendant
does not contest his liability on those counts. In addi-
tion, the court expressly found ‘‘that the actions of the
corporation, once [the defendant] took control thereof,
were the actions of [the defendant] on the basis that
his conduct pierced the corporate veil. . . . [T]his
court finds that the corporate veil was pierced and that
[the defendant] was an alter ego of the corporation
and that [the defendant] is individually liable to [the
plaintiff] . . . for all actions of himself and of [the cor-
poration].’’ That determination also is not challenged
in this appeal.
We further note the standard of review that governs
challenges to damages awards. ‘‘[T]he trial court has
broad discretion in determining damages. . . . The
determination of damages involves a question of fact
that will not be overturned unless it is clearly errone-
ous.’’ (Internal quotation marks omitted.) Russell v.
Russell, 91 Conn. App. 619, 643, 882 A.2d 98, cert.
denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). ‘‘When,
however, a damages award is challenged on the basis of
a question of law, our review . . . is plenary.’’ (Internal
quotation marks omitted.) Landry v. Spitz, 102 Conn.
App. 34, 49–50, 925 A.2d 334 (2007).
I
The defendant first claims that the court improperly
awarded the plaintiff one half of the value of the corpo-
ration, as it was valued by DeCaprio as of December 31,
2012, as part of its award of damages on the accounting
count of the operative complaint.5 We agree.
The following additional facts are relevant to this
claim. The first count of the operative complaint sought
an accounting of the corporation. On October 19, 2012,
the parties appeared before the court to submit a pro-
posed order regarding the appointment of three audi-
tors in connection therewith. After brief discussion on
the language employed, the court approved the order
largely ‘‘as submitted by counsel for all parties . . . .’’
That order stated in relevant part that ‘‘[a]n accounting
of [the corporation] . . . is warranted.’’ The order then
assigned the auditors two distinct tasks. First, the audi-
tors were to ‘‘reconcile the books and records’’ of the
corporation. Second, each auditor was charged with
rendering a valuation of the corporation as of both
‘‘October 1, 2009, and a current date on or before Janu-
ary 31, 2013.’’ A review of both the transcript of the
October 19, 2012 proceeding and the court order
entered on that date confirms that two distinct issues
were before the court with respect to the accounting
count of the operative complaint. First, the plaintiff
sought an audit of the books, records, and assets of the
corporation. Second, the plaintiff sought a valuation of
the corporation.
The proper valuation of a corporation ‘‘presents a
factual determination subject to the clearly erroneous
standard.’’ Russell v. Russell, supra, 91 Conn. App. 643.
‘‘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.’’
(Internal quotation marks omitted.) Murtha v. Hart-
ford, 303 Conn. 1, 12–13, 35 A.3d 177 (2011).
It is undisputed that the plaintiff owned 50 percent
of the stock of the corporation. It further is undisputed
that the defendant was liable for his tortious conduct
under counts two through six of the complaint, which
transpired, the court found, once the defendant seized
control of the corporation and effectively locked the
plaintiff out. As an equal shareholder in the corporation,
the plaintiff plainly had a compensable interest in the
corporation. Indeed, the defendant does not argue oth-
erwise.
The question, then, is whether the court erred in
awarding the plaintiff the sum of $86,500 as compensa-
tion for his one-half interest of the corporation, as it
was valued as of December 31, 2012, by DeCaprio in
his February 25, 2013 report.6 In his report, DeCaprio
valued the corporation at $81,000 as of October 1, 2009,
and at $173,000 as of December 31, 2012. Admittedly,
DeCaprio’s report complied with the October 19, 2012
order of the court to ‘‘determine the [corporation’s] fair
value as of October 1, 2009, and a current date on
or before January 31, 2013.’’ The court nevertheless
provided no explanation for its decision to impose dam-
ages in accordance with the later date in either its July
30, 2014 memorandum of decision or its June 19,
2015 articulation.7
In his February 25, 2013 report, DeCaprio expressly
indicates that ‘‘[t]he standard of value used in [his]
valuation’’ was that set forth in General Statutes § 33-
855 (4), which provides in relevant part that ‘‘ ‘fair value’
means the value of the corporation’s shares determined:
(A) Immediately before the effectuation of the corpo-
rate action to which the shareholder objects . . . .’’
The corporate action to which the plaintiff, as a share-
holder, objected was the commencement of the dissolu-
tion action and related conduct of the defendant that
began on October 30, 2009. Consistent with the standard
of value employed by DeCaprio, the proper valuation
in the present case was his valuation of the corporation
as of October, 2009.
That determination is consonant with the testimony
of the plaintiff. At trial, the plaintiff agreed that the
proper valuation date was the fall of 2009, rather than
December, 2012. He testified that, as part of his claim
for damages, he was seeking half of the value of the
corporation as of November, 2009. When asked by his
attorney why he was not ‘‘going to give any adjustment
for the valuation as of December 31, 2012,’’ the plaintiff
answered, ‘‘[b]ecause if the [corporation] is dissolved,
the value is zero, so therefore the damages are half the
value of the corporation as of November 2, 2009.’’ When
his attorney then inquired as to precisely what his claim
for damages was, the plaintiff testified, ‘‘half the value
of what [the corporation] was in November [of] 2009.’’
In light of both the standard of value employed by
DeCaprio in his valuation of the corporation and the
unequivocal testimony of plaintiff at trial, we are left
with a definite and firm conviction that a mistake has
been committed with respect to the proper valuation
of the corporation. Accordingly, the plaintiff’s recovery
for one half of the value of the corporation must be
reduced from $86,500 to $40,500, which figure repre-
sents half of the $81,000 valuation of the corporation,
as of October, 2009, furnished by DeCaprio.8
II
The defendant next challenges the award of $467,786
in lost wages, claiming that the plaintiff failed to estab-
lish this award with reasonable certainty. By contrast,
the plaintiff maintains that his testimony at trial, in
tandem with the documentary evidence he submitted,
substantiates the award for lost wages. We agree with
the defendant.9
‘‘It is axiomatic 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.
. . . Damages are recoverable only to the extent that
the evidence affords a sufficient basis for estimating
their amount in money with reasonable certainty.’’
(Internal quotation marks omitted.) Ulbrich v. Groth,
310 Conn. 375, 441, 78 A.3d 76 (2013). ‘‘[T]he 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 mathe-
matical exactitude is a precondition 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 quota-
tion marks omitted.) Weiss v. Smulders, 313 Conn. 227,
254, 96 A.3d 1175 (2014).
As the court found in its memorandum of decision,
the corporation supplied consulting services to insur-
ance companies. The plaintiff and the defendant equally
divided the profits of the corporation, which resulted
primarily from the placement of other consultants in
service contracts.10 The plaintiff retained all earnings
from consulting services that he personally rendered
to clients, which earnings were not considered profits
of the corporation. In addition, the plaintiff never
received a salary from the corporation. As he testified
at trial, ‘‘[t]he only compensation [he] ever received
was 50 percent of the profits’’ of the corporation.
The plaintiff’s claim for lost wages is predicated on
his allegation, which the court credited, that the defen-
dant failed to disclose available consulting positions to
the plaintiff after locking him out of the corporation in
late 2009. The plaintiff testified that, prior to 2009, he
routinely received e-mail communications regarding
existing or potential clients that were looking for con-
sultants. As he stated, ‘‘I was regularly contacted and
given information about positions that were available
to [the corporation] both from the standpoint if I wished
to have a position or if I knew somebody that could be
used to fill one of the positions.’’ The plaintiff also
testified that, once the defendant seized control of the
corporation, he no longer received such communica-
tions, stating that he was ‘‘cut off from everything at
the end of 2009.’’
Critical to our analysis are three pieces of documen-
tary evidence that the plaintiff introduced at trial in
support of his claim for lost wages. First, the plaintiff
submitted exhibit 70, which is a document he prepared
that lists ‘‘various individuals [who] were placed at [the
corporation’s] clients’’ from August 1, 2009 to June 30,
2013. That document includes a total of twenty-one
placements and notes the start and end dates of each
placement, as well as the hourly rate of compensation.
The rate of compensation varied for each placement
and ranged from $63 to $100 per hour. Second, more
than 300 pages of invoices from the corporation regard-
ing those placements were admitted as exhibit 71.
Third, the plaintiff introduced a detailed spreadsheet,
admitted as exhibit 75, that he had prepared titled ‘‘Lost
Wages January 1, 2010 to November 1, 2013.’’ For every
week during that period, the document specifies an
amount of lost wages, predicated on a forty hour work
week and calculated at an hourly rate of $85 for weeks
in which he was unemployed, and at an hourly rate of
$35 for weeks in which he allegedly was underem-
ployed.11 The sum of lost wages specified on that docu-
ment is $533,400.12
The plaintiff augmented that documentary evidence
with his testimony at trial. He testified that he ‘‘created
[exhibit 75] out of an Excel spreadsheet for the time
period that I was unemployed or underemployed and
the amount of time I would have lost as a result of
being locked out of [the corporation]. . . . Exhibit 70
shows that there were numerous jobs that were avail-
able to me during that period of time that I was not
given an opportunity to apply for . . . and this is the
amount of money that I would have lost as a result of
not having those jobs.’’ The plaintiff testified that he
calculated his rate of compensation at $85 per hour,
which was a rate he previously received from a prior
client.13 The plaintiff also opined that exhibit 75 repre-
sented a summary of hours that he would have been
able to work had ‘‘all of the openings that were avail-
able’’ been disclosed to him. In awarding the plaintiff
$467,786 in damages for lost wages, the court credited
the plaintiff’s ‘‘testimony and his list of damages, as
well as the basis and computation thereof . . . .’’
Assuming arguendo that the court properly deter-
mined that the defendant breached an agreement to
disclose available consulting positions to the plaintiff,
as the plaintiff alleged in the operative complaint,14
there nonetheless remains an enormous evidentiary gap
between that improper conduct and the $467,786 award
for lost wages. Although the plaintiff presented ample
evidence regarding the nature of the opportunities for
employment that were not communicated to him, his
testimony as to whether he would in fact have secured
such employment resorted to conjecture and subjective
opinion, which cannot constitute the basis for an award
of damages. See American Diamond Exchange, Inc.
v. Alpert, 302 Conn. 494, 513, 28 A.3d 976 (2011) (‘‘the
plaintiff bears the burden of producing evidence of suffi-
cient quality to permit the fact finder to award damages
without resort to conjecture or speculation’’); Beverly
Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, 247 Conn. 48, 76, 717 A.2d 724 (1998) (‘‘[i]n
order to remove the assessment of damages from the
realm of speculation, it is necessary to tie the award
of damages to objective verifiable facts’’); Viejas Band
of Kumeyaay Indians v. Lorinsky, 116 Conn. App. 144,
163, 976 A.2d 723 (2009) (‘‘[e]vidence is considered
speculative . . . when the party relies on subjective
opinion’’); CAS Construction Co. v. East Hartford, 82
Conn. App. 543, 557, 845 A.2d 466 (2004) (‘‘[s]peculative
evidence is not sufficient evidence for the trier to make
a fair and reasonable estimate of the plaintiff’s
damages’’).
In his testimony, the plaintiff acknowledged that his
claim for lost wages was predicated on various assump-
tions. For example, when asked whether it was ‘‘fair
to say that you base [the calculation of lost wages in
exhibit 75] on the assumption that you would have
obtained [employment] at $85 an hour,’’ the plaintiff
answered, ‘‘That’s one of the assumptions, yes.’’
Even more significantly, the plaintiff failed to pro-
duce sufficient nonspeculative evidence that he would
have secured the positions detailed in exhibit 70, which
listed various consultants placed by the corporation.
At trial, Valenski was asked to describe the process
of securing a placement with one of the corporation’s
clients. He testified that it involved ‘‘all kinds of compe-
tition. You have to find a manager who’s looking for
an opening for an [information technology] programmer
kind of person. Then you put the phone down. You
have to go run around, try to do recruiting, try to find
a candidate. You submit the candidate’s resume. The
manager looks at it. Half the times he gets back to you;
half the times he doesn’t get back to you. If he does,
he interviews your candidate. There’s no guarantee that
you[r] candidate’s gonna get the job in any way, shape,
or form because there’s other firms that are inter-
viewing other candidates. Yeah, it’s a very tedious pro-
cess, you know. It’s not like you put a resume in and
it’s a guarantee that the guy’s gonna get the job.’’ Valen-
ski also explained that there were ‘‘thousands of compa-
nies’’ engaged in the same business as the corporation,
which made employment opportunities ‘‘very, very
competitive . . . .’’ In addition, the plaintiff introduced
into evidence an e-mail correspondence between him-
self and Valenski from the spring of 2009, in which the
plaintiff inquired as to whether the corporation ‘‘cur-
rently . . . had any requests for services from any com-
pany.’’ Valenski replied that ‘‘[t]here is nothing open at
this time. I have marketed and networked all around
and it is the worst I have seen.’’ At that time, the United
States was mired in the great recession, as DeCaprio
noted in his February 25, 2013 report.
In his testimony, the plaintiff admitted that, had he
applied for any of the positions detailed in exhibit 70,
he would have been competing with a number of other
candidates. He also testified that, to secure such
employment, he would have had to submit a resume
and to participate in interviews. At the same time, when
asked whether it was possible that he might not have
been hired for any of those positions, the plaintiff
answered, ‘‘No.’’ The plaintiff also offered his subjective
opinion that ‘‘I think my past history of being employed
. . . having positions in multiple companies for multi-
ple years would prove that I’d wind up getting hired
by them.’’
The undisputed documentary and testimonial evi-
dence in the record nonetheless indicates that the plain-
tiff on numerous occasions was unsuccessful in
securing employment for such positions in this particu-
lar industry during the time period in question. At trial,
the plaintiff introduced into evidence a ‘‘job search log’’
that he created to keep track of various employment
inquiries that he made in the years following his ouster
from the corporation. When questioned about that job
search log, the plaintiff acknowledged that he had
applied for, or inquired about, hundreds of positions
that he ultimately did not secure. The plaintiff also
testified that he had applied for ‘‘four or five permanent
positions’’ in his particular area of expertise, but did not
obtain any of those positions. In addition, the plaintiff
conceded at trial that, although he was claiming dam-
ages for lost wages, he did not subpoena or call any
witnesses from any of the employers listed on exhibit
70 to establish his claim for damages. The plaintiff fur-
ther did not offer any expert testimony thereon. In so
doing, the plaintiff failed to remove his claim for lost
wages from the realm of speculation and conjecture.
See Beverly Hills Concepts, Inc. v. Schatz & Schatz,
Ribicoff & Kotkin, supra, 247 Conn. 76; Viejas Band
of Kumeyaay Indians v. Lorinsky, supra, 116 Conn.
App. 163.
The plaintiff’s lost wages calculation rests on an addi-
tional assumption—namely, that he was qualified for
all of the opportunities described in exhibit 70. The
record indicates otherwise.
In his testimony, the plaintiff detailed his background
in ‘‘mainframe and CICS programming,’’ explaining that
his ‘‘specialty’’ was programming in the Vantage-One
system, a computer system widely used in the insurance
industry. The plaintiff testified that, at the time of the
trial, he had twenty-seven years of programming experi-
ence. The plaintiff distinguished between programming
and business analysis work, and admitted that he had
very little experience as an analyst or as a project man-
ager. Rather, his experience was limited to mainframe
and technologies using certain languages. The plaintiff
admitted that he was not qualified for business analyst
positions. Valenski corroborated that testimony.
Yet, the undisputed evidence in the record indicates
that the plaintiff included several business analyst
placements in exhibit 70. Valenski testified that the
placements with Aegon, National Life of Vermont, and
Life Insurance Co. of the Southwest secured by Barbara
Granata, Kim Grinsted, and Dana Robbins all were busi-
ness analyst positions. Those placements comprise
approximately one quarter of the placements detailed in
exhibit 70. In his testimony, the plaintiff acknowledged,
consistent with the foregoing evidence, that some of
the positions included in exhibit 70 ‘‘might have been’’
for business analysts. The plaintiff’s own testimony con-
firms that he was not qualified for such positions.
In addition, the plaintiff testified that, as of 2009, and
pursuant to a dissolution of marriage decree, he had
shared custody of his youngest daughter. Because of
that obligation, the plaintiff testified that he ‘‘didn’t want
to work out of state.’’ Valenski likewise testified that,
with respect to ‘‘conditions regarding [the plaintiff’s]
prospective placements at other companies,’’ his under-
standing was that such positions ‘‘would have to be in
Connecticut in the Hartford area . . . .’’ Valenski testi-
fied that certain positions with the client known as ‘‘Life
Insurance Co. of the Southwest’’ were in Dallas, Texas.
The plaintiff nevertheless included positions with that
client in exhibit 70.
The undisputed testimonial and documentary evi-
dence in the record thus reveals that the plaintiff’s lost
wages claim was predicated on multiple assumptions.
It assumed that the plaintiff would be compensated at
an hourly rate of $85, despite the fact that the majority
of placements described in exhibit 70 were at a different
rate. His claim assumed that the plaintiff was qualified
for those placements, when he admittedly was unquali-
fied for the five business analyst placements included
in exhibit 70. The plaintiff also erroneously assumed
that all placements included in that exhibit were located
in Connecticut. Lastly, the plaintiff’s claim for lost
wages assumed that he would have secured employ-
ment if he had been apprised of the opportunities
described in exhibit 70. The record lacks sufficient non-
speculative evidence to substantiate those assump-
tions. See Weiss v. Smulders, supra, 313 Conn. 258
(assumptions underlying damages theory ‘‘must be rea-
sonable in light of the record evidence’’).
The speculative nature of the plaintiff’s claim for lost
wages is exemplified by his testimony regarding place-
ments with the client known as ‘‘Aegon.’’ Exhibit 70
includes ten placements with Aegon.15 Three of those
placements were for business analyst positions, for
which the plaintiff admittedly was not qualified. Of the
remaining seven placements, the plaintiff testified at
trial that he did not know whether five were located
in Connecticut or another state. Earlier in his testimony,
the plaintiff had made clear that he would only consider
placements located in Connecticut.
With respect to whether he would have secured any
of those seven placements, the plaintiff opined that he
believed that he was qualified for those positions. He
predicated that opinion on the fact that he ultimately
was hired by Vertex, Inc., to perform consulting work
for Aegon from October, 2011 to July, 2012. Two of the
placements, however, were for service contracts that
commenced two years earlier and ran from October 12,
2009 to December 31, 2010, at which time our nation
was still recovering from the great recession, as noted
by DeCaprio in his February 25, 2013 report. As Valenski
confirmed in an e-mail correspondence that the plaintiff
introduced into evidence, the market for the plaintiff’s
services was ‘‘the worst I have seen’’ at that time. More-
over, the job search log submitted into evidence by the
plaintiff indicates that he unsuccessfully pursued ‘‘open
positions’’ with Aegon in February, 2010.
As to the remaining five placements with Aegon, they
all overlapped with the period of the plaintiff’s con-
sulting work at Aegon. When asked if he knew ‘‘for a
fact whether Aegon would have hired you for any of
[those] positions,’’ the plaintiff testified that ‘‘I’m assum-
ing that [Aegon] would have used the same criteria and
hired me [because] it was the exact same type of work.
. . . I think my past history of being employed and
. . . having positions in multiple companies for multi-
ple years would prove that I’d wind up getting hired by
them.’’ The plaintiff nevertheless conceded that he did
not call anybody from Aegon to testify, nor did he sub-
poena such witnesses to establish his damages.16 Fur-
thermore, the plaintiff’s testimony that he was
compensated at a rate of $50 per hour for his consulting
work at Aegon undermines his claim for lost wages at
a rate of $85 per hour, particularly when he insisted
that that those five positions at Aegon were for ‘‘the
exact same type of work.’’ In sum, the plaintiff’s claim
for lost wages for placements at Aegon is plagued by
numerous assumptions that are not sufficiently sup-
ported by objective, nonspeculative evidence in the
record.
‘‘Under Connecticut law, damages may not be predi-
cated on a contingency.’’ Meadowbrook Center, Inc. v.
Buchman, 149 Conn. App. 177, 193, 90 A.3d 219 (2014).
Fatal to the plaintiff’s claim for lost wages is the assump-
tion that, because an opportunity for employment
existed, he necessarily was qualified for and would have
obtained that employment. There exists a critical differ-
ence between having ‘‘opportunity to apply for’’ a ser-
vice contract and obtaining one.17 As the court itself
recognized in the midst of the plaintiff’s testimony,
although the plaintiff had offered his subjective opinion
that he was qualified for the placements noted in exhibit
70, ‘‘that’s his opinion that he was qualified for these
jobs. . . . Still whether he would have gotten the job
is somewhat speculative . . . .’’ The court nonetheless
relied on that conjecture in awarding the plaintiff dam-
ages for lost wages.
In light of the foregoing, we conclude that the plaintiff
has not met his burden of producing evidence of suffi-
cient quality to permit the fact finder to award damages
for lost wages without resort to conjecture or specula-
tion. See American Diamond Exchange, Inc. v. Alpert,
supra, 302 Conn. 513. The record before us lacks evi-
dence that ‘‘allows for some objective ascertainment
of the amount’’ of damages for lost wages that the
plaintiff sustained that is ‘‘not merely subjective or spec-
ulative . . . .’’ (Internal quotation marks omitted.) Id.,
510; see also CAS Construction Co. v. East Hartford,
supra, 82 Conn. App. 557 (‘‘[s]peculative evidence is
not sufficient evidence for the trier to make a fair and
reasonable estimate of the plaintiff’s damages’’).
Because the plaintiff failed to produce sufficient non-
speculative evidence of his claimed damages, we con-
clude that the court improperly awarded the plaintiff
$467,786 for lost wages in the present case.
III
The defendant claims that the court erroneously
awarded the plaintiff $18,149 in damages attributable
to certain tax penalties the plaintiff sustained. Although
the defendant does not dispute the court’s finding that
the plaintiff incurred those tax penalties, he argues that
‘‘[t]he error in the ‘lost wages’ award tainted the conclu-
sion that [the defendant] also caused [the plaintiff’s]
tax penalties.’’ We do not agree.
In this case, the court rendered judgment in favor of
the plaintiff. In this appeal, the defendant does not
contest his liability under the first six counts of the
operative complaint. The court in its memorandum of
decision specifically found that the defendant seized
control of the corporation and wrongfully locked the
plaintiff out. Through his actions, the court found that
the defendant committed various torts against the plain-
tiff by interfering with the plaintiff’s business relation-
ships, breaching his fiduciary obligation to the plaintiff,
breaching the implied covenant of good faith and fair
dealing between the parties, breaching the standards
of a corporate director under § 33-756, and breaching
the standards of a corporate officer under § 33-765.
At trial, the plaintiff testified that, as a result of the
defendant’s conduct in locking him out of the corpora-
tion and refusing to provide distributions from the cor-
poration, he ‘‘had to drain money out of my 401—my
IRA account in order to survive and pay bills.’’18 Specifi-
cally, the plaintiff testified that he withdrew approxi-
mately $170,000 from his 401 (K) account. As a result,
he incurred tax penalties for those withdrawals. The
plaintiff introduced into evidence approximately sev-
enty pages of statements from his Scottrade IRA
account, which verified the plaintiff’s testimony with
respect to those withdrawals. Also admitted into evi-
dence were redacted copies of the plaintiff’s personal
tax returns for the years 2007 through 2012. Passacan-
tano likewise testified that the plaintiff sustained tax
penalties as a result of those withdrawals, which were
reflected on those tax returns.19 The court expressly
credited that testimony in its memorandum of decision.
In his three sentence discussion of this issue in his
appellate brief, the defendant argues that because the
court’s award for lost wages must be vacated, its award
for tax penalties too must fail. He provides neither
authority nor analysis in support of that contention.
To the contrary, we conclude that the record amply
supports the court’s finding that the plaintiff sustained
tax penalties as a result of the defendant’s actions. The
court found the defendant liable for numerous acts of
tortious conduct against the plaintiff, and the plaintiff
presented the aforementioned evidence indicating that
he suffered tax penalties as a result. We therefore can-
not conclude that the court’s award of damages with
respect to those tax penalties is clearly erroneous.
IV
The defendant also contends that the court errone-
ously awarded the plaintiff $103,835 in damages for
obligations that the plaintiff owed to his former wife
in his marital dissolution proceeding. More specifically,
he claims that the court’s finding that the plaintiff ‘‘owed
$103,835 to his ex-wife’’ is clearly erroneous. The defen-
dant further claims that, even if the court’s award is
broadly construed as compensation for legal fees
incurred in connection therewith, the plaintiff still can-
not prevail. We agree.
A
We first consider the defendant’s challenge to the
court’s finding that the plaintiff ‘‘owed $103,835’’ to his
former wife. Neither the plaintiff’s original complaint
served on the defendant in February, 2010, nor the
operative complaint he filed following the completion
of his case-in-chief contain any allegation as to obliga-
tions to his former wife. At trial, the plaintiff produced
no evidence as to the amount of any such obligations.
In its memorandum of decision, the court found that
‘‘[b]ecause of [the plaintiff] being involuntarily sepa-
rated from [the corporation] by [the defendant], he . . .
was not able to pay alimony and other costs of [the
plaintiff’s] divorce and will have to pay them.’’ The
court thus awarded the plaintiff $103,835 in damages for
‘‘[o]bligations [he] has to fulfill pursuant to the marriage
dissolution case . . . .’’ The defendant filed a motion
for articulation with respect to that portion of the dam-
ages award, which the court denied.20 The defendant
thereafter filed a motion for review with this court,
which granted the motion and ordered the trial court
to articulate, inter alia, ‘‘the factual and legal basis for
awarding the plaintiff $103,835 attributable to ‘alimony
and other costs of [the plaintiff’s] divorce.’ ’’
In its June 19, 2015 articulation, the court stated that
‘‘[a]ccording to [the plaintiff], and not disputed by [the
defendant], [the plaintiff] owed $103,835 to his ex-wife
in his divorce case, the judge in that case delaying
enforcement of the payment to [her] until the instant
case was decided. [The plaintiff] was in a position where
he was unemployed because of the actions of [the defen-
dant] and was unable to pay his alimony to his [former]
wife. This was not disputed by [the defendant] and [the
plaintiff] was in arrears in his divorce case because of
the actions of [the defendant] resulting in [the plain-
tiff’s] unemployment. This was based upon the testi-
mony of [the plaintiff] which was not disputed.’’
We carefully have reviewed the voluminous record
and can find no support for the court’s finding that the
plaintiff ‘‘owed $103,835 to his ex-wife’’ pursuant to the
marital dissolution proceeding. Although the plaintiff
included that exact sum in his written list of damages
that was admitted into evidence as exhibit 87,21 he testi-
fied unequivocally at trial that this sum was attributable
to ‘‘over $100,000 in legal fees’’ he incurred in his post-
dissolution marital proceedings. The plaintiff testified
that, following his ouster from the corporation, he initi-
ated an alimony modification proceeding in March,
2010, which continued for years.22 He thus sought as
damages all legal fees he incurred in those proceedings.
Admitted into evidence was an affidavit of attorney’s
fees filed by the plaintiff’s attorney in those postdissolu-
tion proceedings, I. David Marder, who averred that
his billing records indicated an outstanding balance of
$76,772.84 as of September 29, 2013. Marder’s billing
records, which accompanied that affidavit, reflect a
total of approximately $84,000 for professional services
rendered, expenses, and surcharges.
Put simply, there is no evidence in the record to
substantiate the court’s finding that the plaintiff owed
his former wife $103,835. That finding, therefore, is
clearly erroneous.
In an attempt to salvage the award of $103,835 in
damages related to his postdissolution proceedings, the
plaintiff on appeal suggests that the court found that,
as a result of the defendant’s conduct, he ‘‘was forced
to engage in actions in the family court at a heavy cost,
which included seeking a modification of his alimony,’’
which resulted in the aforementioned legal fees. The
trial court, however, made no such findings. Rather, it
specifically found that the plaintiff ‘‘owed $103,835 to
his ex-wife in his divorce case . . . .’’ As we have
observed, ‘‘it is axiomatic that this appellate body does
not engage in fact-finding. Connecticut’s appellate
courts cannot find facts; that function is, according to
our constitution, our statute, and our cases, exclusively
assigned to the trial courts.’’ (Internal quotation marks
omitted.) Hogan v. Lagosz, 124 Conn. App. 602, 618, 6
A.3d 112 (2010), cert. denied, 299 Conn. 293, 11 A.3d
151 (2011). In the present case, the findings necessary
to substantiate the award of damages are lacking. The
court’s award of $103,835 in damages was founded on
its finding that the plaintiff owed his former wife that
sum pursuant to his marital dissolution obligations.
Because that finding is not supported by the evidence
in the record, that portion of the award of damages is
clearly erroneous.
B
To be clear, the plaintiff testified that he sought an
award of $103,835 for legal fees he incurred in his post-
dissolution marital proceedings. Even if the court had
rendered such an award—which its June 19, 2015 articu-
lation indicates it plainly did not—there is a paucity of
objective evidence in the record on which to predicate
such an award. Marder’s affidavit does not substantiate
the plaintiff’s claimed $103,835 in legal fees, but rather
falls tens of thousands of dollars shy of that sum. The
sole reference to that precise sum is contained in exhibit
87—the list of damages prepared by the plaintiff. See
footnote 4 of this opinion. At trial, the plaintiff likewise
testified that exhibit 87 included ‘‘over $100,000 in legal
fees’’ he incurred in his postdissolution marital proceed-
ings. The plaintiff provided no evidence to substantiate
that sum.
In addition, the plaintiff provided no evidence to
establish a basis on which the trier of fact reasonably
could conclude which portion of Marder’s legal fees for
services rendered in those postdissolution proceedings
were related to the plaintiff’s loss of income as a result
of being locked out of the corporation. Marder’s item-
ized billing statements, which were admitted into evi-
dence at trial, indicate that the plaintiff had accrued
more than $6000 in legal fees in his postdissolution
proceedings as of June, 2009—months prior to being
locked out of the corporation. The defendant in the
present case also submitted into evidence records from
the postdissolution proceedings to demonstrate that
they involved numerous issues unrelated to the plain-
tiff’s ouster from the corporation.23 Furthermore, the
defendant furnished the court with a copy of the May
30, 2014 decision of the Superior Court on certain post-
judgment motions in the plaintiff’s marital dissolution
case, including various motions for contempt filed by
the plaintiff’s former wife. In a thorough, seventy-one
page memorandum of decision, that court, inter alia,
found the plaintiff in contempt for (1) failing to make
child support payments when ‘‘he had the ability to do
so’’ while ‘‘earning $100,000 or more, annualized, at
Vertex and Mass Mutual’’; (2) failing to comply with
a court order requiring him to timely transfer certain
retirement funds to his former wife; (3) failing to sell
certain assets within a reasonable time; (4) failing to
pay his children’s unreimbursed medical expenses; and
(5) failing to comply with his obligation to pay for his
daughter’s college expenses when ‘‘[t]he evidence does
not show . . . that he lacked sufficient funds’’ to do
so. In requesting compensation in this case for the
entirety of his legal fees incurred in those postdissolu-
tion proceedings, the plaintiff offered no evidence or
explication as to precisely how the defendant’s conduct
related to Marder’s legal representation on such issues.
Much like his claim for lost wages, the plaintiff’s claim
for reimbursement of Marder’s legal fees in the present
case amounted to little more than wild conjecture,
which cannot serve as the basis for an award of dam-
ages. See American Diamond Exchange, Inc. v. Alpert,
supra, 302 Conn. 510.
The record before us lacks evidence to substantiate
the court’s award of $103,835 in damages for obligations
that the plaintiff owed to his former wife in his marital
dissolution proceedings. That award, therefore, is
clearly erroneous.
V
The defendant also contests the court’s legal conclu-
sion that CUTPA applied to the present dispute between
officers and equal shareholders of a corporation. He
claims that, under established Connecticut law, CUTPA
does not apply to such intracorporate conflicts.
Because he challenges the court’s interpretation of
CUTPA, our review is plenary. See Votto v. American
Car Rental, Inc., 273 Conn. 478, 483, 871 A.2d 981 (2005).
General Statutes § 42-110b (a) provides in relevant
part that ‘‘[n]o person shall engage in unfair methods
of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce. . . .’’ Our
Supreme Court has held that ‘‘purely intracorporate
conflicts do not constitute CUTPA violations . . . .’’
Ostrowski v. Avery, 243 Conn. 355, 379, 703 A.2d 117
(1997); accord Russell v. Russell, supra, 91 Conn. App.
646 (‘‘no CUTPA violation had been established’’
because ‘‘this dispute essentially was between two pri-
vate parties and . . . concerned their jointly owned
business, and, therefore, did not affect the public at
large’’). The present case involves an intracorporate
dispute between officers and equal shareholders of a
corporation. The court found, and the record reflects,
that this dispute originated with the defendant’s com-
mencement of an action to dissolve the corporation in
late October, 2009, and concerns his subsequent con-
duct in locking the plaintiff out of the corporation.
Although CUTPA generally does not apply to intra-
corporate conflicts, an exception to that rule exists
when a defendant’s actions ‘‘went well beyond gover-
nance of the corporation, and placed him in direct com-
petition with the interests of the corporation.’’ Fink v.
Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996).
That exception is implicated when the conduct of a
defendant has ‘‘the effect of usurping the customers,
employees or assets of one business in favor of another
business.’’ Metcoff v. Lebovics, 123 Conn. App. 512, 519,
2 A.3d 942 (2010); see also Larsen Chelsey Realty Co.
v. Larsen, 232 Conn. 480, 493–94, 656 A.2d 1009 (1995).24
In determining whether the exception applies, the criti-
cal inquiry does not concern the relationship between
individual parties within a corporation, such as the
plaintiff and the defendant in the present case. Fink v.
Golenbock, supra, 213. Rather, that analysis asks
whether such an individual’s conduct is adverse to the
corporation and its interests.25 Id.
In its terse discussion of the plaintiff’s CUTPA claim,
the court in its memorandum of decision found that
the defendant ‘‘utiliz[ed] the corporate assets for [his]
own benefits’’ and transferred ‘‘assets [of the corpora-
tion] to his other business . . . .’’ At the behest of the
defendant, this court subsequently ordered the trial
court to articulate that finding ‘‘by identifying the busi-
ness and the assets transferred.’’ The trial court there-
after articulated its finding as follows: ‘‘The court
remembers that [the plaintiff] testified that the [defen-
dant] had transferred assets of [the corporation] to
another business owned by [the defendant]. My recol-
lection is that the assets were described by [the plaintiff]
and he described the business, but the court . . . does
not recall which business it was and what assets were
transferred. The court . . . used this transfer of the
assets to another business owned by [the defendant]
as a basis, in part, for finding that [the plaintiff] had
proven the elements of his claims of a [CUTPA viola-
tion]. Where it was transferred and what assets were
transferred was known by the court at the time but no
amount was put on it.’’ Thus, despite this court’s order
to specify the business and assets referenced in its
memorandum of decision, the trial court’s articulation
indicates that it could not so recall.
Mindful of the clearly erroneous standard that gov-
erns factual findings, we have scoured the ample record
before us, with particular attention to the testimony of
the plaintiff. We can discern no evidentiary basis for the
court’s finding that the defendant improperly utilized
corporate assets for his own benefit or transferred
assets of the corporation to another business.
The record reveals that the defendant, for more than
a decade prior to the events in question, routinely with-
drew his proceeds from the corporation in the form of
checks to Kasica Enterprises, LLC. The plaintiff testified
that the defendant ‘‘took out a substantial portion of
his share of the monies derived from [the corporation]
through his Kasica Enterprises, LLC.’’ (Emphasis
added.) The plaintiff further testified that Kasica Enter-
prises, LLC, was an entity formed by the defendant to
save ‘‘hundreds of thousands of dollars’’ in the construc-
tion of a personal residence ‘‘by writing all this stuff
off as a business expense.’’26 There is no indication in
the record that Kasica Enterprises, LLC, was a business
that competed with the corporation or that the defen-
dant’s decision to allocate his portion of the corpora-
tion’s profits to that entity was improper.
At trial, the plaintiff also offered testimonial and doc-
umentary evidence indicating that, in the years after
locking him out of the corporation, the defendant with-
drew ‘‘money from [the corporation’s] savings and
operating accounts, put it into his personal [banking]
account, and then kept on moving money from one
account to the other . . . .’’ Nevertheless, when the
court inquired as to whether the defendant ever ‘‘used
any of this money for other than corporate purposes,’’
the plaintiff conceded that ‘‘I don’t have any evidence
of that.’’ Indeed, when the issue of the defendant’s han-
dling of corporate funds arose at trial, the plaintiff
explained that ‘‘[t]he purpose of . . . showing those
[funds] going out of the [corporate] account and going
into [the defendant’s] personal account was not to say
that he took that [money] and kept it for himself. What
it was to show was that he emptied out our accounts
making it impossible to properly manage [the corpora-
tion] at the time because he looted our bank accounts.
I’m not saying he took all our money out and kept it
out. He kept on moving it around and putting money
back into [the corporation].’’
In this case, there is no evidence to substantiate a
finding that the defendant’s actions placed him in direct
competition with the interests of the corporation or
that he ‘‘took certain actions designed to usurp the
business and clientele of one corporation in favor of
another.’’ Fink v. Golenbock, supra, 238 Conn. 212; see
also Metcoff v. Lebovics, supra, 123 Conn. App. 519;
Russell v. Russell, supra, 91 Conn. App. 647–48; Spector
v. Konover, 57 Conn. App. 121, 133–34, 747 A.2d 39,
cert. denied, 254 Conn. 913, 759 A.2d 507 (2000). More-
over, the trial court articulated no such findings in either
its July 30, 2014 memorandum of decision or its June
19, 2015 articulation.
At best, the record establishes that the defendant
improperly compensated himself for salary and other
expenses from the general account of the corporation.
DeCaprio’s audit of the corporation, which ultimately
resulted in a supplemental award of $140,322.55 in dam-
ages to the plaintiff, included various adjustments
regarding those payments from the general account.
That evidence confirms that the improprieties involved
in this case concern a purely intracorporate conflict.
As the plaintiff admitted in his testimony, there is no
evidence that the defendant utilized assets of the corpo-
ration for anything other than corporate purposes. The
present case thus is not one in which the defendant’s
actions ‘‘went well beyond governance of the corpora-
tion, and placed him in direct competition with the
interests of the corporation’’; Fink v. Golenbock, supra,
238 Conn. 213; or one in which the defendant usurped
the assets of the corporation ‘‘in favor of another busi-
ness.’’ Metcoff v. Lebovics, supra, 123 Conn. App. 519.
Accordingly, the court improperly determined that the
exception to the general rule that CUTPA does not apply
to intracorporate conflicts was implicated in this case.
VI
The defendant next claims that the court improperly
awarded the plaintiff, sua sponte, $326,864 in prejudg-
ment interest pursuant to § 37-3a. He contends that § 37-
3a does not apply because the damages awarded in the
present case do not concern moneys that were detained
after they were due and payable. The applicability of
§ 37-3a presents a question of law over which our review
is plenary. See Cadle Co. v. D’Addario, 131 Conn. App.
223, 243–44, 26 A.3d 682 (2011).
As a preliminary matter, we note that the court
awarded prejudgment interest on four distinct aspects
of its damages award—specifically, its award for (1) one
half of the value of the corporation; (2) tax penalties; (3)
lost wages; and (4) obligations that the plaintiff owed
to his former wife in their marital dissolution proceed-
ing. We already have determined that the latter two
awards were improper and, therefore, must be set aside.
See parts II and IV of this opinion. We thus consider
whether the court properly awarded prejudgment inter-
est on its award for one half of the value of the corpora-
tion and for tax penalties the plaintiff sustained.
The following undisputed facts are relevant to that
inquiry. The plaintiff did not request an award of pre-
judgment interest in either his original complaint or his
January 30, 2014 amended complaint, and at no stage
in the proceedings before the trial court did the plaintiff
mention, let alone request, such interest. In a record
that includes boxes of exhibits and more than 1600
pages of transcripts, the only reference to such interest
comes on the final page of the court’s memorandum of
decision, in which the court simply states, ‘‘Sua sponte
interest at 10 percent per annum, for money wrongfully
withheld pursuant to . . . § 37-3a from November 1,
2009 to August 1, 2014 – $326,864.’’ The defendant thus
was not afforded an opportunity to present evidence
on the propriety of that award. See Sears, Roebuck &
Co. v. Board of Tax Review, 241 Conn. 749, 766, 699
A.2d 81 (1997) (in awarding interest pursuant to § 37-
3a, trial court ‘‘should allow the parties, if appropriate,
to submit evidence relative to the rate of interest’’); cf.
Weber v. Fujifilm Medical Systems U.S.A., Inc., 933 F.
Supp. 2d 285, 305 (D. Conn. 2013) (‘‘in light of [d]efen-
dants’ evidence of the low interest rate climate in the
recent past . . . awarding ten percent compounded
interest [pursuant to § 37-3a] would provide an unwar-
ranted windfall to [p]laintiff’’), rev’d in part on other
grounds sub nom. Weber v. Tada, 589 Fed. Appx. 563,
565–67 (2d Cir. 2014).
The defendant maintains that the court improperly
concluded that § 37-3a applied in this case. Our analysis
of that claim begins with the relevant statutory lan-
guage. Section 37-3a (a) provides in relevant part that
‘‘interest at the rate of ten per cent a year, and no more,
may be recovered and allowed in civil actions . . .
including actions to recover money loaned at a greater
rate, as damages for the detention of money after it
becomes payable. . . .’’ The statute ‘‘applies to interest
as damages and allows a trial court to award interest
as compensation for the detention of money . . . .’’
Sikorsky Financial Credit Union, Inc. v. Butts, 315
Conn. 433, 442, 108 A.3d 228 (2015). Indeed, ‘‘the pri-
mary purpose of § 37-3a [is] to compensate parties that
have been deprived of the use of their money.’’ Sosin
v. Sosin, 300 Conn. 205, 230, 14 A.3d 307 (2011); see
also Neiditz v. Morton S. Fine & Associates, Inc., 199
Conn. 683, 691, 508 A.2d 438 (1986) (§ 37-3a ‘‘is intended
to compensate the prevailing party for a delay in
obtaining money that rightfully belongs to him’’); Pau-
lus v. LaSala, 56 Conn. App. 139, 151, 742 A.2d 379
(1999) (purpose of § 37-3a ‘‘is to compensate plaintiffs
who have been deprived of the use of money wrongfully
withheld by defendants’’), cert. denied, 252 Conn. 928,
746 A.2d 789 (2000). Our Supreme Court’s ‘‘earliest
cases interpreting § 37-3a reveal that . . . prejudgment
interest was allowed under the statute, namely, claims
to recover money that remained unpaid after it was due
and payable.’’ (Emphasis added.) DiLieto v. County
Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 51,
74 A.3d 1212 (2013).
The corollary to that principle is that § 37-3a does
not provide for interest on money that is not due and
payable. As this court has noted, ‘‘[§] 37-3a provides a
substantive right that applies only to certain claims.
. . . It does not allow prejudgment interest on claims
that are not yet payable, such as awards for punitive
damages . . . or on claims that do not involve the
wrongful detention of money, such as personal injury
claims. . . . The statute, therefore, applies to claims
involving the . . . detention of money after it becomes
due and payable.’’ (Citations omitted; emphasis in origi-
nal; internal quotation marks omitted.) Foley v. Hun-
tington Co., 42 Conn. App. 712, 739–40, 682 A.2d 1026,
cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Accord-
ingly, ‘‘[t]o award § 37-3a interest . . . the claim to
which the prejudgment interest attaches must be a
claim for a liquidated sum of money’’ detained by a
defendant. Ceci Bros., Inc. v. Five Twenty-One Corp.,
81 Conn. App. 419, 428, 840 A.2d 578, cert. denied, 268
Conn. 922, 846 A.2d 881 (2004). The question, then, is
whether the plaintiff’s claims for one half of the value
of the corporation and compensation for certain tax
penalties involve the detention of moneys that were
due and payable to the plaintiff.
We answer that query in the negative. The damages
award for one half of the value of the corporation was
not a sum already payable that the defendant withheld
from the plaintiff, but rather represented the plaintiff’s
portion, as an equal shareholder, of the valuation of the
corporation at the time that the proceeding to dissolve
the corporation was commenced, which valuation was
not determined until the court rendered judgment in
this case. The award of $18,149 for tax penalties sus-
tained by the plaintiff likewise was not for moneys
withheld by the defendant; that award compensated the
plaintiff for moneys that he was obligated to pay to the
Internal Revenue Service. Neither the award for one
half of the value of the corporation nor the award for
tax penalties involved a liquidated sum of money that
the defendant had withheld from the plaintiff.27 See
Nelson v. Tradewind Aviation, LLC, 155 Conn. App.
519, 547–48, 111 A.3d 887, cert. denied, 316 Conn. 918,
113 A.3d 1016 (2015); Reyes v. Chetta, 143 Conn. App.
758, 770, 71 A.3d 1255 (2013). For that reason, the court
improperly awarded prejudgment interest on those por-
tions of its damages award.
VII
As a final matter, the defendant claims that the award
of attorney’s fees should be vacated in this case, arguing
that the outcome of this appeal ‘‘will significantly dimin-
ish the results obtained at trial . . . .’’ We do not agree.
Notably, the attorney’s fees awarded to the plaintiff
by the court constituted punitive damages. In its memo-
randum of decision, the court specifically found that
the defendant was ‘‘liable to [the plaintiff] for punitive
damages in the form of attorney’s fees,’’ noting that
counts two through six of the operative complaint
involved ‘‘intentional torts [on which] punitive damages
in the form of attorney’s fees may be awarded . . . .’’
The defendant does not contest that determination.
As this court has observed, the ‘‘standard of review
for an award of punitive damages is well settled. [T]he
trial court has broad discretion in determining whether
damages are appropriate. . . . Its decision will not be
disturbed on appeal absent a clear abuse of discretion.
. . . If awarded, punitive damages are limited to the
costs of litigation less taxable costs, but, within that
limitation, the extent to which they are awarded is in
the sole discretion of the trier. . . . Limiting punitive
damages to litigation expenses, including attorney’s
fees, fulfills the salutary purpose of fully compensating
a victim for the harm inflicted on him while avoiding
the potential for injustice which may result from the
exercise of unfettered discretion by a [trier of fact].’’
(Citation omitted; internal quotation marks omitted.)
Nelson v. Tradewind Aviation, LLC, supra, 155 Conn.
App. 545.
In this case, the court found the defendant liable
under all eight counts of the operative complaint. It
bears repeating that the defendant in this appeal has
not contested his liability under the first six counts of
that complaint. As a result, the record before us con-
tains undisputed determinations that the defendant
committed various torts against the plaintiff when he
locked the plaintiff out of the corporation—namely,
interfering with the plaintiff’s business relationships,
breaching his fiduciary obligation to the plaintiff,
breaching the implied covenant of good faith and fair
dealing between the parties, breaching the standards
of a corporate director under § 33-756, and breaching
the standards of a corporate officer under § 33-765. The
defendant’s uncontroverted liability thereunder fur-
nishes an adequate basis on which the trier of fact
could conclude that an award of punitive damages was
appropriate. In light of our extensive review of the
ample record in this case, we cannot conclude that the
court abused its discretion in rendering that award.
The judgment is reversed in part and the case is
remanded with direction to vacate the damages award
with respect to $467,786 in lost wages, $103,835 for
obligations owed to the plaintiff’s former wife, and
$326,864 in prejudgment interest, and further to amend
the damages award to reflect an award of $40,500 on
the plaintiff’s claim for one half of the value of the
corporation. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
System Pros, Inc., also was named as a plaintiff in both the original
complaint and the January 30, 2014 amended complaint. In its memorandum
of decision, the court concluded that System Pros, Inc., was not a proper
party to this case. Neither party challenges that determination in this appeal.
We therefore refer to Majewicz as the plaintiff in this opinion.
2
The operative counterclaim consisted of six counts alleging various trans-
gressions on the part of the defendant. When the court rendered judgment
dissolving the corporation, it ruled in favor of the defendant on that counter-
claim, stating that it involved ‘‘the same issues’’ as those raised in the
present action.
3
The third auditor designated by the parties was Philip J. DeCaprio, Jr.,
a certified public accountant with more than forty years of experience. With
respect to designations for what he termed ‘‘specialty work,’’ DeCaprio
testified at trial that ‘‘I’m accredited in business valuation . . . and certified
in financial forensics . . . . I’m a certified valuation analyst . . . . I’m a
certified forensic accountant . . . and I’m also a diplomat of the American
Board of Forensic Accountants.’’
4
Titled ‘‘Majewicz vs. Kasica Damages,’’ exhibit 87 states in full:
‘‘Lost Wages 10/1/2010 to 11/1/2013 – $533,400
‘‘50% of Valenski Payments as of 6/30/2013 – $365,566
‘‘401K Penalties as of 12/31/2012 – $18,194
‘‘Damages as of 12/31/2012 – $533,700
‘‘Administrative cost as of 12/31/2012 – $72,664
‘‘Office Rent as of 12/31/2012 – $12,600
‘‘Alimony Modification Costs as of 10/21/2013 – $103,835
‘‘Custodian Fees as of 6/30/2013 – $11,588
‘‘Attorney Fees – Golas, Golas & Golas as of 10/22/2013 – $95,000
‘‘50% of System Pros Value as of 11/2/2009 – $355,626
‘‘Total as of 11/1/2013 – $2,116,676.’’
5
The defendant does not challenge the award of damages with respect
to DeCaprio’s September 5, 2014 audit of the books and records of the corpo-
ration.
6
‘‘[E]specially in the case of non-publicly held corporations, the valuation
of shares of corporate stock can become quite complex and uncertain.’’
Recovery Group, Inc. v. Commissioner of Internal Revenue, 652 F.3d 122,
129 (1st Cir. 2011). Although all three auditors provided valuations of the
corporation, the court in its memorandum of decision elected to credit that
provided by DeCaprio.
7
On April 22, 2015, this court ordered the trial court to articulate ‘‘[t]he
factual and legal basis for awarding the plaintiff one half of the value of
[the corporation] as of December 31, 2012 . . . .’’ In its June 19, 2015
articulation, the court stated: ‘‘[The plaintiff] was an owner of [the corpora-
tion] as a stockholder of 50 percent. He was also [its] president and a 50
percent member of the board of directors with [the defendant]. He was,
therefore, entitled to one half [of] the value of the corporation since he owned
one half. The amount was determined either from a report of [DeCaprio] and/
or a three [certified public accountant] panel that decided the value of
[the corporation].’’
8
In its memorandum of decision, the court credited both DeCaprio’s
testimony and his February 25, 2013 report, stating that ‘‘[h]e was a credible
witness . . . . He was devoid of any bias and was independent, and he
gave a good basis for his evaluation of the corporation . . . .’’ We further
note that the court’s award on the accounting count also encompassed
$140,322.55 in damages stemming from DeCaprio’s audit of the books and
records of the corporation. That figure originates from DeCaprio’s Septem-
ber 5, 2014 report, which the court appended to its supplemental judgment.
That report catalogues various adjustments to the corporate account, which
contained funds that the parties divided equally prior to the defendant’s
seizure of the corporation. After detailing various adjustments, the report
concludes that, owing primarily to salary paid to the defendant from that
account for the years 2010 through 2013, there was ‘‘a financial obligation
in favor of [the plaintiff] in the amount of $140,322.55.’’ The court rendered
judgment in favor of the plaintiff in accordance with that report on Septem-
ber 30, 2014. Because the court’s findings in this respect are substantiated
by the evidence in the record, they are not clearly erroneous.
9
The defendant also claims that the court improperly determined that (1)
he breached an oral contract with the plaintiff and (2) the award was not
time barred. In light of our conclusion that the award for lost wages was
not established with reasonably certainty, we need not address those alterna-
tive contentions.
10
At trial, the plaintiff described a typical consulting placement as follows:
‘‘You go into a company for a period of time. They may contract you for
six months or a year. It may be for a specific project or a task that they
want you to do, and when that task is done then . . . you wind up working
at another company or another location.’’
11
The plaintiff was employed by Vertex, Inc., to perform consulting work
for Aegon from October, 2011 to July, 2012, at a rate of $50 per hour. On
March 11, 2013, the plaintiff commenced employment with Massachusetts
Mutual in a salaried position that paid him $100,000 annually, which position
he maintained at the time of the trial.
12
The court’s award of $467,786 in damages for lost wages reflects a
reduction for unemployment compensation that the plaintiff received during
the period in question.
13
That prior client was not among those listed in exhibit 70.
14
The plaintiff instituted this action in February, 2010. Trial commenced
on October 30, 2013, and continued over the course of ten additional days,
concluding on January 31, 2014. Over the objection of the defendant, the
court on January 28, 2014—almost two weeks after the plaintiff had rested
his case-in-chief—permitted the plaintiff to file an amended complaint, which
added an eighth count that, for the first time, alleged a breach of contract
on the part of the defendant.
15
Although exhibit 70 also includes an additional placement with Aegon
for a person listed only as ‘‘Reese’’ for a three month period in 2012, Valenski
testified at trial, ‘‘That’s a typo. Foster Reese wasn’t at Aegon. . . . [H]e
worked shortly at ING, and he didn’t work out.’’ Exhibit 71, which consists of
hundreds of pages of invoices from the corporation regarding the placements
detailed in exhibit 70, likewise contains no documentation indicating that
Reese was placed in a service contract with Aegon.
16
The following colloquy transpired during the plaintiff’s testimony on
his proof of damages for lost wages:
‘‘[The Defendant’s Counsel]: [Y]ou didn’t call Aegon to come and testify
on your behalf, did you?
‘‘[The Plaintiff]: Don’t be ridiculous.
‘‘[The Defendant’s Counsel]: I’m not being ridiculous, Mr. Majewicz. It’s
you who’s claiming damages for a job that you claim that for certain you
would have gotten, yet you didn’t bring in any placement person, any repre-
sentative, or any employee of Aegon to say I would have hired that guy.
‘‘[The Plaintiff]: That’s impractical and wouldn’t happen anyway.
‘‘[The Defendant’s Counsel]: You didn’t even try, did you?
‘‘[The Plaintiff]: No company is going to commit to that.
‘‘[The Defendant’s Counsel]: You didn’t try. You didn’t subpoena a witness.
You didn’t call a witness. You didn’t put the witness on your witness list,
did you?
‘‘[The Plaintiff]: No, we did not.’’
17
In his testimony, the plaintiff stated that ‘‘there were numerous jobs
that were available to me during that period of time that I was not given
an opportunity to apply for . . . and [exhibit 70 reflects] the amount of
money that I would have lost as a result of not having those jobs.’’
18
The record confirms that, after being locked out of the corporation, the
plaintiff was unemployed for more than twenty months from January, 2010
through September, 2011.
19
Passacantano testified that he prepared the plaintiff’s personal tax
returns beginning in 1993, and continued to do so for the next two decades.
20
In his motion for articulation, the defendant stated in relevant part that
‘‘[t]he trial court did not sufficiently articulate the factual and legal basis
for concluding that [the defendant] was liable to pay ‘alimony and other
costs of [the plaintiff’s] divorce’ in the amount of $103,835. . . . The court
did not clearly identify what ‘alimony’ and/or ‘other costs of [the plaintiff’s]
divorce’ amounted to $103,835. The court appears to have accepted, in total,
the amount that [the plaintiff] sought as ‘Alimony Modification Costs’ [on
exhibit 87] based on his submission of his divorce attorney’s invoices . . . .
[The defendant] requests that the court articulate the factual and legal basis
for its finding that [the plaintiff’s] damages recoverable from [the defendant]
include ‘alimony and other costs of [the plaintiff’s] divorce,’ and identify
what costs the court was referring to.’’
21
That list of damages stated simply: ‘‘Alimony Modification Costs as of
10/21/2013 – $103,835.’’
22
The plaintiff also acknowledged that he commenced an alimony modifi-
cation proceeding in July, 2009, months before any of the transgressions at
issue in this case transpired.
23
For example, the defendant submitted into evidence Marder’s affidavit
of attorney’s fees, in which Marder averred that his fees included work on
the plaintiff’s ‘‘defense of [his former wife’s] motions for contempt, compel,
modification and contempt . . . .’’ The defendant also submitted into evi-
dence copies of Marder’s itemized billing statements for work performed on
behalf of the plaintiff in his postdissolution proceedings. Those statements
describe work on a wide variety of issues, including: ‘‘Preparation — child
support guidelines’’; ‘‘Correspondence — client re: medical insurance appli-
cation date’’; ‘‘Review document — ex-wife’s financials’’; ‘‘Research — maxi-
mum taxable earnings 2012 Social Security’’; ‘‘Pleading preparation —
objection to motion [filed by the plaintiff’s former wife to] modify’’; and
‘‘Review document — child support payment list and transmittal . . . .’’
The record contains no evidence linking such issues, and hence legal fees,
to the conduct of the defendant.
24
Larsen Chelsey Realty Co. is instructive in this regard, as it typifies this
exception. As chronicled by the Supreme Court in its decision, the defendant
was the president of the plaintiff realty company. Larsen Chelsey Realty
Co. v. Larsen, supra, 232 Conn. 484. At the behest of the chairman of the
plaintiff’s board of directors (chairman), the defendant attempted to procure
a buyer or investor for the plaintiff. Id. As the Supreme Court noted, ‘‘[o]n
February 1, [the defendant] met with Barbara Pearce, president of the com-
peting Pearce Company, to learn whether Pearce Company might be inter-
ested in buying or investing in the plaintiff. [The defendant] had been a
commercial sales agent for Pearce Company in 1983, and he had a good
relationship with the company and the Pearce family. At this meeting, Pearce
informed [the defendant] that her company was not interested in buying or
investing in the plaintiff, but she did ask whether he would be interested
in taking a position with Pearce Company. At that meeting [the defendant]
gave Pearce a list of the brokers working for the plaintiff. [The defendant]
never discussed this meeting with [the chairman]. [The defendant] again
met with Pearce on February 21, 23 and 24.
‘‘On February 27, unbeknown to [the chairman], [the defendant] told the
plaintiff’s employee brokers that the [plaintiff] was going to close, and he
encouraged them to contact Pearce for jobs. Meanwhile, [the defendant]
prepared a letter to mail to the plaintiff’s clients and business contacts. The
letter, dated and mailed on March 6, 1989, stated that the plaintiff was going
to cease independent operations and would merge with Pearce Company.
That same day, [the defendant] wrote a letter to the New Haven board of
realtors advising it that the plaintiff would be ‘closing,’ that he and two
other realtors would be ‘transferring’ to Pearce Company, and that ‘[w]e
are using the month of March to finish up all old business and to transfer
any new business to [Pearce Company].’ [The defendant] then began to
solicit agents and sign listings on behalf of Pearce Company’’ (Footnotes
omitted.) Id., 485–86. The defendant later ‘‘spoke to a representative of the
owner of the building that leased space to the plaintiff and told her that
the plaintiff was closing and moving that day.’’ Id., 487. On those facts, our
Supreme Court concluded that the plaintiff presented a ‘‘potentially viable
cause of action under CUTPA’’ against the defendant, who ‘‘accepted a job
with a competing [entity] and then, acting as a competitor, took actions
that harmed the plaintiff.’’ Id., 493–94.
25
Accordingly, the tortious conduct perpetrated against the plaintiff by
the defendant, as outlined in counts two through six of the operative com-
plaint, has little bearing on the issue of whether this exception applies.
Those issues pertain to an intracorporate conflict to which CUTPA does
not apply. See Metcoff v. Lebovics, supra, 123 Conn. App. 519 (‘‘[i]t is well
settled that purely intracorporate conflicts do not constitute CUTPA vio-
lations’’).
26
The plaintiff testified at trial that he prepared a document detailing the
defendant’s transactions with respect to Kasica Enterprises, LLC, which he
furnished to the Internal Revenue Service approximately one month before
the defendant moved to dissolve the corporation because ‘‘I knew that he
was . . . defrauding the Internal Revenue Service.’’
27
At oral argument before this court, the plaintiff’s counsel stated that
the trial court, in its memorandum of decision, found that the wrongful
detention by the defendant commenced on November 1, 2009. When asked
exactly how much money was due to the plaintiff on that date, counsel
candidly replied, ‘‘I don’t believe that there was a specific amount that was
due at that time.’’