Kelly v. Kurtz

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DORRANCE T. KELLY v. MARSHALL D.
KURTZ ET AL.
(AC 41366)
(AC 41365)
Keller, Moll and Devlin, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for, inter alia,
breach of contract relating to the buyout of the plaintiff’s oral surgery
practice by the defendant K. In connection therewith, the parties exe-
cuted three documents, including a purchase and sale agreement, an
operating agreement and a supplementary agreement. Pursuant to those
agreements, K paid the plaintiff two installments and subsequently
became the manager of the practice. Pursuant to the supplementary
agreement, the plaintiff could work a part-time schedule of his choosing
and retire at the time of his choosing, provided that he retired by the
age of eighty. The relationship between the plaintiff and K became
strained, and K hired a new associate without the consent of the plaintiff
and told the plaintiff he wanted him to retire in six weeks. Approximately
one month after K paid the final installment due under the purchase
and sale agreement, he had the locks on the doors of the practice
changed. The plaintiff, believing he had been terminated, began seeing
patients in other towns. The defendants ordered a street sign for the
practice that included the plaintiff’s name and kept the plaintiff’s name
on the practice’s website and referral cards for approximately six months
after the plaintiff left the practice. The plaintiff filed a nineteen count
revised complaint in which he alleged claims for, inter alia, breach of
contract pertaining to all three agreements, breach of the implied cove-
nant of good faith and fair dealing relating to all three agreements,
invasion of privacy, tortious interference with business expectancies,
violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-
110a et seq.), and unjust enrichment. The defendants filed an eleven
count counterclaim, alleging, inter alia, that the plaintiff had breached
the operating agreement and the lease agreement between the plaintiff
and the practice. After the jury returned a verdict in favor of the plaintiff
on nine of his ten claims against the defendants and found in favor
of the defendants on the remaining counts of the counterclaim, the
defendants filed a motion to set aside the verdict and to dismiss the
plaintiff’s claims of breach of the operating agreement and breach of
the implied covenant of good faith and fair dealing in that agreement.
The trial court denied in part and granted in part the defendants’ motion
to set aside, granted their motion to dismiss and rendered judgment in
favor of the plaintiff. On the separate appeals to this court by the plaintiff
and the defendants, held:
1. The trial court did not abuse its discretion in denying the defendants’
motion to set aside the jury’s verdict on the counts alleging breach of
the supplementary agreement and breach of the implied covenant of
good faith and fair dealing:
a. The defendants’ claim that the evidence was insufficient to support
the jury’s finding of a breach of the supplementary agreement because
the evidence was insufficient to prove that the plaintiff was terminated
or that he was prevented from working a schedule of his choosing was
unavailing: the trial court, in rejecting the defendants’ claim, determined
that the jury reasonably could have found on the basis of the evidence
presented that the defendants terminated the plaintiff or prevented him
from working a schedule of his choosing, and that notwithstanding the
lack of a formal, express statement of termination, the jury reasonably
could have found that certain of the defendants’ conduct constituted a
breach of their obligations to continue to employ the plaintiff and pre-
vented him from receiving the benefits he was entitled to under the
agreement; moreover, the court properly declined the defendants’ invita-
tion to revisit the evidence at trial and to substitute its judgment for
that of the jury, and there was ample evidence introduced at trial on
which the jury could have based a finding that the plaintiff was denied
the right to work a schedule of his choosing.
b. The defendants could not prevail on their claim that the verdict was
inconsistent because the jury awarded $2,000,000 for breach of the
supplementary agreement and $150,000 for breach of the implied cove-
nant of good faith and fair dealing in that agreement, when both claims
were based on identical evidence; the trial court found that even though
the plaintiff based both causes of action on similar factual allegations,
the plaintiff pleaded two separate causes of action and could recover
two different jury awards, and, thus, that the jury could have found, as
a matter of law, that the plaintiff suffered two separate legal harms
from the same facts, as the jury’s finding of breach of contract did not
require a finding of any improper motive by the defendants and did not
necessarily include damages arising from ill intent, and, therefore, the
court properly fulfilled its duty to harmonize the jury’s verdict.
2. The trial court did not abuse its discretion in setting aside the jury’s
verdict on the plaintiff’s claim that the defendants invaded his privacy
by misappropriating his name after he was terminated; even if the defen-
dants’ use of the plaintiff’s name was wrongful, the plaintiff failed to
prove that he suffered any damages as a result of the defendants’ use
of his name, and the plaintiff presented no evidence of the commercial
benefit to the defendants from the use of his name.
3. The trial court did not abuse its discretion in setting aside the jury’s
verdict and award of damages on the plaintiff’s claim of tortious interfer-
ence with his business expectancies; the plaintiff failed to prove that
he suffered an actual loss as a result of the defendants’ alleged interfer-
ence with his business expectancies, and because the plaintiff already
had recovered for losses he sustained as a result of his wrongful termina-
tion, the trial court properly ensured that he did not recover twice for
the same loss.
4. The trial court did not abuse its discretion in setting aside the jury’s
verdict on the plaintiff’s CUTPA claim, the plaintiff having failed to
prove that he suffered any ascertainable loss as a result of the alleged
CUTPA violations.
5. The trial court properly set aside the jury’s verdict on the plaintiff’s claim
of unjust enrichment; the plaintiff had already recovered for wrongful
termination under his claim that the defendants breached the supplemen-
tary agreement and, therefore, could not recover again under an unjust
enrichment theory.
6. The trial court properly dismissed the plaintiff’s claims of breach of the
operating agreement and breach of the implied covenant of good faith
and fair dealing in that agreement, as the plaintiff lacked standing to
bring those claims; the loss that the plaintiff alleged was derivate of a loss
to the medical practice, and he failed to prove that he was specifically
and injuriously affected by K’s failure to secure his approval of the
hiring of the new associate.
Argued May 23—officially released October 15, 2019
Procedural History
Action for, inter alia, breach of contract relating to
the sale of the plaintiff’s oral surgery practice to the
named defendant, and for other relief, brought to the
Superior Court in the judicial district of Danbury, where
the defendants filed a counterclaim; subsequently, the
plaintiff withdrew four counts of the complaint and the
defendants withdrew counts one through seven of their
counterclaim; thereafter, the matter was tried to the
jury before Truglia, J.; verdict in part for the plaintiff
on the complaint and for the defendants on their coun-
terclaim; subsequently, the trial court granted the defen-
dants’ motion to dismiss the plaintiff’s claims of breach
of the operating agreement and breach of the implied
covenant of good faith and fair dealing in the operating
agreement, and granted in part the defendants’ motion
to set aside the verdict for the plaintiff and rendered
judgment on the complaint thereon, from which the
plaintiff and the defendants filed separate appeals with
this court, which consolidated the appeals. Affirmed.
Dana M. Hrelic, with whom were Wesley W. Horton
and, on the brief, Robert Flynn, for the appellants-appel-
lees (defendants).
Kara A. Lynch, pro hac vice, with whom were Nathan
J. Buchock and, on the brief, Brian E. Spears, for the
appellee-appellant (plaintiff).
Opinion
DEVLIN, J. In this case arising from the buyout of
an oral surgery practice, the plaintiff, Dorrance T. Kelly,
DDS, and the defendants, Marshall D. Kurtz, DMD, Mar-
shall D. Kurtz, DMD, PC, and Danbury Oral and Maxillo-
facial Surgery Associates, LLC (DOMSA), appeal from
the judgment of the trial court rendered, following a
jury trial, in favor of the plaintiff, in the amount of
$2,150,000. To establish the terms of the buyout, the
parties executed three documents: a purchase and sale
agreement, an operating agreement, and a supplemen-
tary agreement.1 On appeal, the defendants claim, in
AC 41366, that the trial court erred in denying their
motion to set aside the jury’s verdict on the plaintiff’s
claims of breach of the supplementary agreement and
breach of the implied covenant of good faith and fair
dealing in the supplementary agreement on the grounds
that (1) the evidence presented at trial was insufficient
to sustain the jury’s finding of breach of the supplemen-
tary agreement, and (2) the jury’s awards of damages
on the plaintiff’s claims of breach of the supplementary
agreement and breach of the implied covenant of good
faith and fair dealing in the supplementary agreement
were inconsistent. The plaintiff claims, in AC 41365,
that the trial court erred in (1) granting the defendants’
motion to set aside the jury’s verdict on his claims of
invasion of privacy by misappropriation of his name,
tortious interference with his business expectancies,
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statues § 42-110a et seq., and unjust
enrichment; and (2) dismissing his claim of breach of
the operating agreement and breach of the implied cove-
nant of good faith and fair dealing in the operating
agreement on the ground that he lacked standing to
bring those claims. We affirm the judgment of the
trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
disposition of these appeals. The plaintiff and Kurtz are
oral surgeons, who began practicing together in 2004.
From May, 2004 to July, 2008, Kurtz worked as a salaried
employee for the plaintiff, who had been practicing
since the early 1970s and had built a successful practice.
On or about July 1, 2006, Kurtz entered into a ‘‘Purchase
and Sale Agreement of Personal Goodwill of Dorrance
T. Kelly, DDS and Assets of Dorrance T. Kelly, DDS,
Oral Surgery, P.C.’’ The purchase and sale agreement
provided that the plaintiff would sell his practice to
Kurtz for $1,600,000, to be paid to the plaintiff in two
equal installments; the first installment to be paid on
July 17, 2006, and the second on June 30, 2009. The
agreement further provided that the existing practice
would continue to operate through a newly formed
limited liability company known as DOMSA.
Also on July 1, 2006, the parties entered into an
‘‘Amended and Restated Operating Agreement of Dan-
bury Oral & Maxillofacial Surgery Associates, LLC’’
(operating agreement). The operating agreement, which
was signed by Dorrance T. Kelly, DDS, Oral Surgery,
P.C. and Marshall D. Kurtz, DMD, P.C., provided that
each member professional corporation would hold a 50
percent ownership interest in DOMSA, with the plaintiff
initially acting as the manager with full authority for
day-to-day management and control of the practice.
After Kurtz paid the second installment of the purchase
price, Kurtz would become the manager of DOMSA and
assume full authority for its management, control and
direction. The operating agreement further provided:
‘‘In instances where a [m]ember is a [p]rofessional [c]or-
poration, a limited liability company, a [l]imited liability
[m]embership or other entity, the term ‘[m]ember’ shall
include for all purposes all stockholders, members,
[m]embers or other owners thereof, of whatever
nature.’’ It required that the hiring of additional staff,
including associates, be made by an affirmative vote of
all members. The operating agreement also provided
that the plaintiff would retire on June 30, 2009, upon
his receipt from Kurtz of the second installment of the
purchase price of the practice, and that upon retire-
ment, he ‘‘shall have the right to . . . continue [work-
ing] as an associate of [DOMSA] until the age of [eighty]
at a rate of compensation of fifty [percent] (50%) of his
net collections upon such other terms and conditions as
the parties hereto shall agree.’’ The operating agreement
provided that ‘‘[t]he [m]anager shall direct, manage and
control the business of [DOMSA] to the best of [his]
ability. Except for situations in which the approval of
the members is expressly required by this Operating
Agreement or by nonwaivable provisions of applicable
law, the [m]anager shall have the full and complete
authority, power and discretion to manage and control
the business, affairs and properties of [DOMSA], to
make all decisions regarding those matters and to per-
form any and all other acts or activities customary or
incident to the management of [DOMSA’s] business.’’
On June 30, 2009, the parties, individually, and as
members of their respective professional corporations,
entered into a ‘‘Supplementary Agreement,’’ which mod-
ified certain provisions of the purchase and sale agree-
ment and the operating agreement. The supplementary
agreement modified the plaintiff’s obligations with
respect to working days and on call responsibilities,
and provided that he would work a reduced part-time
schedule of his choosing. It further modified the require-
ment that the plaintiff retire on June 30, 2009, and pro-
vided that he could retire at a time of his choosing, but
maintained that he would retire and ‘‘discontinue the
practice of dentistry’’ when he reached the age of eighty,
and that the plaintiff would continue to own a one
percent interest in DOMSA until Kurtz paid the full
purchase price.
Over time, the plaintiff and Kurtz’s relationship
became strained. At some point in the latter part of
2009, the plaintiff threatened to leave DOMSA if Kurtz
did not pay him 65 percent of his net collections. Kurtz
acquiesced and agreed to pay the plaintiff the 65 percent
that he demanded, but reverted to paying him 50 percent
in December, 2012, in accordance with the operating
agreement.
In late 2012, and continuing into early 2013, the
Department of Social Services conducted an audit of
DOMSA’s Medicaid billing records and determined that
DOMSA had received overpayments of approximately
$212,000 for Medicaid patients who had been treated
between 2008 and 2010. To reimburse the Department
of Social Services for the overpayment received by
DOMSA, Kurtz agreed, without informing the plaintiff,
to continue to treat Medicaid patients without compen-
sation until the full amount of the overpayment was
satisfied. This agreement, however, did not affect the
plaintiff, who continued to treat Medicaid patients and
received 50 percent of the amount that he billed for
his patients.
At some point prior to the summer of 2013, the plain-
tiff and Kurtz discussed hiring an associate. To that
end, Kurtz, as the manager of DOMSA, placed an adver-
tisement for that position and began speaking with
applicants. Although the operating agreement expressly
provided that ‘‘an affirmative vote of all [m]embers’’ was
required for the ‘‘[h]iring of additional staff inclusive
of [a]ssociates,’’ Kurtz and the plaintiff did not discuss
the hiring process as it progressed.
On August 1, 2013, the plaintiff and Kurtz had a meet-
ing, which Kurtz secretly recorded, in the plaintiff’s
office. At that meeting, Kurtz told the plaintiff that he
had hired a new associate, Daniel Traub, who would
begin working at DOMSA on October 1, 2013. The plain-
tiff expressed his displeasure of Kurtz’ hiring of Traub
without the plaintiff’s consent. Kurtz told the plaintiff
that, by the time Traub started working in October, he
would own 100 percent of DOMSA, and could manage
it ‘‘as he saw fit.’’ He told the plaintiff that he would
have ‘‘the right to change anything that I want in the
contracts . . . I can amend anything’’ and the right to
‘‘make the hours be whatever I want . . . make the
staff do whatever I want, and the office space be what-
ever I want, and the office open and close.’’ Kurtz told
the plaintiff that he wanted him to retire before Traub
commenced his employment at DOMSA, and suggested
September 15, 2013, as his retirement date. The plaintiff
told Kurtz that he did not want to retire and that he
had the right to work at DOMSA for as long as he wished
until he reached the age of eighty. Later that day, in an
unrecorded conversation, Kurtz told the plaintiff that
his last day would be September 17, 2013.
The plaintiff took a medical leave from DOMSA from
August 2 to August 20, 2013. On August 15, 2013, Kurtz
paid the final installment due under the purchase and
sale agreement. When the plaintiff returned from medi-
cal leave on August 21, 2013, he instructed the staff not
to schedule any new patients for him beyond September
12, 2013. On August 22, 2013, Kurtz’s attorney, Steven
Smart, informed the plaintiff’s attorney, Kara Lynch,
that the plaintiff had not been terminated or forced to
retire, and that he could continue to work at DOMSA
as an associate.
When the plaintiff arrived at the office on September
17, 2013, he was told that he had no patients on his
schedule and that Kurtz would direct patients to him
as he saw fit. The plaintiff left the office without seeing
any patients that day.
The plaintiff arrived at the office the next day to find
that the locks on the doors of the practice had been
changed. He confronted Kurtz in the office parking lot,
where they argued about the breakdown of their profes-
sional and personal relationship. Believing that he had
been terminated by Kurtz, the plaintiff did not return
to work at DOMSA after this argument.
On September 21, 2013, Lynch sent an e-mail to Smart
indicating that the plaintiff had been terminated by
Kurtz. Smart responded that the plaintiff had not been
terminated or forced to retire, and that the plaintiff
could continue to work at DOMSA and receive his pre-
viously agreed upon 50 percent of fees that he gen-
erated.
Believing that he had been terminated by Kurtz, the
plaintiff began seeing patients in Norwalk and West
Hartford. Despite the plaintiff’s absence from DOMSA,
Kurtz ordered a new street sign for DOMSA that
included the plaintiff’s name. Kurtz also did not remove
the plaintiff’s name from DOMSA’s website or patient
referral cards for approximately six months after he
left the practice.
The plaintiff thereafter commenced this action, and
by way of a nineteen count revised complaint, alleged
the following: four counts of breach of contract (pur-
chase and sale agreement, operating agreement and
supplementary agreement); three counts of breach of
the implied covenant of good faith and fair dealing; one
count of successor liability; one count of violation of the
Connecticut Fair Employment Practices Act (CFEPA),
General Statutes § 46a-51 et seq.; one count of breach
of fiduciary duty; one count of failure to pay wages to
an employee in violation of General Statutes § 31-71b;
one count of invasion of privacy by misappropriation of
name; one count of tortious interference with business
expectancies; one count of violation of CUTPA; one
count of unjust enrichment; one count of slander; one
count of intentional infliction of emotional distress; one
count of negligent infliction of emotional distress; and
one count seeking a declaratory judgment that the plain-
tiff is no longer bound by the restrictive covenant con-
tained in the operating agreement.
The defendants filed an answer, one special defense,
and an eleven count counterclaim alleging, inter alia,
that the plaintiff had breached the operating agreement
and the lease agreement between the plaintiff, as the
owner of the building in which the Danbury office of
DOMSA is located, and DOMSA.
Following several days of trial, the court submitted
to the jury interrogatories on ten distinct claims by the
plaintiff against the defendants: breach of the operating
agreement and breach of the implied covenant of good
faith and fair dealing in that agreement; breach of the
supplementary agreement and breach of the implied
covenant of good faith and fair dealing in that agree-
ment; violation of CFEPA; breach of fiduciary duty;
invasion of privacy by appropriation of name; tortious
interference with business expectancies; violation of
CUTPA; and unjust enrichment.2 The court also submit-
ted to the jury interrogatories on the defendants’ claims
for damages related to the plaintiff’s alleged violation
of the lease agreement: unjust enrichment; breach of
the implied covenant of good faith and fair dealing in
the lease agreement; and violation of CUTPA.3 The jury
returned a verdict in favor of the plaintiff on nine of
his ten claims against the defendants, awarding him
damages on seven of those ten claims, for a total award
of $3,150,000 in compensatory damages.4 The jury also
found that the plaintiff was entitled to punitive damages
on five of those seven claims. The jury found in favor
of the defendants on the remaining counts of their coun-
terclaim, awarding damages in the amount of $175,000.
The defendants thereafter filed a motion to set aside
the jury’s verdict on the complaint and a motion to
dismiss the plaintiff’s claims of breach of the operating
agreement and breach of the implied covenant of good
faith and fair dealing in that agreement. The trial court
denied in part and granted in part the defendants’
motion to set aside, and granted their motion to dismiss.
The court rendered judgment in favor of the plaintiff
in the amount of $2,150,000, and these appeals followed.
Additional facts will be set forth as necessary.
Because the bulk of the claims raised in these appeals
arises from the trial court’s rulings on the defendants’
motion to set aside the jury’s verdict, we begin by setting
forth the well settled standard of review governing the
court’s judgment on those claims. ‘‘The trial court pos-
sesses inherent power to set aside a jury verdict which,
in the court’s opinion, is against the law or the evidence
. . . . [The trial court] should not set aside a verdict
where it is apparent that there was some evidence upon
which the jury might reasonably reach [its] conclusion,
and should not refuse to set it aside where the manifest
injustice of the verdict is so plain and palpable as clearly
to denote that some mistake was made by the jury in
the application of legal principles . . . . Ultimately,
[t]he decision to set aside a verdict entails the exercise
of a broad legal discretion . . . that, in the absence of
clear abuse, we shall not disturb.’’ (Internal quotation
marks omitted.) Kumah v. Brown, 160 Conn. App. 798,
803, 126 A.3d 598, cert. denied, 320 Conn. 908, 128 A.3d
953 (2015). With these principles in mind, we address
the parties’ claims in turn.
I
AC 41366
We begin with the defendants’ appeal challenging the
jury’s verdict in favor of the plaintiff and the trial court’s
denial of their motion to set aside the verdict. In
response to the interrogatories submitted, the jury
found that the defendants breached the supplementary
agreement and breached the implied covenant of good
faith and fair dealing in the supplementary agreement,
by wrongfully terminating the plaintiff before he
reached the age of eighty and by failing to allow the
plaintiff to work a schedule of his choosing. The jury
awarded the plaintiff $2,000,000 in compensatory dam-
ages for breach of the supplementary agreement, and
$150,000 in compensatory damages for breach of the
implied covenant of good faith and fair dealing in the
supplementary agreement.5 The trial court denied the
defendants’ motion to set aside these portions of the
jury’s verdict.
A
The defendants first argue that the evidence was
insufficient to support the jury’s finding of breach of
the supplementary agreement because the plaintiff was
not terminated from his employment at DOMSA or pre-
vented from working a schedule of his choosing. We
are not persuaded.6
‘‘[I]t is not the function of this court to sit as the
seventh juror when we review the sufficiency of the
evidence . . . rather, we must determine, in the light
most favorable to sustaining the verdict, whether the
totality of the evidence, including reasonable inferences
therefrom, supports the jury’s verdict . . . . In making
this determination, [t]he evidence must be given the
most favorable construction in support of the verdict
of which it is reasonably capable. . . . In other words,
[i]f the jury could reasonably have reached its conclu-
sion, the verdict must stand, even if this court disagrees
with it. . . .
‘‘We apply this familiar and deferential scope of
review, however, in light of the equally familiar principle
that the plaintiff must produce sufficient evidence to
remove the jury’s function of examining inferences and
finding facts from the realm of speculation. . . . A
motion to set aside the verdict should be granted if the
jury reasonably and legally could not have reached the
determination that they did in fact reach.’’ (Citations
omitted; internal quotation marks omitted.) Carrol v.
Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119(2003).
In the context of our ‘‘review of a motion to set aside
the verdict . . . given the deference our standard of
review requires to the trial court’s decision, it is espe-
cially important to know what evidence before the jury
justified the verdict in the court’s mind.’’ Levine v. 418
Meadow Street Associates, LLC, 163 Conn. App. 701,
715, 137 A.3d 88 (2016). ‘‘[T]he trial court is uniquely
situated to entertain a motion to set aside a verdict as
against the weight of the evidence because, unlike an
appellate court, the trial [court] has had the same oppor-
tunity as the jury to view the witnesses, to assess their
credibility and to determine the weight that should be
given to their evidence. . . . Indeed, we have observed
that, [i]n passing upon a motion to set aside a verdict,
the trial judge must do just what every juror ought to
do in arriving at a verdict. . . . [T]he trial judge can
gauge the tenor of the trial, as we, on the written record
cannot, and can detect those factors, if any, that could
improperly have influenced the jury.’’ (Internal quota-
tion marks omitted.) State v. O’Donnell, 174 Conn. App.
675, 696–97, 166 A.3d 646, cert. denied, 327 Conn. 956,
172 A.3d 205 (2017). ‘‘The concurrence of the judgments
of the [trial] judge and the jury . . . is a powerful argu-
ment for upholding the verdict.’’ (Internal quotation
marks omitted.) Doe v. Hartford Roman Catholic Dioc-
esan Corp., 317 Conn. 357, 371, 119 A.3d 462 (2015).
In their motion to set aside the verdict, the defendants
raised the same arguments to the trial court that they
advance now—that the evidence was insufficient to
prove that the plaintiff was terminated or that he was
prevented from working a schedule of his own choos-
ing. Following a thorough and well reasoned analysis
of the evidence presented to the jury, and the law per-
taining to its examination of the sufficiency of that
evidence, the court rejected the defendants’ arguments.
Specifically, the court explained that ‘‘[t]he jury reason-
ably could have found that the defendants terminated
[the plaintiff] and/or prevented him from working a
schedule of his choosing based on the following evi-
dence: (1) the August 1, 2013 recorded conversation,
including Kurtz’ request that [the plaintiff] leave by Sep-
tember 17, 2013, so that there could be some ‘separation’
between [the plaintiff’s] departure and Traub’s first day
on October 1, 2013; (2) Kurtz’ statements during the
August 1, 2013 conversation that he could change the
office hours and other working conditions to be ‘what-
ever I want’; (3) locking [the plaintiff] out of the office
on September 18, 2013; (4) Traub’s testimony that Kurtz
told him that he had asked [the plaintiff] to retire and
that [the plaintiff] did not take it well; (5) testimony of
office staff that Kurtz told them, shortly after September
17, 2013, that [the plaintiff] would not be returning to
the office; and (6) evidence that at least some of the
office staff believed that [the plaintiff] would not be
returning to practice with DOMSA.’’ The court deter-
mined that ‘‘notwithstanding the lack of a formal,
express statement of termination and the defendants’
later offer of continued employment, the jur[y] could
reasonably have found that the result of the defendants’
conduct between August 1, 2013 and September 18,
2013, was a breach of the defendants’ obligations to
continue to employ [the plaintiff] and prevented him
from receiving benefits he was entitled to under the
agreement.’’
The court explained that the defendants’ claim of
insufficiency was not based on disputed facts, but,
instead, that the defendants urged an alternative inter-
pretation of the evidence presented to the jury. We
agree. The defendants asked the trial court in their
motion to set aside the jury’s verdict, and ask this court
now, to examine the evidence introduced at trial in a
light favorable to them, or to emphasize or give more
weight to evidence that supports their position. It was
not the role of the trial court, nor is it the role of
this court, to do so. The court properly declined the
defendants’ invitation to revisit the evidence at trial and
substitute its judgment for that of the jury.
As to their argument that the evidence at trial was
insufficient to prove that the defendants denied the
plaintiff the ability to work a schedule of his own choos-
ing,7 the defendants again reiterate claims of insuffi-
ciency that they raised before the trial court in their
motion to set aside the verdict, namely, that the provi-
sion of the supplementary agreement affording the
plaintiff the right to work a schedule of his own choos-
ing applied only when he was a member of DOMSA,
not when he became an employee of DOMSA, and that
the plaintiff failed to prove that he was denied that
right. The court rejected that notion, explaining that it
could not ‘‘say as a matter of law that (1) this provision
of the supplementary agreement is unambiguous and
that (2) the jury, therefore, could not possibly have
found that the language allowing [the plaintiff] to work
a schedule of his choosing applied only to him as a
member of DOMSA.’’ The court concluded: ‘‘If the jurors
did believe it applied to him as an employee, there was
sufficient evidence to find that the defendants failed to
allow him to work a schedule of his own choosing. The
jury reasonably could have found, for example, that
Kurtz’ reservation of the right to assign patients to [the
plaintiff] and other conditions placed on the offer to
return to work at DOMSA did not comply with the
defendants’ contractual obligations to allow [the plain-
tiff] to continue to work until eighty years of age or
to work a schedule of his own choosing.’’ Moreover,
evidence was presented that Kurtz told the plaintiff that
he would direct patients to him as ‘‘he saw fit,’’ the
plaintiff was locked out of the computerized scheduling
system of DOMSA, and the plaintiff was not given a
key to the office after the locks were changed. We thus
agree that there was ample evidence introduced at trial
on which the jury could have based a finding that the
plaintiff was denied the right to work a schedule of his
own choosing.
B
The defendants also argue that the jury’s verdict was
inconsistent because the jury awarded $2,000,000 for
breach of the supplementary agreement and $150,000
for breach of the implied covenant of good faith and fair
dealing in that agreement, and the damages awarded
on those claims should have been the same because
they were based upon identical evidence. We disagree.
‘‘The role of an appellate court where an appellant
seeks a judgment contrary to a general verdict on the
basis of the jury’s allegedly inconsistent answers to
. . . interrogatories is extremely limited. . . . To jus-
tify the entry of a judgment contrary to a general verdict
upon the basis of answers to interrogatories, those
answers must be such in themselves as conclusively to
show that as [a] matter of law judgment could only be
rendered for the party against whom the general verdict
was found; they must negative every reasonable hypoth-
esis as to the situation provable under the issues made
by the pleadings; and in determining that, the court may
consider only the issues framed by the pleadings, the
general verdict and the interrogatories, with the
answers made to them, without resort to the evidence
offered at the trial. . . . When a claim is made that the
jury’s answers to interrogatories in returning a verdict
are inconsistent, the court has the duty to attempt to
harmonize the answers.’’ (Emphasis omitted; internal
quotation marks omitted.) Kumah v. Brown, supra, 160
Conn. App. 803–804.
In addressing this claim in the defendants’ motion to
set aside the verdict, the trial court held: ‘‘Breach of
contract and breach of the covenant of good faith and
fair dealing are separate causes of action and the jury
could, as a matter of law, find that [the plaintiff] suffered
two separate legal harms from the same facts. . . . The
jury could have found on the facts presented at trial
that the defendants breached the supplementary agree-
ment in the ways alleged, and did so with dishonest or
malicious intent. . . . The jur[y] could have found that
[the plaintiff], on the same facts presented, suffered
two distinct legal harms and voted to compensate him
separately for each harm.’’
The court acknowledged the validity of the defen-
dants’ argument that ‘‘the same facts, arising from the
same breach of contract, should not give rise to two
different awards,’’ but noted that ‘‘the counts . . . are
not identical because [the plaintiff] has alleged two
separate causes of action which require two separate
sets of elements to be proven.’’8 The court explained:
‘‘While some of the factual allegations overlap between
both counts, [the plaintiff’s] allegations regarding the
breach of the covenant of good faith and fair dealing
in the supplementary agreement, read broadly and real-
istically . . . also allege that Kurtz’ alleged breaches
of contract were done in bad faith. Moreover, the court
advised the jury on the difference between both causes
of action, including that the breach of the implied cove-
nant of good faith and fair dealing in the supplementary
agreement require that the jury make a finding of bad
faith, in addition to finding a breach of contract, to find
in favor of [the plaintiff]. . . . Thus, even though [the
plaintiff] based both causes of action on similar factual
allegations, [the plaintiff] pleaded two different causes
of action and could therefore recover two different jury
awards—one for the breaches of contract themselves,
and one for engaging in bad faith—which would not
be inconsistent with each other.’’
The court further explained: ‘‘[T]here is sufficient
evidence upon which the jury reasonably could have
found that the defendants breached the contract and
did so with improper intentions. Evidence upon which
the jur[y] could have based each of these findings
included: the content of the two August 1, 2013 office
meetings; hiring the new associate without [the plain-
tiff’s] consent; the lock out with instructions to staff
not to give [the plaintiff] a key; the goodbye card sent
by the office staff to [the plaintiff] on September 17,
2013; the argument in the parking lot on September 18,
2013, and the direction to [the plaintiff] that he remove
all of his personal belongings from his personal office
the following weekend or they would be left ‘in the
parking lot’; and Kurtz’ statement to the staff and others
that [the plaintiff] was not coming back to practice at
DOMSA. The court assumes that the jur[y] listened to
the evidence, listened carefully to the charge, and cor-
rectly applied the law to the facts as they found them.
The court assumes that the jur[y] rendered two separate
awards for two separate legal harms—$2,000,000 for
the breach of contract and $150,000 for the separate
and distinct legal harm of breaching the contract with
evil intent.’’
It is well settled that, ‘‘[a]lthough the covenant of
good faith and fair dealing is implied in every contract,
a plaintiff cannot state a claim for breach of the implied
covenant simply by alleging a breach of the contract,
in and of itself. . . . Instead, to state a legally sufficient
claim for breach of the implied covenant sounding in
contract, the plaintiff must allege that the defendant
acted in bad faith.’’ (Citation omitted.) Blumberg Asso-
ciates Worldwide, Inc. v. Brown & Brown of Connecti-
cut, Inc., 132 Conn. App. 85, 99, 30 A.3d 38 (2011), aff’d,
311 Conn. 123, 84 A.3d 840 (2014).
Here, as the trial court aptly noted, the factual allega-
tions of the two claims associated with the supplemen-
tary agreement certainly overlapped, but they were not
identical. The jury’s finding of breach of contract did
not require a finding of any improper motive by the
defendants and thus did not necessarily include dam-
ages arising from ill intent.9 Because the trial court
properly fulfilled its duty to harmonize the jury’s ver-
dict, we cannot conclude that it abused its discretion
in denying the defendants’ motion to set aside the jury’s
verdict on the counts alleging breach of the supplemen-
tary agreement and breach of the implied covenant of
good faith and fair dealing in that agreement.
II
AC 41365
We now turn to the plaintiff’s challenges to the trial
court’s judgment setting aside the jury’s verdict on his
claims of invasion of privacy, tortious interference with
business expectancies, violation of CUTPA, and unjust
enrichment.10 Because the court set aside certain por-
tions of the jury’s verdict on the ground that the plaintiff
failed to prove damages, we begin by setting forth the
following pertinent general principles.
‘‘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. . . .
[Although] there are circumstances in which proof of
damages may be difficult and . . . such difficulty is,
in itself, an insufficient reason for refusing an award
once the right to damages has been established . . .
the court must have evidence by which it can calculate
the damages, which is not merely subjective or specula-
tive . . . but which allows for some objective ascer-
tainment of the amount. . . . This certainly does not
mean that mathematical exactitude is a precondition
to an award of damages, but we do require that the
evidence, with such certainty as the nature of the partic-
ular case may permit, lay a foundation [that] will enable
the trier to make a fair and reasonable estimate.’’ (Cita-
tion omitted; internal quotation marks omitted.) Ameri-
can Diamond Exchange, Inc. v. Alpert, 302 Conn. 494,
510–11, 28 A.3d 976 (2011).
‘‘Evidence is considered speculative when there is
no documentation or detail in support of it and when the
party relies on subjective opinion.’’ (Internal quotation
marks omitted.) Id., 511. ‘‘At a minimum, opinions or
estimates of lost profits must be based on objective
facts, figures, or data from which the amount of lost
profits may be ascertained. . . . While the modern ten-
dency is toward greater liberality in the requirements
. . . [for proving lost profits] it is the unvarying rule
that evidence of such certainty as the nature of the
case permits should be produced.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 512.
With the foregoing in mind, and guided by the afore-
mentioned principle that ‘‘[t]he decision to set aside a
verdict entails the exercise of a broad legal discretion
. . . that, in the absence of clear abuse, we shall not
disturb’’; (internal quotation marks omitted) Kumah v.
Brown, supra, 160 Conn. App. 803; we address each of
the plaintiff’s claims in turn.
A
The plaintiff first claims that the trial court erred in
setting aside the jury’s verdict and award of damages in
the amount of $300,000 on his claim that the defendants
invaded his privacy by misappropriating his name after
he was terminated from DOMSA. The plaintiff claims
that the trial court erred in finding that the sale of his
‘‘personal good will’’ to the defendants included the
right to use his name, and that even if the defendants
did not have the right to use the plaintiff’s name, the
plaintiff failed to prove that he suffered any damages
as a result of said use. We need not address the issue
of whether ‘‘personal good will’’ included the right to
use the plaintiff’s name because, even if the defendants’
use of the plaintiff’s name was wrongful, we agree with
the trial court that the plaintiff failed to prove that he
suffered any damages as a result of the defendants’ use
of his name.11
On this claim, the court instructed the jury as follows:
‘‘To recover for this cause of action, the plaintiff must
prove that his name was used by the defendants without
his consent for the purpose of appropriating to their
benefit the commercial value of the plaintiff’s name.
The damages for such misappropriation are measured
by the commercial benefit obtained by the defendants
or by the harm to the plaintiff.’’ The plaintiff claims that
the trial court disregarded evidence that he presented
in support of his claim that the defendants commercially
benefitted from the use of his name, such as the facts
that several dentists confirmed that they used the refer-
ral cards after the plaintiff left DOMSA to refer patients
to him, and that DOMSA’s employees testified that they
received these cards and calls requesting appointments
with the plaintiff, but that they were scheduled with
Kurtz.
Contrary to the plaintiff’s argument, the trial court
did, in fact, consider the evidence introduced by the
plaintiff. In setting aside the jury’s verdict on this claim,
the trial court noted that the plaintiff presented evi-
dence that after he left DOMSA, the defendants ordered
a new sign for the Danbury office that listed his name
and that that sign was displayed for several months.
The defendants did not remove the plaintiff’s name from
DOMSA’s website or stop using patient referral cards
listing the plaintiff until several months after the plain-
tiff left the practice. In the spring of 2014, the defendants
purchased an advertisement that included the plaintiff’s
name in a high school flyer.
The court nevertheless set aside the jury’s verdict on
the plaintiff’s claim of invasion of privacy by misappro-
priation of his name because ‘‘[the plaintiff] presented
no evidence at trial of a single patient who came to
DOMSA after [the plaintiff]’s departure as a result of
the street sign, patient referral cards, website, or high
school promotional calendar.’’ The court noted that it
had instructed the jury that ‘‘damages for this claim are
measured by the commercial benefit obtained by the
defendants or by the harm to [the plaintiff],’’ and rea-
soned that ‘‘[s]ince [the plaintiff] presented no proof
of a commercial benefit obtained by the defendants
through the use of [the plaintiff]’s name after he was
no longer a member of DOMSA, the jury could not
have found that the defendants misappropriated [the
plaintiff]’s name.’’ The trial court further opined that
‘‘an award under this claim of damages would also be
a duplication of lost earnings, which the jury awarded
to [the plaintiff] through its verdict on the claims of
violations of the supplementary agreement.’’
Despite the plaintiff’s assertion that the defendants
commercially benefitted from the use of his name, he
presented no evidence of the commercial value of that
benefit. The plaintiff presented no evidence of which
patients or how many patients the defendants gained,
or how the defendants benefitted commercially, as a
result of their use of his name. Because there was no
evidentiary basis for the jury’s award of $300,000 for
the defendants’ allegedly wrongful use of the plaintiff’s
name, the court did not abuse its discretion in setting
aside the jury’s verdict on the plaintiff’s invasion of
privacy claim.
B
The plaintiff next claims that the court abused its
discretion in setting aside the jury’s verdict and award
of damages in the amount of $300,000 on his claim of
tortious interference with his business expectancies.
The trial court set aside the jury’s verdict on this claim
on the grounds that the plaintiff failed to prove that
the defendants tortiously interfered with his actual or
expected contractual relationships with his former
patients and with referring dentists, and that he suffered
an actual loss as a result of any such alleged interfer-
ence. Because we agree with the trial court’s finding
that the plaintiff failed to prove that he suffered an
actual loss as a result of the defendants’ alleged interfer-
ence with his business expectancies, we conclude that
the court did not abuse its discretion in setting aside
the jury’s verdict and award of damages on this claim.
‘‘It is well established that the elements of a claim
for tortious interference with business expectancies
are: (1) a business relationship between the plaintiff
and another party; (2) the defendant’s intentional inter-
ference with the business relationship while knowing
of the relationship; and (3) as a result of the interfer-
ence, the plaintiff suffers actual loss. . . . It is not
essential to such a cause of action that the tort have
resulted in an actual breach of contract, since even
unenforceable promises, which the parties might volun-
tarily have performed, are entitled to be sheltered from
wrongful interference. . . . It does not follow from
this, however, that a plaintiff may recover for an inter-
ference with a mere possibility of his making a profit.
On the contrary, wherever such a cause of action as
this is recognized, it is held that the tort is not complete
unless there has been actual damage suffered. . . . To
put the same thing another way, it is essential to a cause
of action for unlawful interference with business that
it appear that, except for the tortious interference of
the defendant, there was a reasonable probability that
the plaintiff would have entered into a contract or made
a profit.’’ (Citations omitted; internal quotation marks
omitted.) Villages, LLC v. Longhi, 187 Conn. App. 132,
146–47, 201 A.3d 1098 (2019).
‘‘[T]he proper measure of damages in an action for
tortious interference with . . . business expectancies
is not the profit to the defendant but rather the pecuni-
ary loss to the plaintiff of the benefits of the prospective
business relation.’’ American Diamond Exchange, Inc.
v. Alpert, 101 Conn. App. 83, 103, 920 A.2d 357, cert.
denied, 284 Conn. 901, 931 A.2d 261 (2007). ‘‘Unlike
other torts in which liability gives rise to nominal dam-
ages even in the absence of proof of actual loss . . .
it is an essential element of the tort of unlawful interfer-
ence with business relations that the plaintiff suffered
actual loss.’’ (Citation omitted; internal quotation marks
omitted.) American Diamond Exchange, Inc. v. Alpert,
supra, 302 Conn. 510.
Here, the court reasoned: ‘‘[T]he court agrees [with
the defendants] that [the plaintiff] did not prove by a
preponderance of the evidence an ascertainable actual
loss as a result of the defendants’ wrongful actions.
Assuming, as the court must, that the jur[y] believed
that the defendants acted wrongfully in the manner in
which they advised [the plaintiff’s] former patients after
his termination from DOMSA, there was still no evi-
dence to support the jury’s award of $300,000 in lost
revenue [to the plaintiff]. . . . [E]ven if the jury reason-
ably believed that the defendants diverted [the plain-
tiff’s] former patients in the weeks and months follow-
ing his termination from DOMSA, and did so with an
improper motive, it is clear to the court that the jury
could not have awarded [the plaintiff] an additional
$300,000 over and above the amount awarded for viola-
tion of the supplementary agreement. The court agrees
with the defendants that the evidence at trial showed
that the revenue that the jury found was impermissibly
diverted would have been the same revenue that [the
plaintiff] would have received had he stayed with
DOMSA and continued to treat those patients as an
associate surgeon. In the court’s view, the jury could
not have reached its verdict as to tortious interference
unless [it] found that the defendants had no right to
treat [the plaintiff’s] former patients, and found that
[the plaintiff] would have earned $300,000 in revenue
over and above what he would have earned at DOMSA
but for the wrongful termination. The evidence at trial,
however, does not support either of these underlying
findings.’’ In other words, the court explained: ‘‘[T]here
is nothing to distinguish the evidence of lost earnings
awarded for breach of the supplementary agreement
from lost earnings by diversion of former clients. . . .
[T]he court agrees with the defendants that the only
fair, logical, and reasonable inference to be drawn from
the jury’s findings and award for tortious interference
with business expectancies is that it duplicates the
award for breach of the supplementary agreement.’’
We agree with the trial court’s conclusion that the
plaintiff failed to prove any actual loss resulting from
the defendants’ alleged interference with his business
expectancies. Similar to the plaintiff’s claim of misap-
propriation of his name, the plaintiff failed to provide
the jury with even an estimate of how many or which
patients he lost as a result of the defendants’ conduct.
Without such an evidentiary basis, there is no way to
calculate or objectively ascertain the amount of dam-
ages sustained by the plaintiff with even a minimal
degree of certainty.
Moreover, ‘‘[t]he rule precluding double recovery is
a simple and time-honored maxim that [a] plaintiff may
be compensated only once for his just damages for the
same injury . . . . Connecticut courts consistently
have upheld and endorsed the principle that a litigant
may recover just damages for the same loss only once.
The social policy behind this concept is that it is a
waste of society’s economic resources to do more than
compensate an injured party for a loss and, therefore,
that the judicial machinery should not be engaged in
shifting a loss in order to create such an economic
waste. . . . [D]uplicated recoveries must count as
overcompensation by any standard. In general, two dif-
ferent measures should not be used to compensate for
the same underlying loss . . . . Duplicated recoveries,
furthermore, must not be awarded for the same underly-
ing loss under different legal theories. . . . Although
a plaintiff is entitled to allege respective theories of
liability in separate claims, he or she is not entitled
to recover twice for harm growing out of the same
transaction, occurrence or event.’’ (Citations omitted;
internal quotation marks omitted.) Rowe v. Goulet, 89
Conn. App. 836, 849, 875 A.2d 564 (2005).
The plaintiff has already recovered for losses that he
sustained as a result of his wrongful termination, and
that recovery contemplated his lost earnings, which is
the same measure of damages for which he sought to be
compensated under his claim of tortious interference.
Such a duplicated recovery is impermissible. In fact,
the court instructed the jury as follows: ‘‘You must
consider the issue of damages separately for each cause
of action for which you find liability—whether it’s the
plaintiff’s or defendants’—without regard for any dam-
ages that you may have awarded in any other cause of
action. The court will ensure that either party does not
recover more than once for the same loss, even if that
party prevails on two or more causes of action.’’ In
setting aside the jury’s verdict on the plaintiff’s claim
of tortious interference, the trial court properly ensured
that the plaintiff did not recover twice for the same loss.
C
The plaintiff also claims that the trial court erred in
setting aside the jury’s verdict and award of damages
in the amount of $100,000 for violations of CUTPA.
The jury found that the defendants violated CUTPA by
failing to obtain the plaintiff’s vote prior to hiring Traub;
failing to disclose business transactions made on behalf
of DOMSA, including settlement of the Medicaid audit;
wrongfully terminating the plaintiff before he reached
eighty years old; failing to allow the plaintiff to work
a schedule of his choosing; intentionally interfering with
the plaintiff’s business relations and economic expec-
tancies; and misappropriating the plaintiff’s name. In
setting aside the jury’s CUTPA verdict, the trial court
explained that it should not have instructed the jury on
the plaintiff’s CUTPA claims because they arose from
intracorporate employment disputes that are not sub-
ject to CUTPA. The court also found that the plaintiff
failed to prove that he sustained any ascertainable loss
as a result of the defendants’ alleged CUTPA violations.
The plaintiff’s challenge to the trial court’s finding that
the defendants’ conduct was intracorporate is focused
on the defendants’ post-termination conduct of alleg-
edly diverting the plaintiff’s patients from him and mis-
appropriating his name. Even if those claims were via-
ble under CUTPA, we agree that the plaintiff failed to
prove that he sustained any ascertainable loss as a result
of the defendants’ alleged CUTPA violations.12
‘‘[Section] 42-110b (a) provides 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.’’ (Internal quotation marks omitted.)
Landmark Investment Group, LLC v. CALCO Con-
struction & Development Co., 318 Conn. 847, 880, 124
A.3d 847 (2015).
‘‘To give effect to its provisions, § 42-110g (a) of the
act establishes a private cause of action, available to
[a]ny person who suffers any ascertainable loss of
money or property, real or personal, as a result of the
use or employment of a method, act or practice prohib-
ited by section 42-110b . . . .
‘‘The ascertainable loss requirement [of § 42-110g] is
a threshold barrier which limits the class of persons
who may bring a CUTPA action seeking either actual
damages or equitable relief. . . . Thus, to be entitled
to any relief under CUTPA, a plaintiff must first prove
that he has suffered an ascertainable loss due to a
CUTPA violation. . . . CUTPA, however, is not limited
to providing redress only for consumers who can put
a precise dollars and cents figure on their loss . . . as
the ascertainable loss provision do[es] not require a
plaintiff to prove a specific amount of actual damages
in order to make out a prima facie case. . . . Rather
. . . [d]amage . . . is only a species of loss . . .
hence [t]he term loss necessarily encompasses a
broader meaning than the term damage. . . . Accord-
ingly . . . for purposes of § 42-110g, an ascertainable
loss is a deprivation, detriment [or] injury that is capable
of being discovered, observed or established. . . . [A]
loss is ascertainable if it is measurable even though the
precise amount of the loss is not known. . . . Under
CUTPA, there is no need to allege or prove the amount
of the actual loss. . . .
‘‘Of course, a plaintiff still must marshal some evi-
dence of ascertainable loss in support of her CUTPA
allegations, and a failure to do so is indeed fatal to a
CUTPA claim . . . .’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Marinos v.
Poirot, 308 Conn. 706, 713–14, 66 A.3d 860 (2013).
‘‘A plaintiff also must prove that the ascertainable
loss was caused by, or a result of, the prohibited act.
General Statutes § 42-110g (a) . . . . When plaintiffs
seek money damages, the language as a result of in
§ 42-110g (a) requires a showing that the prohibited act
was the proximate cause of a harm to the plaintiff. . . .
[P]roximate cause is [a]n actual cause that is a substan-
tial factor in the resulting harm . . . . The question to
be asked in ascertaining whether proximate cause
exists is whether the harm which occurred was of the
same general nature as the foreseeable risk created by
the defendant’s act.’’ (Internal quotation marks omit-
ted.) Landmark Investment Group, LLC v. CALCO
Construction & Development Co., supra, 318 Conn.
882–83.
On appeal, the plaintiff argues: ‘‘Deceit permeated
the defendants’ actions from the time Kurtz took over
as manager of the practice in 2009 until the defendants
successfully drove [the plaintiff] out of the practice and
essentially destroyed his career. Kurtz lied to get [the
plaintiff]’s patients and referral sources to continue to
provide the business after [the plaintiff] left.’’ Although
the record supports the plaintiff’s allegations that some
of the plaintiff’s patients called DOMSA after he left
and were not referred to him, the plaintiff failed to
marshal any evidence of an ascertainable loss as a result
of that conduct. The plaintiff did not introduce any
evidence of even an estimate of the number of patients
that he lost, or financial loss that was attributable to
the loss of those patients. In his brief to this court, the
plaintiff argues simply that ‘‘his W-2s and [the] defen-
dants’ earning records’’ established an ascertainable
loss. Although those documents demonstrate a reduc-
tion in the plaintiff’s earnings following his termination
from DOMSA, the plaintiff failed to establish that the
defendants’ alleged conduct of diverting patients from
him and using his name proximately caused any loss
that can be gleaned from an examination of those docu-
ments. We thus conclude that the trial court did not
abuse its discretion in setting aside the jury’s verdict
on the plaintiff’s CUTPA claim.
D
The plaintiff also challenges the trial court’s judgment
setting aside the jury’s verdict and award of damages
in the amount of $150,000 on his claim of unjust enrich-
ment. It is well-settled that a plaintiff may recover for
unjust enrichment when a contract remedy is unavail-
able, to the extent that the defendant has unjustly prof-
ited at the plaintiff’s expense. Horner v. Bagnell, 324
Conn. 695, 707–708, 154 A.3d 975 (2017). In other words,
breach of contract and unjust enrichment are mutually
exclusive theories of recovery. Russell v. Russell, 91
Conn. App. 619, 638, 882 A.2d 98, cert. denied, 276 Conn.
924, 925, 888 A.2d 92 (2005).
Here, the plaintiff alleged that the defendants were
unjustly enriched ‘‘as a result of their squeeze out and
wrongful termination of . . . [him] and their scheme
to divert patients from . . . [him].’’ Because the plain-
tiff had already recovered for wrongful termination
under his claim that the defendants breached the sup-
plementary agreement, the trial court found, and we
agree, that he could not again recover under an unjust
enrichment theory. We therefore conclude that the trial
court properly set aside the jury’s verdict on the plain-
tiff’s claim of unjust enrichment.
E
The plaintiff also claims that the trial court erred
in dismissing his claims for breach of the operating
agreement and breach of the implied covenant of good
faith and fair dealing in the operating agreement on the
ground that the court lacked subject matter jurisdiction
because he lacked standing to bring those claims. We
disagree.
The jury found that the defendants breached the
operating agreement and the implied covenant of good
faith and fair dealing in the operating agreement by
failing to disclose to the plaintiff business transactions
made on behalf of DOMSA, specifically, the settlement
of the Medicaid audit, and by failing to obtain the plain-
tiff’s vote prior to hiring Traub. The jury did not award
any compensatory damages to the plaintiff on his claim
of breach of the operating agreement, but did indicate
that the plaintiff was entitled to punitive damages. It
awarded him damages in the amount of $150,000 for
breach of the implied covenant of good faith and fair
dealing in that agreement.
On February 17, 2017, the defendants filed a motion to
dismiss the plaintiff’s claims for breach of the operating
agreement and breach of the implied covenant of good
faith and fair dealing in the operating agreement for lack
of subject matter jurisdiction. The defendants claimed,
inter alia, that the plaintiff lacked standing to bring
those claims because the alleged violations of the plain-
tiff’s rights to be advised of DOMSA’s finances and to
vote on the hiring of Traub did not cause the plaintiff
any harm, and he therefore was not aggrieved.13 The
defendants further argued that even if those violations
did cause harm, any harm sustained by the plaintiff
was derivative of, and indistinguishable from, the harm
sustained by DOMSA.
On January 26, 2018, the trial court granted the defen-
dants’ motion to dismiss, by way of a written memoran-
dum of decision, on the ground that the plaintiff did
not suffer any injury as a result of the two claims related
to the operating agreement that was separate and dis-
tinct from injury suffered by DOMSA, and thus that the
claims of breach of the operating agreement should
have been brought as derivative actions. The trial court
thus concluded that it lacked subject matter jurisdiction
over the plaintiff’s claims of breach of the operating
agreement and breach of the implied covenant of good
faith and fair dealing in the operating agreement
because the plaintiff did not have standing to bring
them.
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to determine the
cause. . . . [A] claim that a court lacks subject matter
jurisdiction may be raised at any time during the pro-
ceedings . . . . A determination regarding a trial
court’s subject matter jurisdiction is a question of
law. . . .
‘‘[S]tanding is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy.’’ (Citations
omitted; internal quotation marks omitted.) Wiederman
v. Halpert, 178 Conn. App. 783, 793–94, 176 A.3d 1242(2017), cert. granted on other grounds, 328 Conn. 906,
177 A.3d 1161 (2018).
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring suit or is
classically aggrieved. . . . The fundamental test for
determining [classical] aggrievement encompasses a
well-settled twofold determination: first, the party
claiming aggrievement must successfully demonstrate
a specific, personal and legal interest in [the subject
matter of the challenged action], as distinguished from
a general interest, such as is the concern of all members
of the community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action].’’ (Inter-
nal quotation marks omitted.) Id., 794–95.
‘‘[A]s a general rule, a plaintiff lacks standing unless
the harm alleged is direct rather than derivative or indi-
rect. . . . [I]f the injuries claimed by the plaintiff are
remote, indirect or derivative with respect to the defen-
dant’s conduct, the plaintiff is not the proper party to
assert them and lacks standing to do so. Where, for
example, the harms asserted to have been suffered
directly by a plaintiff are in reality derivative of injuries
to a third party, the injuries are not direct but are indi-
rect, and the plaintiff has no standing to assert them.’’
(Citation omitted; internal quotation marks omitted.)
Id., 795.
‘‘A limited liability company is a distinct legal entity
whose existence is separate from its members. . . .
[It] has the power to sue or to be sued in its own name;
see General Statutes §§ 34-124 (b) and 34-186; or may
be a party to an action brought in its name by a member
or manager. . . . A member or manager, however, may
not sue in an individual capacity to recover for an injury
based on a wrong to the limited liability company.’’
(Internal quotation marks omitted.) Padawer v. Yur,
142 Conn. App. 812, 817, 66 A.3d 931, cert. denied, 310
Conn. 927, 78 A.3d 145 (2013).
On appeal, the plaintiff challenges the trial court’s
determination that he lacked standing to bring his
claims related to the operating agreement. In his opposi-
tion to the defendants’ motion to dismiss, and in his
‘‘Omnibus Statement of Facts in Support of [His] Oppo-
sition to [the] Defendants’ Post-Trial Motions,’’ the
plaintiff argued that he suffered loss as a result of Kurtz’
failure to inform him of the Medicaid reimbursement
by virtue of the fact that, at that time, he retained a
one percent interest in DOMSA, and because he contin-
ued to treat Medicaid patients ‘‘without knowing that
Medicaid was not reimbursing [DOMSA] for his work,’’
the loss of Medicaid revenue to DOMSA caused him to
suffer financial loss. It cannot reasonably be disputed
that such a loss was derivative of a loss to DOMSA. To
the extent that the plaintiff now argues that his loss
was not derivative ‘‘because the defendants did not
compensate him for his treatment of Medicaid patients
over a two-year period and then in 2013,’’ the trial court
properly found that ‘‘[t]he only evidence at trial was
that [the plaintiff] continued to receive his 50 percent
share of the net collections for his services at DOMSA.’’
The trial court concluded that ‘‘there was no evidence
brought forth at trial that [the plaintiff] was harmed in
any way by the results of the Medicaid audit.’’ Conse-
quently, the plaintiff has failed to prove that he was
aggrieved by Kurtz’ failure to inform him of the Medic-
aid audit.
Also in his opposition to the defendants’ motion to
dismiss, the plaintiff alleged that ‘‘[t]he hiring of Traub
proved . . . costly to [the plaintiff]—since it directly
led to his termination from DOMSA’’ and thereby caused
him to lose ‘‘millions of dollars in income.’’ This claim
is belied by the record. Although the plaintiff should
have been afforded the opportunity to vote on the deci-
sion to hire Traub pursuant to the terms of the operating
agreement, he has not claimed, nor does the evidence
presented at trial reflect, that he opposed that hiring
decision. Indeed, the evidence presented at trial indi-
cated that the plaintiff and Kurtz agreed to advertise
for a new associate. Moreover, we agree with the trial
court’s finding that the plaintiff ‘‘introduced no evidence
of a direct connection between the hiring of Traub
and [the plaintiff]’s termination at trial or evidence that
Kurtz employed Traub as a first step in forcing [the
plaintiff] out of DOMSA.’’ The plaintiff failed to prove
that he was specially and injuriously affected by Kurtz’
failure to secure his approval of Traub’s hiring, and he,
therefore, lacked standing to claim that the defendants
breached the operating agreement or the implied cove-
nant of good faith and fair dealing in that agreement.
We therefore conclude that the trial court properly dis-
missed these claims.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The complete titles and the terms of these documents will be set
forth herein.
2
Prior to trial, the plaintiff withdrew his claims of slander, and intentional
and negligent infliction of emotional distress; and the defendants withdrew
the counts of their counterclaim alleging breach of the operating agreement.
After the plaintiff rested his case, the court directed a verdict in favor of
the defendants on the plaintiff’s claim of breach of the purchase and sale
agreement. The plaintiff abandoned his claim seeking a declaratory judgment
that he is no longer bound by the restrictive covenant contained in the
operating agreement.
3
The defendants withdrew their claims related to the operating agreement
prior to trial.
4
The jury also found that the defendants breached the operating agree-
ment, violated CFEPA, and breached their fiduciary duty to the plaintiff,
but awarded the plaintiff no damages under those counts.
5
The jury also found that the plaintiff was entitled to punitive damages
for breach of the supplementary agreement and breach of the implied cove-
nant of good faith and fair dealing in the supplementary agreement. The
trial court set aside that determination, and the plaintiff has not challenged
that ruling on appeal.
6
Because we conclude that the evidence was sufficient to prove that the
plaintiff was terminated, we do not reach the defendants’ additional claim
that the evidence was insufficient to support the jury’s award of damages
if the only breach of the supplementary agreement was the prevention of
the plaintiff from working a schedule of his choosing.
7
We note that because the jury’s award of damages was not apportioned
between the two claimed breaches of the supplementary agreement, the
jury’s verdict may be sustained on the basis of the evidentiary sufficiency
of his first allegation under the general verdict rule.
8
The trial court explained: ‘‘In count three, [the plaintiff] alleged that
Kurtz, in his professional capacity, violated the supplementary agreement
by ‘wrongfully terminating . . . [the plaintiff] . . . prior to his eightieth
birthday . . . [failed] to allow . . . [the plaintiff] to work a schedule of his
choosing . . . and . . . [failed] to compensate . . . [the plaintiff] for fifty
[percent] . . . of [his] net collections . . . .’ Count seven, regarding the
breach of the implied covenant of good faith and fair dealing in the supple-
mentary agreement, alleged that the defendants were obligated to not ‘take
any improper action which would deprive . . . [the plaintiff] of the benefit
of his bargain . . . [Kurtz’] aforesaid acts and omissions [alleged in count
three] . . . were breaches . . . of the aforesaid covenant of good faith and
fair dealing.’ ’’
9
To the extent that the defendants argue that the awards of damages for
breach of contract and breach of the implied covenant of good faith and
fair dealing are impermissibly duplicative, that issue cannot be determined
based upon the jury’s responses to the interrogatories. Although the jury
found that the defendants breached the contract and the implied covenant
of good faith and fair dealing by terminating the contract and denying the
plaintiff the right to work the schedule of his choosing, it is possible one
award of damages was for wrongful termination, while the other for usurping
the plaintiff’s schedule.
10
The plaintiff claims that if this court restores the jury’s verdict on any
of these claims, he is entitled to attorney’s fees and punitive damages.
Because we affirm the court’s judgment setting aside these portions of the
jury’s verdict, we do not reach this argument.
11
The issue of whether ‘‘personal good will’’ includes the use of one’s
name has not been decided in Connecticut.
12
Because we conclude that the trial court correctly concluded that the
plaintiff failed to establish any ascertainable loss, we need not address the
plaintiff’s claim that the court erred in finding that the defendants’ conduct
arose from intracorporate employment disputes that are not subject to
CUTPA.
13
The defendants also claimed that the plaintiff’s claims regarding the
operating agreement were moot. Because we agree with the trial court’s
determination that the plaintiff lacked standing to bring these claims, we
need not address the defendants’ mootness argument.