Medical Device Solutions, LLC v. Aferzon

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MEDICAL DEVICE SOLUTIONS, LLC
v. JOSEPH AFERZON ET AL.
(AC 44098)
Elgo, Alexander and Sheldon, Js.
Syllabus
The plaintiff, M Co., which designs and develops prototypes of medical
devices, sought to recover damages for breach of contract and unfair
trade practices from the defendants, A, a neurosurgeon and inventor,
and I Co., which A and a partner had formed to develop medical devices
for use in spinal surgery. In November, 2004, L, an owner of M Co., and
A entered into a written agreement under which the parties were to share
equally any compensation that resulted from the sale and/or licensing
of a medical device conceived of by A, or any version thereof, for use
in spinal surgery. The parties’ one page contract provided that any
required funding or financial commitments were to be part of a separate
agreement they would negotiate later and that A was to promptly notify
M Co. of any compensation he received for the device or any versions
thereof. A further agreed that he was not under any contractual agree-
ment with any other company concerning the device. At the time the
parties entered into the written agreement, they also agreed orally that
M Co. would create design drawings and a prototype of the device, and,
at that time, A gave M Co. his initial drawings of the device. By early
2005, M Co. had prepared a prototype of the device and successfully
installed it in a cadaver. M Co. thereafter utilized a different design and
produced another prototype that it gave to A by October, 2005. By that
time, A had become dissatisfied with M Co.’s work and continued to
work on developing the device on his own without informing M Co. In
December, 2005, A applied for a patent on an anterior intervertebral
spinal fixation and fusion device that he had developed with the help
of his son. A thereafter did not respond in writing to a letter from L in
February, 2006, concerning the value of M Co.’s services and, in July,
2007, formed I Co. A also did not respond to e-mails from L in 2008
requesting an update on the project, and, in May, 2008, A and his son,
without informing M Co., assigned to I Co. their ownership interest in
their pending patent. In 2009, several months before A and his son
were issued a patent on their device, I Co. entered into a cross license
agreement with S Co., a medical device manufacturer, that allowed S
Co. to sell spinal fusion devices that were based on the patented device.
In exchange, I Co. was to receive shares of A Co.’s stock and, thereafter,
certain royalty and other payments. Between June, 2010, and August,
2019, S Co. sent I Co. thirty-four royalty payments, shares of S Co. stock,
and $50,000 for I Co.’s expenses in developing and patenting the spinal
fusion device. A and I Co. never notified M Co. of their receipt of
compensation for the sale and/or licensing of the spinal fusion device.
After M Co. first became aware that A had developed and patented a
profitable spinal fusion device, its counsel sent letters to A in November,
2017, and in February, 2018, requesting that A inform M Co. as to those
matters. A did not respond to either letter. The defendants asserted
various special defenses, including that M Co.’s claims were barred by
applicable statutes of limitations. M Co. asserted that the running of
the statutes of limitations had been tolled pursuant to the statute (§ 52-
595) concerning fraudulent concealment and/or the continuing course
of conduct doctrine. The trial court initially rendered partial judgment for
M Co. on its breach of contract claim and its claim under the Connecticut
Unfair Trade Practices Act (CUTPA) (§ 42-110 et seq.). The court deter-
mined that the November 4, 2004 document, as supplemented by the
parties’ contemporaneous oral agreement, was sufficient to form a defi-
nite contract. It further determined that the patented device was a
version of the device for which M Co. had created design drawings and
a prototype for A, and that I Co. was founded in bad faith to avoid
liability to M Co. In awarding damages, the court found that, except for
S Co.’s $50,000 payment for expenses, M Co. was entitled to recover 50
percent of the sum of all thirty-four royalty payments I Co. received
from S Co., including the cash value of the payment of shares of S Co.
stock, and awarded M Co. damages and prejudgment interest pursuant
to statute (§ 37-3a) on its breach of contract claim. Additionally, the court
determined that the running of any applicable statutes of limitations
had been tolled by both § 52-595 and the continuing course of conduct
doctrine but did not determine whether the three year statute of limita-
tions (§ 52-581) or the six year statute of limitations (§ 52-576) applied
to M Co.’s breach of contract claim. The court limited M Co.’s recovery
under CUTPA to an award of attorney’s fees and expenses. The court
also awarded M Co. interest pursuant to statute (§ 52-192a) on an offer
of compromise M Co. had made that the defendants did not accept. On
the defendants’ appeal and M Co.’s cross appeal to this court, held:
1. The trial court’s consideration of parol evidence in determining that the
parties entered into an enforceable contract was permissible, as the
November, 2004 agreement was not integrated: the written portion of
the agreement was clearly not the final repository of the parties’ dealings,
as it included no obligation on the part of M Co. and, without mentioning
M Co., merely stated that another agreement would be negotiated later;
moreover, because the agreement was not integrated as to M Co.’s
development commitments insofar as it provided that those commit-
ments would be the subject of the separate agreement, the element of
the parties’ extrinsic negotiation the court relied on was that M Co.
orally agreed to create drawings and a prototype, which did not violate
the parol evidence rule; furthermore, the court’s conclusion that the
parties had an enforceable contract was premised on its amply supported
factual finding that M Co.’s obligations were orally agreed to on the
same date the document was signed, and because that finding was based
on the court’s credibility findings, the court’s subsequent finding that
the essential contract terms were agreed to on November 4, 2004, was
not clearly erroneous.
2. The trial court properly determined that the patented device and M Co.’s
prototype, on which it was based, were within the scope of the parties’
agreement, and, thus, it was not improper for the court to conclude that
the patented device was a version of the device depicted in A’s initial
sketches: the defendants could not prevail on their claim that the court
failed to apply the language in the written agreement in analyzing
whether the licensed patent was associated with the device in A’s initial
drawings or a version thereof, as the trial court’s usage of ‘‘relate’’
reflected its interpretation of the agreement’s operative language, and it
stated elsewhere in its memorandum of decision that the patent drawings
appeared to be a ‘‘version’’ of the same device on which A had promised
to partner with M Co.; moreover, it was not improper, as the defendants
claimed, for the court to compare A’s 2004 sketches to the figures in
the patent application and patent to determine if the idea in the patent
was related to the idea referenced in the parties’ agreement, as nothing
in the agreement suggested an intention that a claims analysis under
federal patent law be the method used to determine if a subsequent
device was a version of the original device, as to which M Co. was
entitled to receive compensation, and the court did not rely solely on
the figures in the patent, as it mentioned several times in its decision
what was described in the patent; furthermore, it was not improper for
the court to consider M Co.’s prototype in analyzing the language of
the agreement, as the agreement allowed for such consideration, the
court considered the prototype to be a link in a chain from A’s initial
drawings to the design he patented, and the phrase in the agreement,
‘‘intellectual property developed associated with this device and/or ver-
sions of this device,’’ covered intellectual property that was associated
with versions of the device and permitted the court to consider later
versions of the initial device.
3. The trial court improperly concluded that any statute of limitations applica-
ble to M Co.’s claims was tolled under either § 52-595 or the continuing
course of conduct doctrine:
a. Because the statute of limitations could no longer be tolled as a result
of fraudulent concealment once M Co. had sufficient knowledge of its
cause of action for breach of contract, the six factual predicates on which
the trial court relied in making its determination could not constitute
fraudulent concealment, as A’s letter to L in 2006, L’s e-mails to A and
A’s transfer of his patent rights to I Co. in 2008, and I Co.’s receipt of
S Co. stock in 2010 preceded any breach of the parties’ contract, and, thus,
it was impossible at those times for A to have intentionally concealed
or to have had actual awareness of M Co.’s then nonexistent cause of
action, and M Co. had already learned of the facts necessary to establish
a cause of action for breach of contract at the time its counsel mailed
the presuit letters to A; moreover, A’s failure to notify M Co. whenever I
Co. received compensation from the sale and/or licensing of the patented
device merely constituted nondisclosure, which, standing alone, could
not establish fraudulent concealment in the absence of a fiduciary duty.
b. The continuing course of conduct doctrine did not apply to the defen-
dants’ actions, as A’s series of breaches caused separate damages that
were readily calculable at the time of each breach, which was incompati-
ble with the doctrine’s requirement of an initial wrong and a subsequent
continuing duty that are distinct from one another; moreover, there was
no evidence to support the court’s finding that the parties had a special
relationship, as A’s continuing duty to report his gains from the device
idea to M Co. alone was insufficient to establish a special relationship,
the court made no findings that the parties had a confidential relationship
or that there was a unique degree of trust and confidence between
them, and a mere contractual relationship did not create a fiduciary or
confidential relationship.
c. The six year statute of limitations set forth in § 52-576 applied to M
Co.’s breach of contract claim, as the contract between the parties was
not executory; although there may have been some dispute at trial as
to the extent of M Co.’s obligations, neither party challenged the trial
court’s factual finding that M Co. fully performed its contractual obliga-
tions.
d. Because of the viability of the defendants’ special defense under the
statute of limitations, the trial court’s award of expectation damages on
M Co.’s breach of contract claim had to be reduced to the total of all
expectation damages the court awarded on the basis of the defendants’
failure to pay M Co. its 50 percent share of the compensation the defen-
dants received for the sale and/or licensing of the patented device within
the applicable six year limitation period, and, although the court unac-
countably included 50 percent of S Co.’s $50,000 reimbursement payment
to I Co. for expenses in the calculation of M Co.’s expectation damages,
this court did not need to modify the adjusted award of expectation
damages because the $50,000 payment was received by the defendants
before the six year limitation period began; moreover, because the trial
court erroneously awarded prejudgment interest on several sums M Co.
claimed as expectation damages that were outside the six year limitation
period and then compounded that error by awarding additional prejudg-
ment interest on those same sums until the date it rendered final judg-
ment, the interest on both awards had to be reduced to exclude the
improperly awarded interest.
e. The trial court properly found that A breached the parties’ agreement
in bad faith and that those breaches constituted violations of CUTPA:
although the court improperly awarded M Co. attorney’s fees and
expenses on the basis of conduct by the defendants that occurred outside
of CUTPA’s three year statute of limitations (§ 42-110g), the evidence
supported the court’s finding that a number of the defendants’ breaches
of the agreement occurred within the three year limitation period, and,
because the court engaged in no discussion of the applicable statute of
limitations, and several breaches on which it relied occurred outside
the three year limitation period, the case had to be remanded for a
determination, if possible, of what portion of the fees and costs awarded
were reasonably incurred to litigate that portion of the CUTPA claim
that was not barred by § 42-110g.
4. The trial court erred in determining the amount of offer of compromise
interest to which M Co. was entitled: the court improperly calculated
the interest on the basis of the difference between the amount of M
Co.’s recovery and the amount of its offer of compromise, as § 52-192a
(c) requires a calculation on that difference only when the offer of
compromise is filed by a counterclaim plaintiff pursuant to statute (§ 8-
132), the court failed to include its award of prejudgment interest under
§ 37-3a in M Co.’s total recovery when calculating offer of compromise
interest, and it improperly calculated the interest at a rate other than
the statutory rate; accordingly, the judgment on the cross claim awarding
offer of compromise interest was reversed, and the case was remanded
for recalculation of the amount of that award.
Argued March 10—officially released September 28, 2021
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Haven and trans-
ferred to the judicial district of Hartford, Complex Liti-
gation Docket, where the action was withdrawn in part;
thereafter, the case was tried to the court, Moukawsher,
J.; judgment in part for the plaintiff, from which the
defendants appealed to this court; subsequently, the
court, Moukawsher, J., granted in part the plaintiff’s
motion for attorney’s fees; thereafter, the court, Mou-
kawsher, J., issued an order awarding the plaintiff cer-
tain interest and rendered judgment for the plaintiff,
from which the defendants filed an amended appeal
and the plaintiff filed a cross appeal. Reversed in part;
judgment directed; further proceedings.
John L. Cordani, Jr., with whom, on the brief, was
Andrew A. DePeau, for the appellants-appellees (defen-
dants).
Michael T. Cretella, with whom was Brian P. Dan-
iels, for the appellee-appellant (plaintiff).
Opinion
SHELDON, J. This appeal and cross appeal involve
a dispute over the defendants’ alleged failure to make
payments to the plaintiff under a contractual agreement
between them to share equally all compensation
resulting from the sale and/or licensing of a medical
device conceived of by the individual defendant, or any
version thereof, in exchange for the plaintiff’s creation
of design drawings and a prototype of the device based
on the individual defendant’s initial sketches of it. The
defendants appeal from the judgment of the trial court,
Moukawsher, J., rendered in favor of the plaintiff on
its claims of breach of contract and unfair trade prac-
tices in violation of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.,
arising from that dispute. The defendants claim that
the trial court improperly concluded (1) that the parties
entered into a definite and enforceable contract to make
the subject payments in exchange for the plaintiff’s
work, (2) that payments received by the defendants for
the sale and/or licensing of an anterior spinal fusion
device known as the Solus, which was based on a design
patented by the individual defendant after his alleged
contract with the plaintiff had been entered into, were
covered by the contract, (3) that all statutes of limita-
tions applicable to the plaintiff’s claims for relief in
this case were tolled under the fraudulent concealment
doctrine and/or the continuing course of conduct doc-
trine, and (4) that the plaintiff was entitled to recover
attorney’s fees from the defendants under CUTPA based
upon the defendants’ bad faith breaches of the parties’
alleged contract. The plaintiff cross appeals from the
trial court’s judgment awarding it offer of compromise
interest on its judgment against the defendants, arguing
that the court improperly calculated the amount of such
interest to which it was entitled. On the defendants’
appeal, we affirm in part and reverse in part the judg-
ment of the trial court. On the plaintiff’s cross appeal,
we reverse the judgment of the trial court and remand
the case for further proceedings with instructions to
recalculate the amount of offer of compromise interest
to which the plaintiff is entitled in accordance with this
opinion.
The following procedural history and facts, as found
by the court and supported by the record, are relevant
to this case. The plaintiff corporation, Medical Device
Solutions, LLC (plaintiff or MDS), was formed in 2003,
by William Lyons in Meriden to engage in the business
of designing and developing medical device prototypes.
At the time he formed MDS, Lyons was already the
partial owner and operator of another company in Meri-
den called Lyons Tool & Die, which was engaged in the
business of manufacturing medical components. MDS
and Lyons Tool & Die were operated in the same physi-
cal premises, and MDS used Lyons Tool & Die employ-
ees to manufacture its prototypes. MDS initially had
one other member, Wayne Young, who remained a 50
percent owner of the corporation until 2007.
The individual defendant, Joseph Aferzon, is an
accomplished neurosurgeon and inventor who has
owned and operated a private medical practice in Con-
necticut since 1996. Aferzon frequently partnered with
Jeffrey A. Bash, an orthopedic spine surgeon, to per-
form complex spinal surgeries. Bash estimated that he
and Aferzon had performed approximately 10,000 sur-
geries together by the time of trial. The defendant corpo-
ration, International Spinal Innovations, LLC (ISI), was
formed in 2007 by Aferzon and Bash to develop medical
devices for use in spinal surgery.
Aferzon was interested in making spinal fusion sur-
gery safer and less invasive. In June, 2004, he conceived
of a small spinal fusion device consisting of a cage and
rotating blades. The trial court described the concept
of the device as follows: ‘‘The cage is a sturdy tapering
rectangle, open, without top or bottom. Within its four
walls is a series of rotating, claw-like blades. Doctors
insert this cage between the vertebrae of the spine and
use a tool to thrust sets of the claws out of the cage’s
top and bottom. As the claws emerge from their cage,
they dig themselves into the ends of the vertebrae, fixing
the cage in place between them. This fuses the bones
together, and they gradually heal into a single solid
bone.’’ Aferzon sketched some initial drawings of the
device and, on September 27, 2004, applied for a provi-
sional patent on it with the United States Patent and
Trademark Office (patent office) on the basis of those
drawings. The patent application titled the device a
‘‘CLAWFIX’’ and described it as a ‘‘novel method’’ for
‘‘direct intervertebral fixation.’’ Attached to the applica-
tion were the initial drawings of the device that Aferzon
had sketched in June, 2004.
On November 4, 2004, Aferzon approached Lyons and
Young at MDS to ask for their help in creating the
device. He provided them with his initial drawings and
asked them to create a prototype of the device. During
that visit, MDS gave Aferzon a one page document for
his signature, which he and Lyons then signed. This
document set forth an agreement that is central to the
parties’ dispute. The subject line of the document reads,
‘‘Reference invention: Spinal Cage with Rotating/Oppos-
ingBlades,’’ and its text provides: ‘‘Joseph Aferzon
(inventor/owner of above stated invention) agrees that
[MDS] will receive 50% of the total compensation
resulting from the sale and/or licensing of the above
mentioned device, versions of this device, associated
intellectual property and/or any intellectual property
developed associated with this device and/or versions
of this device. Any development, funding or financial
commitments required will be part of a separate agree-
ment and negotiated at a later date. [Aferzon] further
agrees to promptly notify [MDS] of any compensation
received for the above mentioned device, versions of
the device, associated intellectual property and/or any
intellectual property developed associated with this
device and versions of this device. This agreement is
limited to the above mentioned device, versions of this
device, associated intellectual property and/or any intel-
lectual property developed associated with this device
and/or versions of this device. In signing this agreement,
[Aferzon] agrees that he has not had prior contact with
any company regarding this specific device and he is
not under any contractual agreement with any other
companies concerning this device.’’
Although the document provided that ‘‘[a]ny develop-
ment, funding or financial commitments required will
be part of a separate agreement and negotiated at a
later date,’’ the parties agree that no further written
agreements were ever executed. The court instead
found, as Lyons and Young both testified, that the par-
ties agreed orally, on the same day they signed the
written agreement, that MDS’s obligation under the
written agreement would be to create drawings and a
prototype of the new device conceived by Aferzon ‘‘as
a part [of] an effort to prove the concept’’ of the device.1
Lyons and Young promptly began to work on produc-
ing a prototype. Young explained that the creation of
a medical device prototype proceeds in stages. It begins
with sketches, moves on to the creation of digital design
files known as computer aided design (CAD) files, and
ultimately concludes with the manufacture of a proto-
type. Lyons testified that, because Aferzon’s drawings
did not include an adequate mechanism for rotating the
blades within the cage, he and Young had to come up
with such a mechanism themselves. Young thus pre-
pared a series of sketches based on Aferzon’s ideas and
eventually came up with a ‘‘center shaft design’’ for
rotating the blades, in which the rotating blades were
attached to a single shaft that ran through the cage of
the device. MDS then created multiple digital design
files for a center shaft device and manufactured a proto-
type of the device using the center shaft design.
Lyons and Young further testified that the center
shaft design prototype was tested in a cadaver at the
University of Connecticut Health Center in Farmington
either toward the end of 2004 or in early 2005. They
also testified that Aferzon and Bash were present during
the test at the health center when the device was suc-
cessfully installed in a cadaver using an Allen wrench
to rotate the blades into place. Although Aferzon and
Bash both testified that they had no recollection of the
cadaver test, the court credited the testimony of Lyons
and Young on this subject.
After the cadaver test, MDS continued its work on
the device, pivoting to a different design. Young began
to work on a ‘‘rack and pinion’’2 design for the device
that was safer and more versatile than its predecessor,
as it allowed the blades to be reversed more efficiently
and prevented them from disengaging. Rather than uti-
lizing a single central shaft on which all of the blades
rotated, this second design utilized two geared shafts
running through the cage, with three blades affixed to
each of them on geared teeth. Lyons explained that the
‘‘blades had slots that had teeth that would mesh with
the pinions. And, again, when you rotated the pinions,
that would engage the rack and rotate the blades. . . .
One [pinion] would rotate the three . . . blades in one
direction . . . and the other pinion would rotate the
blades in the opposite direction.’’ From December,
2004, to May, 2005, MDS prepared and modified several
digital design files for the device using the rack and
pinion concept. Eventually, MDS produced a prototype
of the rack and pinion design, which it gave to Aferzon
no later than October, 2005. According to Lyons and
Young, they spent nearly 100 hours working on Afer-
zon’s idea.
In the meantime, Aferzon became dissatisfied with
MDS’s work and continued to work on development of
the device on his own without informing MDS that he
was doing so. Aferzon never communicated to MDS
that he was dissatisfied with their prototype. Aferzon
began to work on the device with his talented sixteen
year old son, Joshua Aferzon, who was then taking a
CAD class in school, on different blade designs and a
mechanism to rotate the blades within the cage. Ulti-
mately, on December 22, 2005, three months after the
provisional patent based on his initial design sketches
had expired in September, 2005, Aferzon applied for a
patent on the device he and his son had been working
on. This application, which was filed in the names of
Aferzon and his son, described the subject matter of
the proposed patent as an ‘‘apparatus and method for
anterior intervertebral spinal fixation and fusion.’’
On February 26, 2006, Aferzon wrote to Lyons, seek-
ing to amend his agreement with MDS: ‘‘I respectfully
request that we amend the agreement dated November
[4], 2004 . . . . As of the date of this letter there has
not been sufficient progress on this project to warrant
the continuation of this agreement. I understand that
both parties have invested time and resources into this
project and I am proposing that we determine a fair
market value for the services that were provided by
you.’’ Lyons did not respond to this letter in writing, but
he believed that he spoke with Aferzon about the letter.
In July, 2007, Aferzon and Bash formed and incorpo-
rated ISI. The two were equal owners of the company
and agreed to split any income it generated equally
between them. On February 27, 2008, and again in May,
2008, Lyons e-mailed Aferzon to request an update on
the project. His first e-mail stated: ‘‘It’s been some time
since the last activity with the cage. Have you aban-
doned? If so, I would consider a buyout. If not, let’s
discuss next steps.’’ His second e-mail stated: ‘‘Would
you consider selling your percentage of the subject
device? We have not seen any activity and would like
to continue developing.’’ Aferzon did not respond to
either e-mail. In the same month that Lyons sent his
second e-mail, however, on May 9, 2008, Aferzon and his
son assigned their ownership interest in their pending
patent application to ISI without informing the plaintiff
of their actions.
Because Aferzon and Bash were busy with their medi-
cal practices, they began to seek a business and engi-
neering partner to help ISI bring their anterior spinal
fusion device to market. On May 29, 2009, Aferzon and
his son received notice that their application for a patent
on that device, which had been assigned to ISI, had
been approved by the patent office and would shortly
issue. Thereafter, on June 19, 2009, ISI entered into
a cross license agreement with Alphatec Spine, Inc.
(Alphatec), a medical device manufacturer, which
allowed Alphatec to develop and sell any medical
devices that, in the absence of the license agreement,
would ‘‘infringe a [v]alid [c]laim of the [l]icensed ISI
[p]atents.’’ In exchange, ISI would receive an initial
payment of 260,000 shares of Alphatec common stock
and quarterly minimum royalty payments, a percentage
of royalty payments over the minimum, and certain
milestone payments triggered by aggregate sales fig-
ures. This was the only license agreement between ISI
and Alphatec. On September 29, 2009, the patent office
issued patent number 7,594,932 on an ‘‘apparatus for
anterior intervertebral spinal fixation and fusion,’’ list-
ing Aferzon and his son as its inventors and ISI as their
assignee.
After the patent was cross licensed to Alphatec, Afer-
zon and Bash worked with Alphatec to develop a spinal
fusion device based on the patented design with the
trade name ‘‘Solus,’’ which Alphatec began marketing
in 2011. Pursuant to the royalty schedule in the cross
license agreement, Alphatec sent ISI a series of thirty-
four distinct royalty payments between June, 2010, and
August, 2019, including the initial payment in shares
of Alphatec common stock. In addition to the royalty
payments, Alphatec also sent ISI a payment of $50,000
that was intended to reimburse it for expenses it had
incurred in developing and patenting the anterior spinal
fusion device. These payments, including the cash value
of the initial payment in Alphatec common stock and the
expense reimbursement payment, totaled $3,274,578.3
The defendants never notified the plaintiff that they
had received any compensation for the sale and/or
licensing of their anterior spinal fusion device.
In late summer or early fall of 2017, the plaintiff
eventually became aware that Aferzon had developed
a spinal fusion device that had been patented, assigned,
marketed and become profitable, when Lyons visited
his physical therapist in Middletown, whose practice
was adjacent to Bash’s office. The physical therapist
told Lyons during that visit that Bash had been traveling
and teaching surgeons how to use a successful medical
device. Lyons knew that Aferzon and Bash had worked
together previously on the original spinal fusion device
that was the subject of Aferzon’s agreement with MDS.
Notice of Bash’s involvement in teaching the use of a
similar device prompted the plaintiff to retain counsel.
The plaintiff’s counsel sent letters to Aferzon on Novem-
ber 24, 2017, and February 6, 2018, requesting that Afer-
zon inform the plaintiff if he had sold or licensed the
device on which MDS had been working, whether he
had received any compensation for the device, and if
he owned any intellectual property associated with the
device. Aferzon did not respond to either letter.
The plaintiff commenced this action on July 16, 2018,
and filed its initial complaint in the Superior Court on
July 19, 2018. Thereafter, in its operative substitute com-
plaint dated March 6, 2019, the plaintiff asserted claims
against the defendants of breach of contract and unfair
trade practices in violation of CUTPA. The defendants
filed their answer and special defenses to the operative
complaint on April 5, 2019, denying the plaintiff’s mate-
rial allegations against them and asserting various spe-
cial defenses, including that the plaintiff’s claims were
barred by applicable statutes of limitations.4 Ultimately,
on October 22, 2019, the plaintiff replied to the defen-
dants’ special defenses by denying them and pleading,
in avoidance of the defendants’ statutes of limitations
defenses, that neither of its claims was barred by an
applicable statute of limitations because the running of
all statutes of limitations had been tolled under the
fraudulent concealment doctrine and/or the continuing
course of conduct doctrine.
In the meantime, on June 13, 2019, the plaintiff filed
an application for a prejudgment remedy. The court
held an initial evidentiary hearing on the application
for a prejudgment remedy on September 18, 2019.
Thereafter, however, on November 12, 2019, the parties
agreed to convert the prejudgment remedy hearing into
a full bench trial on the merits of the parties’ claims
and special defenses, and thus to continue with the
presentation of evidence. The trial took place over the
course of seven days, including the initial day of evi-
dence at the prejudgment remedy hearing, and ended
with the presentation of closing arguments on March
6, 2020.
The court issued its memorandum of decision on
April 22, 2020, rendering partial judgment for the plain-
tiff on both of its claims. On the plaintiff’s breach of
contract claim, the court awarded $1,587,289 in expec-
tation damages and $475,813.80 in statutory prejudg-
ment interest through May 4, 2020, pursuant to General
Statutes § 37-3a. On the plaintiff’s CUTPA claim, the court
declined to award either punitive damages or additional
expectation damages but ruled that the plaintiff was
nonetheless entitled to recover its attorney’s fees in an
amount to be determined at a later date.
In reaching its decision, the court first considered
whether the parties had entered into an enforceable
contract. The court concluded that the agreement
embodied in the document signed by Lyons and Aferzon
on November 4, 2004, as supplemented by their contem-
poraneous oral agreement as to the plaintiff’s obliga-
tions under the agreement, was sufficiently definite to
form a binding contract between them, as there was
nothing conditional in that agreement, so supplemented.
After confirming the existence of a contract, the court
considered whether the patented anterior spinal fusion
device that the defendants cross licensed to Alphatec
was a ‘‘version’’ of the device that MDS had worked on
pursuant to the November 4, 2004 agreement, in which
case MDS would be entitled to receive 50 percent of all
compensation resulting from the sale and/or licensing
of the patented device. The defendants made three argu-
ments on this issue: (1) that the patented device was
not a version of the device that MDS had worked on
pursuant to the parties’ compensation-sharing agree-
ment of November 4, 2004, (2) that the compensation so
generated was paid to ISI, not to Aferzon, so it was not
subject to sharing with the plaintiff under the November
4, 2004 agreement, and (3) that substantial expenses
incurred by the defendants to develop the patented
device significantly reduced the profits generated by
the sale and/or licensing of that device.5 The court first
found that the patented device was a version of the
device for which MDS had created design drawings and
a prototype for Aferzon. As to the second argument,
the court found that ISI was founded as part of an
‘‘intentional plan to try to avoid liability to MDS in bad
faith,’’ and thus that ISI was liable to MDS under the
doctrine of successor liability. Finally, the court found
that, although the defendants’ account of the expenses
they had incurred for development of the patented
device generally was not credible, they credibly estab-
lished that the initial $50,000 payment that ISI received
from Alphatec on October 1, 2009, was not compensa-
tion resulting from the sale and/or licensing of the pat-
ented device but a reimbursement for development
expenses that they had incurred to obtain the patent
for that device.6 The court thus ruled that the plaintiff
was not entitled to recover 50 percent of that $50,000
reimbursement payment as damages for breach of the
agreement. Accordingly, the court ruled that the plain-
tiff was entitled to recover 50 percent of all payments
that ISI had received from Alphatec except for the
$50,000 reimbursement payment.
The court next considered whether the plaintiff’s
claims were barred by applicable statutes of limita-
tions.7 Because the defendants had received compensa-
tion from Alphatec resulting from the sale and/or licens-
ing of the patented device from 2010 to 2019, but the
plaintiff did not learn that it had a valid cause of action
against the defendants for their failure to share such
compensation with it until 2017, the statute of limita-
tions could have had a significant impact on the plain-
tiff’s recovery in this case. Concluding, however, that
the running of any applicable statute of limitations had
been tolled by both the fraudulent concealment doc-
trine and the continuing course of conduct doctrine,
the court rejected the defendants’ statute of limitations
defense to the plaintiff’s breach of contract claim with-
out determining whether the three year or six year
statute of limitations for contract actions applied to
that claim. Accordingly, it concluded that the plaintiff
was entitled to recover 50 percent of all thirty-four
royalty payments that ISI had received from Alphatec
from 2010 through 2019, including the initial payment
in shares of Alphatec stock.
The court thus awarded the plaintiff $1,587,289 in
expectation damages on its breach of contract claim
plus $475,813.80 in prejudgment interest pursuant to
§ 37-3a, calculated for each unshared royalty payment
at the rate of 4.5 percent per year on the plaintiff’s
50 percent share of that payment, from the date the
defendants received the unshared payment until May
4, 2020.8
The plaintiff also made claims for expectation dam-
ages, punitive damages, and attorney’s fees and expenses
under CUTPA. Although the court found that the defen-
dants’ repeated breaches of their contract with the
plaintiff had been committed in bad faith, and thus
constituted unfair trade practices in violation of
CUTPA, it declined to award the plaintiff either punitive
damages or additional expectation damages on the
basis of such violations. Instead, it limited the plaintiff’s
right of recovery under CUTPA to the attorney’s fees
and expenses it reasonably incurred in prosecuting
those claims, as authorized by General Statutes § 42-
110g, in an amount to be determined at a later time.9
On September 15, 2020, the court awarded the plaintiff
$756,000 in attorney’s fees and expenses. Finally, on
September 21, 2020, the court rendered final judgment
for the plaintiff after extending the end date for the
calculation of prejudgment interest to that date, and
recalculating the total amount of such prejudgment
interest as $504,054. The court also determined that the
plaintiff was entitled to recover postjudgment interest
but reserved decision as to the amount of such interest
until a later time.
Additionally, on October 10, 2019, before the parties
agreed to convert the prejudgment remedy hearing into
a full scale bench trial on the merits of their claims and
special defenses, the plaintiff filed a unified offer of
compromise pursuant to General Statutes § 52-192a,
offering to settle its claims against the defendants for
$1,150,000. The defendants did not accept the offer.
Accordingly, the court awarded the plaintiff offer of
compromise interest of $90,968, a much lesser amount
than the plaintiff claims it was statutorily entitled to in
this case. The plaintiff has cross appealed from the
court’s judgment challenging the amount of the court’s
offer of compromise interest award. In the end, the
court rendered final judgment for the plaintiff in the
total amount of $2,938,311.
This appeal followed. Additional facts will be set forth
as necessary.
I
THE DEFENDANTS’ APPEAL
A
We first address the court’s conclusion that the par-
ties had an enforceable contract. The defendants argue
that the written agreement signed by the parties was
indefinite and that the court improperly used parol evi-
dence to supplement its essential terms to form a con-
tract. The plaintiff argues that the parol evidence rule
does not apply to the written portion of the parties’
agreement standing alone, and thus that it was not
improper for the court to consider extrinsic oral evi-
dence in interpreting it. We agree with the plaintiff.
As a preliminary matter, we set forth our standard
of review. ‘‘The existence of a contract is a question of
fact to be determined by the trier on the basis of all of
the evidence. . . . To the extent that the trial court has
made findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. . . . 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.
. . . In making this determination, every reasonable
presumption must be given in favor of the trial court’s
ruling.’’ (Internal quotation marks omitted.) Tsionis v.
Martens, 116 Conn. App. 568, 576, 976 A.2d 53 (2009).
The following additional facts and procedural history
are relevant to this issue. The court found that part of
the contract between the parties was in writing and
part of it was oral. The only part that was written was
encapsulated in the document signed on November 4,
2004, which provided, in part, that ‘‘[a]ny development,
funding or financial commitments required will be part
of a separate agreement and negotiated at a later date.’’
In light of the previously quoted language, the defen-
dants argued before the court that the parties ‘‘merely
agreed to make a contract at some future date and that
there was nothing definite enough between them to
call a contract, especially because there was only an
agreement to agree later about financial commitments.’’
The court first rejected the defendants’ argument that
the document was only an ‘‘agreement to agree,’’ finding
that there was nothing conditional in the language of
the agreement. The court next found that the essential
terms of the agreement, that the plaintiff would create
drawings and a prototype of the device and the defen-
dants would pay the plaintiff 50 percent of the total
compensation resulting from the sale and/or licensing
of the device, were in fact agreed to on November
4, 2004, although the agreement as to the plaintiff’s
obligations was developed orally. There was substantial
dispute over what the plaintiff’s obligations were under
the agreement, but the court credited the testimony of
Lyons and Young over that of Aferzon. Thus, the court
relied both on the writing signed by Lyons and Aferzon,
and on the contemporaneous oral agreement between
the parties as described by Lyons and Young as the
basis for finding that the parties had formed a binding
contract for MDS to build a prototype of Aferzon’s
device in exchange for 50 percent of all compensation
received by Aferzon for the sale and/or licensing of that
device or any version thereof. The court held that ‘‘the
failure to provide specific terms about future financial
commitments wasn’t an essential term whose absence
defeats the very existence of a contract for lack of
definiteness.’’
1
We begin with the defendants’ claim that the court
improperly considered parol evidence in determining
whether, and on what terms, the parties reached a defi-
nite, enforceable contractual agreement. The plaintiff
argues that, because the agreement was not integrated,
the parol evidence rule did not apply. We agree with
the plaintiff.
‘‘Because the parol evidence rule is not an exclusion-
ary rule of evidence . . . but a rule of substantive con-
tract law . . . the defendants’ claim involves a ques-
tion of law to which we afford plenary review.’’ (Internal
quotation marks omitted.) Colliers, Dow & Condon, Inc.
v. Schwartz, 77 Conn. App. 462, 466, 823 A.2d 438 (2003).
‘‘The parol evidence rule is premised upon the idea
that when the parties have deliberately put their engage-
ments into writing, in such terms as import a legal
obligation, without any uncertainty as to the object or
extent of such engagement, it is conclusively presumed,
that the whole engagement of the parties, and the extent
and manner of their understanding, was reduced to
writing. After this, to permit oral testimony, or prior or
contemporaneous conversation, or circumstances, or
usages [etc.], in order to learn what was intended, or
to contradict what is written, would be dangerous and
unjust in the extreme. . . . The parol evidence rule
does not of itself, therefore, forbid the presentation of
parol evidence, that is, evidence outside the four cor-
ners of the contract concerning matters governed by
an integrated contract, but forbids only the use of such
evidence to vary or contradict the terms of such a con-
tract.’’ (Internal quotation marks omitted.) Ravenswood
Construction, LLC v. F. L. Merritt, Inc., 105 Conn. App.
7, 14–15, 936 A.2d 679 (2007).
‘‘Parol evidence offered solely to vary or contradict
the written terms of an integrated contract is, therefore,
legally irrelevant. When offered for that purpose, it is
inadmissible not because it is parol evidence, but
because it is irrelevant. By implication, such evidence
may still be admissible if relevant (1) to explain an
ambiguity appearing in the instrument; (2) to prove a
collateral oral agreement which does not vary the terms
of the writing; (3) to add a missing term in a writing
which indicates on its face that it does not set forth
the complete agreement; or (4) to show mistake or
fraud. . . . These recognized exceptions are, of
course, only examples of situations [in which] the evi-
dence (1) does not vary or contradict the contract’s
terms, or (2) may be considered because the contract
has been shown not to be integrated; or (3) tends to
show that the contract should be defeated or altered
on the equitable ground that relief can be had against
any deed or contract in writing founded in mistake or
fraud.’’ (Internal quotation marks omitted.) Schilberg
Integrated Metals Corp. v. Continental Casualty Co.,
263 Conn. 245, 277–78, 819 A.2d 773 (2003).
We first note that the court did not provide a justifica-
tion for its consideration of extrinsic oral evidence
because the defendants did not explicitly raise the parol
evidence rule at trial, instead arguing primarily that the
agreement was not binding in the first place. This does
not preclude us from reviewing the issue. See Heaven
v. Timber Hill, LLC, 96 Conn. App. 294, 308, 900 A.2d
560 (2006) (‘‘[t]he parol evidence rule . . . prohibits
the introduction of evidence that varies or contradicts
an exclusive written agreement whether or not there
is an objection’’ (internal quotation marks omitted)).
It was permissible for the court to look to extrinsic
evidence because the November 4, 2004 agreement was
not integrated. ‘‘In order for the bar against the introduc-
tion of extrinsic evidence to apply, the writing at issue
must be integrated, that is, it must have been intended
by the parties to contain the whole agreement . . . .’’
(Citation omitted; internal quotation marks omitted.)
Tallmadge Bros., Inc. v. Iroquois Gas Transmission
System, L.P., 252 Conn. 479, 503, 746 A.2d 1277 (2000);
see 11 R. Lord, Williston on Contracts (4th Ed. May,
2021) § 33:14 (‘‘The parol evidence rule applies only
when the parties integrate their agreement, that is, when
they mutually consent to a certain writing or writings
as the final statement of the agreement or contract
between them. . . . Only when an integrated contract
exists and its meaning differs from extrinsic evidence
offered by one of the parties does the parol evidence
rule come into play.’’ (Footnotes omitted.)).
‘‘Whether the written contract was actually the final
repository of the oral agreements and dealings between
the parties depends on their intention, evidence as to
which is sought in the conduct and language of the
parties and the surrounding circumstances. If the evi-
dence leads to the conclusion that the parties intended
the written contracts to contain the whole agreement,
evidence of oral agreements is excluded, that is,
excluded from consideration in the determination of
the rights and obligations of the litigants, even though
it is admitted on the issue of their intention. . . . A
written agreement is integrated and operates to exclude
evidence of the alleged extrinsic negotiation if the sub-
ject matter of the latter is mentioned, covered or dealt
with in the writing . . . if it is not, then probably the
writing was not intended to embody that element . . . .
If the evidence, however, does not indicate that the
writing is intended as an integration, i.e., a final expres-
sion of one or more terms of an agreement . . . then
the agreement is said to be unintegrated, and the parol
evidence rule does not apply.’’ (Citations omitted; inter-
nal quotation marks omitted.) Associated Catalog Mer-
chandisers, Inc. v. Chagnon, 210 Conn. 734, 739–40,
557 A.2d 525 (1989).
The written portion of the November 4, 2004 agree-
ment, which includes no obligation on the part of the
plaintiff and explicitly states that another agreement
will be negotiated, is clearly not a final repository of
the parties’ dealings. The agreement itself demonstrates
that the parties did not intend for it to ‘‘completely
embody the contract between the parties.’’ 11 R. Lord,
supra, § 33:15. The defendants argue that integration
must be assessed on an issue-by-issue basis and that
the agreement was ‘‘integrated with respect to the issue
of [the plaintiff’s] development commitments insofar
as it provides that those commitments would be the
subject of a separate agreement to be negotiated at a
later date.’’ The defendants rely on language from Cohn
v. Dunn, 111 Conn. 342, 149 A. 851 (1930), stating that,
if a ‘‘particular element of the alleged extrinsic negotia-
tion’’ is ‘‘mentioned, covered, or dealt with in the writ-
ing, then presumably the writing was meant to represent
all of the transactions on that element . . . .’’ (Internal
quotation marks omitted.) Id., 347; see also Associated
Catalog Merchandisers, Inc. v. Chagnon, supra, 210
Conn. 740. But, in the present case, the ‘‘particular ele-
ment of the alleged extrinsic negotiation’’ that the court
relied on was that the plaintiff ‘‘was to create drawings
and a prototype as a part [of] an effort to prove the
concept . . . .’’ Again, the agreement states that ‘‘[a]ny
development, funding or financial commitments required
will be part of a separate agreement and negotiated at
a later date.’’ It cannot be said that the agreement was
integrated as to the plaintiff’s obligations when the sen-
tence in question does not mention the plaintiff but
merely that any development commitments will be
negotiated at a later date.
The defendants also argue that the extrinsic evidence
indicating that on the same day that the parties signed
the written agreement they orally decided what the
plaintiff’s obligation would be thereunder varies from or
contradicts the provision stating that such an agreement
would be negotiated at a later date, and thus violates
the parol evidence rule. That prohibition, however, only
applies if the document is integrated. See Weiss v.
Smulders, 313 Conn. 227, 249, 96 A.3d 1175 (2014)
(explaining that parol evidence rule forbids only use of
evidence outside four corners of integrated contract
‘‘ ‘to vary or contradict the terms of such a contract’ ’’).
Because the document was not integrated, the court did
not err in considering extrinsic evidence to determine
whether there was a contract and, if so, what the parties’
obligations were agreed to be thereunder.
2
Having concluded that it was not improper for the
court to consider extrinsic oral evidence when
determining if the parties entered into an enforceable
contract, we next consider the correctness of the court’s
substantive conclusion that the parties’ written agree-
ment and contemporaneous oral agreement amounted
to an enforceable contract.
‘‘In order for an enforceable contract to exist, the
court must find that the parties’ minds had truly met.
. . . If there has been a misunderstanding between the
parties, or a misapprehension by one or both so that
their minds have never met, no contract has been
entered into by them and the court will not make for
them a contract which they themselves did not make.’’
(Internal quotation marks omitted.) Tsionis v. Martens,
supra, 116 Conn. App. 577. ‘‘Under established princi-
ples of contract law, an agreement must be definite and
certain as to its terms and requirements. . . . [W]here
the memorandum appears [to be] no more than a state-
ment of some of the essential features of a proposed
contract and not a complete statement of all the essen-
tial terms, the plaintiff has failed to prove the existence
of an agreement.’’ (Citations omitted; internal quotation
marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn.
33, 51, 873 A.2d 929 (2005). ‘‘So long as any essential
matters are left open for further consideration, the con-
tract is not complete.’’ (Internal quotation marks omit-
ted.) L & R Realty v. Connecticut National Bank, 53
Conn. App. 524, 535, 732 A.2d 181, cert. denied, 250
Conn. 901, 734 A.2d 984 (1999). Additionally, we reiter-
ate that our review is limited to deciding whether the
court’s findings of fact were clearly erroneous. See, e.g.,
Tsionis v. Martens, supra, 576.
The defendants argue that the November 4, 2004
agreement was ‘‘indefinite on its face’’ as to an essential
term, the plaintiff’s obligations, and that the document
was never finalized into an enforceable agreement. We
have already concluded, however, that it was permissi-
ble for the court to look beyond the face of the docu-
ment when making this determination, and the court’s
conclusion that the parties had a contract was premised
on a factual finding that the plaintiff’s obligations were
orally agreed to on the same date that the document
was signed. There is ample support in the record for
this factual finding in the testimony of Lyons. The extent
to which the parties agreed on the plaintiff’s obligation
was disputed at trial, but the court’s factual finding that
there was an agreement between them was based on
a determination that the plaintiff’s version of events
was more credible than the defendants’ version. ‘‘It is
well established that [t]his court will not revisit credibil-
ity determinations. . . . The court was entitled, in its
role as sole arbiter of credibility to discredit the [defen-
dants’ testimony].’’ (Citation omitted; internal quotation
marks omitted.) Sapper v. Sapper, 109 Conn. App. 99,
108–109, 951 A.2d 5 (2008). Thus, in light of the court’s
credibility findings, we cannot conclude that the court’s
subsequent finding that the essential contract terms
were agreed to on November 4, 2004, was clearly errone-
ous. The court appropriately concluded that the parties
had an enforceable contract.
B
We next address the court’s conclusion that the pat-
ented device was a version of the device depicted in
Aferzon’s initial design sketches, thus entitling the
plaintiff to 50 percent of all compensation resulting
from the sale and/or licensing of that device. The defen-
dants argue that the court misinterpreted the contract
by disregarding important contractual language in it
and failing to conduct an appropriate analysis under
federal patent law. The plaintiff argues, in response,
that the court properly analyzed the contractual lan-
guage and that no analysis under federal patent law
was necessary. We agree with the plaintiff.
We begin by setting forth the standard of review and
legal principles relevant to this claim. ‘‘The standard
of review for the interpretation of a contract is well
established. Although ordinarily the question of con-
tract interpretation, being a question of the parties’
intent, is a question of fact [subject to the clearly errone-
ous standard of review] . . . [when] there is definitive
contract language, the determination of what the parties
intended by their . . . commitments is a question of
law [over which our review is plenary].’’ (Internal quota-
tion marks omitted.) Joseph General Contracting, Inc.
v. Couto, 317 Conn. 565, 575, 119 A.3d 570 (2015).
The defendants do not challenge any of the court’s
factual findings on this matter or the court’s ultimate
determination that the defendants breached that agree-
ment, which would be reviewed for clear error. See,
e.g., Efthimiou v. Smith, 268 Conn. 487, 493–94, 846
A.2d 216 (2004). Instead, the defendants challenge only
the manner in which the court interpreted the con-
tract.10 In light of the fact that the defendants’ claim
is largely directed at the court’s interpretation of the
agreement, as opposed to the court’s factual findings,
‘‘our review is plenary and we must decide whether its
conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Sun Val, LLC v. Commis-
sioner of Transportation, 330 Conn. 316, 325–26, 193
A.3d 1192 (2018). Additionally, a plenary standard of
review is appropriate in light of the fact that neither
party has argued that the contractual language at issue
is ambiguous. Nationwide Mutual Ins. Co. v. Allen, 83
Conn. App. 526, 537, 850 A.2d 1047 (explaining that, ‘‘in
the absence of a claim of ambiguity, the interpretation
of [a] contract presents a question of law’’), cert. denied,
271 Conn. 907, 859 A.2d 562 (2004).
‘‘It is the general rule that a contract is to be interpre-
ted according to the intent expressed in its language
and not by an intent the court may believe existed in
the minds of the parties.’’ (Internal quotation marks
omitted.) Bank of Boston Connecticut v. Scott Real
Estate, Inc., 40 Conn. App. 616, 621, 673 A.2d 558, cert.
denied, 237 Conn. 912, 675 A.2d 884 (1996). ‘‘A contract
is to be construed as a whole and all relevant provisions
will be considered together. . . . In giving meaning to
the terms of a contract, we have said that a contract
must be construed to effectuate the intent of the con-
tracting parties. . . . The intention of the parties to a
contract is to be determined from the language used
interpreted in the light of the situation of the parties
and the circumstances connected with the transaction.
. . . In interpreting contract items, we have repeatedly
stated that the intent of the parties is to be ascertained
by a fair and reasonable construction of the written
words and that the language used must be accorded
its common, natural, and ordinary meaning and usage
where it can be sensibly applied to the subject matter of
the contract. . . . Where the language of the contract
is clear and unambiguous, the contract is to be given
effect according to its terms. A court will not torture
words to import ambiguity where the ordinary meaning
leaves no room for ambiguity . . . . Similarly, any
ambiguity in a contract must emanate from the language
used in the contract rather than from one party’s subjec-
tive perception of the terms.’’ (Citation omitted; internal
quotation marks omitted.) HLO Land Ownership Asso-
ciates Ltd. Partnership v. Hartford, 248 Conn. 350,
356–57, 727 A.2d 1260 (1999).
The following additional facts and procedural history
are relevant to this issue. We repeat that the written
portion of the parties’ November 4, 2004 agreement, as
signed by Lyons and Aferzon, provided: ‘‘Joseph Afer-
zon (inventor/owner of above stated invention) agrees
that [MDS] will receive 50% of the total compensation
resulting from the sale and/or licensing of the above
mentioned device, versions of this device, associated
intellectual property and/or any intellectual property
developed associated with this device and/or versions
of this device. . . . This agreement is limited to the
above mentioned device, versions of this device, associ-
ated intellectual property and/or any intellectual prop-
erty developed associated with this device and/or ver-
sions of this device.’’ The defendants argued before
the court that the patented device, whose sale and/or
licensing generated all compensation that the plaintiff
claims a contractual right to share, was not covered by
the parties’ agreement.11
The court made the following factual findings before
reaching its ultimate conclusion that the patented
device was covered by the agreement: ‘‘Like the [plain-
tiff’s] prototype, the patent applied for was for an ante-
rior intervertebral spinal fixation and fusion apparatus.
The versions illustrated in the patent have a cage and
preloaded, oppositely rotating blades that the court is
convinced began with Aferzon’s crude sketch and then
bear the mark of [the plaintiff’s] work on the nature of
the cage, the shape of the blade and . . . the preloading
of those blades into the cage in substitution for Afer-
zon’s original idea of adding them to the cage later.
There are differences between the prototype and what
appears in the patent application—principally a square
actuating nut that Aferzon makes much of and may
[accurately] be [attributed] to his son—but [the court]
cannot pretend after seeing the patent drawings that
what appears in them is not—as the contract says—a
‘version’ of the same device Aferzon promised to part-
ner with [the plaintiff] on.’’
In reaching the conclusion that the patented device
was a version of the device covered by the agreement,
the court interpreted the agreement in three important
ways. First, the court concluded that the agreement was
‘‘intentionally broad,’’ and thus that it covered ‘‘related’’
devices and ‘‘the associated intellectual property with
any ‘related’ device.’’ The court then significantly based
its analysis on whether the patented device was
‘‘related’’ to the device contemplated in the agreement.
Second, the court compared Aferzon’s initial design
sketches to the drawings and figures in the patent appli-
cation. Third, the court compared the plaintiff’s proto-
type to the drawings and figures in the patent applica-
tion. Ultimately, the court concluded: ‘‘[T]his matter
all started with a crude sketch from Aferzon. Without
charge, [the plaintiff] turned that crude sketch into
drawings and a prototype that was tested on a cadaver.
That device was unquestionably an anterior interverte-
bral spinal fixation and fusion apparatus. Before any
other prototype was created, Aferzon described in a
patent application an anterior intervertebral spinal fixa-
tion and fusion apparatus that included a cage and
blades sufficiently similar to what [the plaintiff] worked
on for the court to find the device described in the
patent to be ‘related’ to the device [the plaintiff] drew
and prototyped. . . . All we have to do to see the rela-
tionship is to look at the drawings beginning with Afer-
zon’s and ending with those in the patent application
to see that they are at a minimum the same basic idea—
a sturdy cage with oppositely rotating sets of blades to
be inserted between the vertebrae. From that, you can
see that they are at least ‘related.’ ‘Related’ only means
having a ‘relation’ which itself means having ‘an aspect
or quality (such as a resemblance) that connects two
or more things or parts as being or belonging or working
together or as being of the same kind.’ The MDS proto-
type and the device described in the patent are ‘of the
same kind.’ . . . They are ‘related’ for purposes of the
agreement. And from this patent is a direct path to the
money.’’ (Footnote omitted.)
We now turn to the defendants’ arguments on appeal.
The defendants first claim that the court erred by ana-
lyzing whether the patented device was ‘‘related’’ to the
device contemplated in the agreement, arguing that the
court ‘‘inserted that term into the contract’’ and ‘‘plainly
failed to apply the actual language used by the parties
in its decision.’’ The defendants argue that the court
instead should have strictly analyzed whether the
licensed patent was ‘‘intellectual property associated
with’’ the device in Aferzon’s initial drawings or a ‘‘ver-
sion thereof.’’ (Emphasis added; internal quotation
marks omitted.) The defendants are correct that the
written portion of the agreement does not contain the
word ‘‘related,’’ but, although the court’s memorandum
of decision does not explicitly say so, we infer that the
court’s usage of that word reflects the court’s interpreta-
tion of the agreement’s operative language. We will not
presume that the court misread the contract, particu-
larly when the court elsewhere used the language of
the contract in stating that ‘‘[the court] cannot pretend
after seeing the patent drawings that what appears in
them is not—as the contract says—a ‘version’ of the
same device Aferzon promised to partner with [the
plaintiff] on.’’ (Emphasis added.)
The court’s usage of ‘‘related’’ in interpreting the con-
tract was not improper for two reasons. First, the defen-
dants make much of the dictionary definitions of ‘‘asso-
ciated’’ and ‘‘related,’’ which the court cited, arguing
that the supposedly broader definition of ‘‘related’’
tainted the analysis. ‘‘We often consult dictionaries in
interpreting contracts . . . to determine whether the
ordinary meanings of the words used therein are plain
and unambiguous, or conversely, have varying defini-
tions in common parlance.’’ (Internal quotation marks
omitted.) Nation-Bailey v. Bailey, 316 Conn. 182, 193,
112 A.3d 144 (2015). The online version of the Merriam-
Webster Dictionary that the defendants cite, however,
also defines ‘‘associated’’ as ‘‘related, connected, or
combined together.’’ (Emphasis added.) Merriam-Web-
ster Dictionary, available at https://www.merriam-web-
ster.com/dictionary/associated (last visited September
17, 2021). The print version of Merriam-Webster’s Colle-
giate Dictionary defines ‘‘associated’’12 as ‘‘to join or
connect together,’’ ‘‘to bring together or into relation-
ship in any of various intangible ways’’; (emphasis
added) Merriam-Webster’s Collegiate Dictionary (11th
Ed. 2014) p. 75; and ‘‘related’’ as ‘‘connected by reason
of an established or discoverable relation.’’ Id., p. 1050.
Random House Webster’s Unabridged Dictionary pro-
vides similar definitions, defining ‘‘associate’’ as ‘‘to
connect or bring into relation’’; (emphasis added) Ran-
dom House Webster’s Unabridged Dictionary (2d Ed.
2001) p. 126; and ‘‘related’’ as ‘‘associated; connected.’’
Id., p. 1626. We are not convinced that the ‘‘common,
natural, and ordinary meaning and usage’’ of ‘‘related’’
is significantly broader than ‘‘associated,’’ as the defen-
dants contend. See HLO Land Ownership Associates
Ltd. Partnership v. Hartford, supra, 248 Conn. 357.
Second, even if the definition of ‘‘related’’ is broader
than the definition of ‘‘associated,’’ the interpretation
of this contract is not as simple as defining the word
‘‘associated’’ and asking whether the two devices are
‘‘associated’’ with one another. The sentence in question
is clearly broader than that, covering ‘‘versions of this
device’’ and ‘‘any intellectual property developed asso-
ciated with this device and/or versions of this device.’’
The upshot of this wording is that the agreement can
cover versions of the device or intellectual property,
subsequently developed, that is associated with ver-
sions of the original device, not just directly associated
with the original device. The court’s usage of ‘‘related’’
results from a proper interpretation of this clause,
which the court accurately described as ‘‘intention-
ally broad.’’
The defendants next claim that the court improperly
relied on the drawings and figures contained in the
defendants’ patent. Specifically, the defendants argue
that it was improper for the court to determine if the
idea in the patent was ‘‘related’’ to the idea referenced
in the parties’ agreement by comparing Aferzon’s 2004
sketches to the figures in the patent application and
the subsequent patent. Instead, the defendants argue,
the court should have looked to the ‘‘claims’’ in the
patent, which is the well established standard by which
claims of patent infringement are analyzed.13 They thus
argue that ‘‘the trial court’s analysis in this respect is
legally erroneous because the intellectual property that
ISI licensed to Alphatec is not measured by the patent’s
drawings, but by its claims.’’ (Emphasis in original.) The
defendants are correct that the extent of the intellectual
property licensed to Alphatec would be measured by
the patent’s claims,14 but ‘‘a contract must be construed
to effectuate the intent of the contracting parties.’’
(Internal quotation marks omitted.) HLO Land Owner-
ship Associates Ltd. Partnership v. Hartford, supra,
248 Conn. 356. There is nothing in the parties’ agreement
that suggests that they intended that a claims analysis
be the method used to determine if a subsequent device
was a version of the original device as to which the
plaintiff was entitled to receive 50 percent of the total
compensation resulting from its sale and/or licensing.
Additionally, the scope of the patented invention and
its subsequent license to Alphatec is simply not relevant
to the analysis of whether the device is covered by the
contract. This was the only patent that ISI ever licensed
to Alphatec, and there is no question that the license
generated compensation. The determinative question is
whether the device that was patented and licensed is
a version of the 2004 device or is intellectual property
that was developed and associated with a version of
the device. The scope of the patent has no bearing on
that question. The defendants can cite to no authority,
nor have we identified any, that suggests that a state
court must resolve a contractual dispute over patent
license profits by looking to federal patent law or a
claims analysis. Lastly, we note that the court did not
rely solely upon the figures in the patent, for it men-
tioned several times what was ‘‘described’’ in the patent.
Accordingly, it was not improper for the court to deter-
mine if the devices were related by looking at the figures
in the patent.
Finally, the defendants argue that the court erred by
comparing the plaintiff’s prototype and drawings with
the figures in the patent, contending that ‘‘all of the
parties agreed that the ‘device’ referenced in the Novem-
ber 4, 2004 agreement is the one contained in Aferzon’s
hand drawings that he filed as a provisional patent
application. . . . [The plaintiff’s] drawings and proto-
types were created later and are not what the [agree-
ment] is referring to in reciting ‘this device.’ ’’ (Citations
omitted.) The defendants’ argument fails for two rea-
sons. First, the court’s decision makes clear that it con-
sidered the plaintiff’s prototype to be a link in the chain
going from the initial drawings to the Solus, but ulti-
mately the decision rested on comparing the initial
device to the patented device.15 Second, the agreement
clearly allows for consideration of the prototype. The
defendants are correct that both Lyons and Aferzon
testified that the ‘‘device’’ referenced in the agreement
is that which is depicted in Aferzon’s initial design
sketches. When the agreement states that the plaintiff
is entitled to 50 percent of the total compensation
resulting from the sale and/or licensing of the ‘‘above
mentioned device, [or] versions of this device,’’ that
portion of the agreement refers to Aferzon’s initial
design sketches. (Emphasis added.) The latter portion
of the sentence, however, covers ‘‘intellectual property
developed associated with this device and/or versions
of this device.’’ We read this portion of the agreement to
cover intellectual property developed that is associated
with versions of the device. Therefore, the court was
not limited to considering the initial device but could
also consider later versions of the initial device. The
court thus looked at the prototype as just one link in
a chain leading from the initial design sketches to the
patent: ‘‘[T]his matter all started with a crude sketch
from Aferzon. . . . [The plaintiff] turned that crude
sketch into drawings and a prototype that was tested on
a cadaver. That device was unquestionably an anterior
intervertebral spinal fixation and fusion apparatus.
Before any other prototype was created, Aferzon
described in a patent application an anterior interverte-
bral spinal fixation and fusion apparatus that included
a cage and blades sufficiently similar to what [the plain-
tiff] worked on for the court to find the device described
in the patent to be ‘related’ to the device [the plaintiff]
drew and prototyped.’’ Because the court found the
prototype to be related to Aferzon’s initial design
sketches, it was not improper for the court to consider
the prototype as part of its analysis.
We find no error in the manner in which the court
interpreted the contract, and the court’s factual finding
that the patented device is a version of the initial device
stands unchallenged. Accordingly, we conclude that the
court properly determined that the licensed patent and
the device based on it are within the scope of the agree-
ment.
C
The defendants next claim that the court improperly
concluded that any applicable statute of limitations
applicable to the plaintiff’s claims had been tolled,
allowing the plaintiff to recover 50 percent of all com-
pensation resulting from the sale and/or licensing of
the patented device, dating back to 2010. The defen-
dants argue that neither the fraudulent concealment
doctrine nor the continuing course of conduct doctrine
applies to the plaintiff’s claims as a matter of law. The
plaintiff argues that the court correctly concluded that
both doctrines apply. We agree with the defendants.
We begin by setting forth the applicable standard of
review. ‘‘Whether a particular action is barred by the
statute of limitations is a question of law to which we
apply a plenary standard of review.’’ Federal Deposit
Ins. Corp. v. Owen, 88 Conn. App. 806, 814, 873 A.2d
1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005).
The following additional facts and procedural history
are relevant to this claim. The defendants pleaded and
argued before the court that the plaintiff’s claims were
barred by applicable statutes of limitations. As the court
explained, this special defense could have had a signifi-
cant impact on the plaintiff’s right of recovery because
the defendants had first received compensation from
Alphatec for the sale and/or licensing of the patented
device as early as 2010: ‘‘As our Supreme Court
explained in [Polizos v. Nationwide Mutual Ins. Co.,
255 Conn. 601, 608–609, 767 A.2d 1202 (2001)], whatever
the limitation period is, it ordinarily begins to run, not
when the breach is discovered, but instead from the
breach itself, that is, from ‘the time when the plaintiff
first could have successfully maintained an action.’ This
poses a problem for [the plaintiff] because here, the
first breach of the agreement that could have justified
a lawsuit was in 2010, and this lawsuit wasn’t filed until
2018.’’ The court declined, however, to rule on which
statute of limitations applied to the plaintiff’s cause of
action for breach of contract on the basis of its conclu-
sion that the running of either statute would have been
tolled under either the fraudulent concealment doctrine
or the continuing course of conduct doctrine. By so
ruling, the court rejected the defendants’ special
defense under the applicable statute of limitations and
held that the plaintiff was entitled to recover damages
from the defendants for all royalty payments they had
received for the sale and/or licensing of the patented
device but had not shared with the plaintiff since the
first royalty payment was received by them in 2010. We
will address each doctrine in turn.
1
We first address the court’s conclusion that the fraud-
ulent concealment doctrine tolled the running of the
statute of limitations as to the defendants’ cause of
action for breach of contract. The fraudulent conceal-
ment doctrine is codified in General Statutes § 52-595,
which provides: ‘‘If any person, liable to an action by
another, fraudulently conceals from him the existence
of the cause of such action, such cause of action shall
be deemed to accrue against such person so liable there-
for at the time when the person entitled to sue thereon
first discovers its existence.’’
‘‘The question before us is whether the [plaintiff] [has]
adduced any credible evidence that any of the defen-
dants fraudulently concealed the existence of the [plain-
tiff’s] cause of action. To meet this burden, it was not
sufficient for the [plaintiff] to prove merely that it was
more likely than not that the defendants had concealed
the cause of action. Instead, the [plaintiff] had to prove
fraudulent concealment by the more exacting standard
of clear, precise, and unequivocal evidence. . . .
Under our case law, to prove fraudulent concealment,
the [plaintiff] [was] required to show: (1) a defendant’s
actual awareness, rather than imputed knowledge, of
the facts necessary to establish the [plaintiff’s] cause
of action; (2) that defendant’s intentional concealment
of these facts from the [plaintiff]; and (3) that defen-
dant’s concealment of the facts for the purpose of
obtaining delay on the [plaintiff’s] part in filing a com-
plaint on their cause of action.’’ (Citations omitted;
internal quotation marks omitted.) Bartone v. Robert
L. Day Co., 232 Conn. 527, 532–33, 656 A.2d 221 (1995).
‘‘[Additionally], the [defendants’] actions must have
been directed to the very point of obtaining the delay
[in filing the action] of which [the defendants] afterward
[seek] to take advantage by pleading the statute.’’ (Inter-
nal quotation marks omitted.) Carson v. Allianz Life
Ins. Co. of North America, 184 Conn. App. 318, 326,
194 A.3d 1214 (2018), cert. denied, 331 Conn. 924, 207
A.3d 27 (2019).
In concluding that the defendants had fraudulently
concealed the cause of action for breach of contract
from the plaintiff, the court first explained that the
‘‘pertinent fact here was that Aferzon was making
money on the device and not sharing it with [the plain-
tiff]. That first happened in 2010 when the ISI license
to Alphatec resulted in the transfer of shares of Alphatec
stock.’’ The court then focused on the following actions
of the defendants, which it found to constitute fraudu-
lent concealment: (1) failing to inform the plaintiff
whenever money was earned from the sale of the
device, despite their contractual duty to so inform it
under the agreement, (2) the 2006 letter that Aferzon
sent to Lyons claiming that the project was dormant
and seeking to amend the agreement, in which the court
found that Aferzon ‘‘intentionally chose, not only to
conceal the facts from [the plaintiff], but to lie about
the status of the project and put [the plaintiff] off its
guard,’’ (3) Aferzon’s failure to respond to the two
e-mails that Lyons sent to him in 2008 requesting an
update on the project, (4) Aferzon’s and Bash’s transfer
of their rights in the patent to a limited liability com-
pany, (5) and Aferzon’s failure to respond to the two
presuit letters that the plaintiff’s counsel sent to him
in 2017 and 2018.16 Ultimately, the court concluded that
‘‘[t]he key factors permitting tolling for fraudulent con-
cealment under the common law are all in place. [The
plaintiff] diligently and repeatedly tried to discover from
Aferzon—the most direct possible source—the status
of the project. Aferzon knew the pertinent fact: the
device was making money. Aferzon intentionally con-
cealed that fact from [the plaintiff]. And not only did
he conceal it, he deliberately threw [the plaintiff] off the
scent by telling [it] the project wasn’t making sufficient
progress to warrant continuing his deal with [the plain-
tiff]. The court infers from this conduct that Aferzon
was intentionally concealing this information from [the
plaintiff] so that he might postpone the reckoning of a
lawsuit for as many years as possible and, if possible,
until it was too late. . . . Tolling under the doctrine
of fraudulent concealment applies to the [plaintiff’s]
claims through the time [the plaintiff] first learned the
facts needed to support a claim.’’ (Footnote omitted.)
The trial court’s conclusion is legally erroneous for
two reasons. First, five of the six factual predicates on
which the court relied legally cannot constitute fraudu-
lent concealment because they occurred either before
the plaintiff’s cause of action accrued or after the plain-
tiff had become aware of that cause of action. To prove
fraudulent concealment, the plaintiff must demonstrate
the defendant’s actual awareness of the facts necessary
to establish the plaintiff’s cause of action and its inten-
tional concealment of these facts. See Bartone v. Robert
L. Day Co., supra, 232 Conn. 533. The court found, and
neither party has challenged, that ‘‘the first breach of
the agreement that could have justified a lawsuit was
in 2010’’ when ISI first received a royalty payment from
Alphatec in the form of a transfer of Alphatec common
stock. Aferzon’s letter in which he lied about the dor-
mancy of the project, Lyons’ two e-mails that Aferzon
failed to respond to, and Aferzon’s transfer of his patent
rights to the ISI all occurred before any breach had
occurred. The facts necessary to establish the cause of
action did not exist when those events occurred, so it
was impossible at those times for Aferzon either to
have had actual awareness of the plaintiff’s nonexistent
cause of action for breach of contract or to have inten-
tionally concealed such a cause of action from the plain-
tiff. See Flannery v. Singer Asset Finance Co., LLC,
128 Conn. App. 507, 517, 17 A.3d 509 (2011) (explaining
that merely concealing existence of wrongdoing is
insufficient to establish that defendant fraudulently
concealed existence of plaintiff’s causes of action with
intention of delaying plaintiff in commencing lawsuit),
aff’d, 312 Conn. 286, 94 A.3d 553 (2014). As for the two
presuit letters sent by the plaintiff’s counsel to Aferzon,
to which Aferzon failed to respond, the trial court
explicitly found that the plaintiff had already learned
the facts necessary to establish a cause of action for
breach of contract by the time those letters were
mailed.17 The statute of limitations can no longer be
tolled from fraudulent concealment once the plaintiff
has sufficient knowledge of the cause of action, as § 52-
595 provides that the cause of action accrues once
‘‘the person entitled to sue thereon first discovers its
existence.’’
As for the remaining factual predicate on which the
court relied as a basis for finding fraudulent conceal-
ment, that Aferzon failed to notify the plaintiff whenever
ISI received compensation resulting from the sale and/
or licensing of the patented device, such conduct merely
constituted nondisclosure, which, standing alone, can-
not establish fraudulent concealment in the absence
of a fiduciary duty. Generally, fraudulent concealment
requires a showing of affirmative acts of concealment.
See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, 89 Conn. App. 459, 478, 874 A.2d 266 (2005), aff’d,
281 Conn. 84, 912 A.2d 1019 (2007). The defendants
acknowledge that ‘‘[o]nly in the context of a fiduciary
relationship is there a possible exception where nondis-
closure may suffice.’’ (Emphasis added.) The plaintiff
describes the exception more definitively, stating that
‘‘a plaintiff may be able to prove the second ‘intentional
concealment’ element by showing that ‘a defendant
owed him a fiduciary duty and failed to disclose infor-
mation as that duty required.’ ’’ The defendants are
closer to the mark, as our Supreme Court has not held
that, in the context of a fiduciary relationship, mere
nondisclosure can satisfy the second element of fraudu-
lent concealment. See Iacurci v. Sax, 313 Conn. 786,
792 n.8, 99 A.3d 1145 (2014); Falls Church Group, Ltd.
v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 107–108,
912 A.2d 1019 (2007). In Iacurci, commenting on a trial
court’s citation to Falls Church Group, Ltd. v. Tyler,
Cooper & Alcorn, LLP, supra, 281 Conn. 107, for the
proposition that ‘‘nondisclosure is sufficient to satisfy
the second element of fraudulent concealment when
the ‘defendant has a fiduciary duty to disclose those
facts’ ’’; Iacurci v. Sax, supra, 791–92; our Supreme
Court explained its view of the controlling law as fol-
lows: ‘‘This quotation cites a proposition that has gained
general acceptance in federal cases applying Connecti-
cut law. See, e.g., Fenn v. Yale University, 283 F. Supp.
2d 615, 636–37 (D. Conn. 2003). As the trial court
acknowledged, however, this court has ‘not yet decided
whether affirmative acts of concealment are always
necessary’ to satisfy the second element of fraudulent
concealment under § 52-595. . . . Falls Church Group,
Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn.
107. The trial court nonetheless proceeded as though a
fiduciary’s mere nondisclosure, if found, could supplant
the need for evidence of acts of intentional conceal-
ment. The Appellate Court followed a similar course.
See Iacurci v. Sax, [139 Conn. App. 386, 394 n.2, 57
A.3d 736 (2012)]. We emphasize that, in Falls Church
Group, Ltd., this court only explained, in the context
of evaluating a vexatious litigation action, that a law
firm had probable cause to believe that it could assert
a fraudulent concealment claim in light of federal prece-
dent allowing fiduciary nondisclosure to substitute for
intentional concealment. Falls Church Group, Ltd. v.
Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103–105,
107–108, 112. That is, in Falls Church Group, Ltd., this
court did not actually adopt the federal approach of
allowing fiduciary nondisclosure to substitute for the
second element of a fraudulent concealment claim. Nor
do we adopt the federal approach in the present case,
as the parties have not brought it directly into dispute.
Rather, in the present case, we will assume without
deciding that a fiduciary’s nondisclosure could satisfy
the second element of fraudulent concealment for the
purpose of § 52-595.’’ (Emphasis in original.) Iacurci v.
Sax, supra, 792 n.8.
Our Supreme Court has not revisited this issue since
Iacurci. ‘‘It is axiomatic that this court, as an intermedi-
ate body, is bound by Supreme Court precedent and
[is] unable to modify it . . . . [I]t is not within our
province to reevaluate or replace those decisions.’’
(Internal quotation marks omitted.) Coyle Crete, LLC
v. Nevins, 137 Conn. App. 540, 560–61, 49 A.3d 770(2012). Accordingly, we follow our Supreme Court’s
lead and assume without deciding that a fiduciary’s
nondisclosure could satisfy the second element of
fraudulent concealment. Here, however, the trial court
never held that Aferzon owed the plaintiff a fiduciary
duty.18 In the absence of such a duty, our Supreme
Court’s guidance supports the conclusion that mere
nondisclosure paired with an ordinary contractual duty
to disclose is insufficient to establish fraudulent con-
cealment. Iacurci v. Sax, supra, 313 Conn. 792 n.8. The
plaintiff argues, however, that the ‘‘[d]efendants . . .
cite no binding authority holding that the second ele-
ment of fraudulent concealment cannot also be proven
by showing that a defendant intentionally, and for the
specific purpose of delaying a plaintiff filing a com-
plaint, violated an express contractual duty to disclose.’’
The plaintiff is correct, but our review of the case law
also confirms the contrary proposition—that no Con-
necticut court has ever found nondisclosure sufficient
to toll the statute of limitations in the absence of a
fiduciary relationship. Given that our Supreme Court
has declined to hold that nondisclosure is sufficient
even with a fiduciary duty; see Iacurci v. Sax, supra,
792 n.8; we decline to rule that violation of a contractual
duty to disclose in the absence of a fiduciary duty is
sufficient to constitute fraudulent concealment.
We stress that the statute in question tolls the statute
of limitations when a defendant ‘‘fraudulently conceals
from [the plaintiff] the existence of the cause of such
action . . . .’’ (Emphasis added.) General Statutes § 52-
595. Merriam-Webster’s Collegiate Dictionary defines
fraudulent as ‘‘characterized by, based on, or done by
fraud . . . .’’ Merriam-Webster’s Collegiate Dictionary,
supra, p. 498; Rivers v. New Britain, 288 Conn. 1, 17, 950
A.2d 1247 (2008) (explaining that we look to dictionary
definition of term to ascertain its commonly approved
meaning in statutory interpretation). Fraud is defined
as ‘‘deceit, trickery; intentional perversion of truth in
order to induce another to part with something of value
or to surrender a legal right; an act of deceiving or
misrepresenting . . . .’’ Merriam-Webster’s Collegiate
Dictionary, supra, p. 498. The defendants’ failure to
notify the plaintiff that the sale or licensing of the pat-
ented device had resulted in compensation was simply
a breach of the agreement. There is no act of deceit,
misrepresentation, or ‘‘perversion of truth’’ inherent in
such conduct. Other than the actions discussed pre-
viously, which occurred before the plaintiff’s cause of
action for breach of contract accrued, the plaintiff can
point to no evidence of additional fraudulent behavior
by the defendants other than their repeated breaches
of the agreement. Our review of the relevant case law
and statutory language leads us to conclude that, in
the absence of a fiduciary duty, there must be some
fraudulent action beyond breaching one’s contractual
duty to toll the statute of limitations. Accordingly, we
find that the court erred in concluding that the fraudu-
lent concealment doctrine applied to the defendants’
actions.
2
We next address the court’s conclusion that the con-
tinuing course of conduct doctrine applied to the defen-
dants’ actions. The defendants argue that ‘‘the repeated
breach of a contractual obligation to pay money,
whether periodically or as royalties are earned, is not
subject to the continuing course of conduct doctrine
as a matter of law.’’ The plaintiff argues that the doctrine
applies because the parties had a special relationship.
We agree with the defendants.
‘‘In certain circumstances . . . we have recognized
the applicability of the continuing course of conduct
doctrine to toll a statute of limitations. Tolling does not
enlarge the period in which to sue that is imposed by
a statute of limitations, but it operates to suspend or
interrupt its running while certain activity takes place.
. . . Consistent with that notion, [w]hen the wrong
sued upon consists of a continuing course of conduct,
the statute does not begin to run until that course of
conduct is completed.’’ (Citation omitted; internal quo-
tation marks omitted.) Flannery v. Singer Asset
Finance Co., LLC, supra, 312 Conn. 311. ‘‘[I]n order
[t]o support a finding of a continuing course of conduct
that may toll the statute of limitations there must be
evidence of the breach of a duty that remained in exis-
tence after the commission of the original wrong related
thereto. That duty must not have terminated prior to
commencement of the period allowed for bringing an
action for such a wrong. . . . Where [our Supreme
Court has] upheld a finding that a duty continued to
exist after the cessation of the act or omission relied
upon, there has been evidence of either a special rela-
tionship between the parties giving rise to such a contin-
uing duty or some later wrongful conduct of a defendant
related to the prior act. . . . Furthermore, [t]he doc-
trine of continuing course of conduct as used to toll a
statute of limitations is better suited to claims where
the situation keeps evolving after the act complained
of is complete . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) Bellemare v. Wachovia Mortgage
Corp., 94 Conn. App. 593, 608, 894 A.2d 335 (2006), aff’d,
284 Conn. 193, 931 A.2d 916 (2007).
Our Supreme Court has also recently clarified the
difference between a continuing course of conduct and
a related form of conduct called a ‘‘continuing viola-
tion.’’ The court described the difference as follows:
‘‘Although this court has on occasion used both terms
in a manner that would imply that they are interchange-
able; see, e.g., Watts v. Chittenden, [301 Conn. 575,
587, 22 A.3d 1214 (2011)]; the difference between these
theories is not simply the circumstances in which they
apply, but also the scope of recovery they afford. When
there is a continuing violation, each breach gives rise
to a new statute of limitations, and the plaintiff is enti-
tled to recover for only those breaches that occurred
within the statute of limitations. See Knight v. Colum-
bus, [19 F.3d 579, 581 (11th Cir.)] (‘[w]here a continuing
violation is found, the [plaintiff] can recover for any
violations for which the statute of limitations has not
expired’) [cert. denied, 513 U.S. 929, 115 S. Ct. 318, 130
L. Ed. 2d 280 (1994)]; see also State v. Commission
on Human Rights & Opportunities, [211 Conn. 464,
472–73, 559 A.2d 1120 (1989)]. Thus . . . the [plaintiff]
would be entitled to [recovery] only for the six year
period preceding the filing of [its] claim, as well as
prospective relief. Conversely, when there is a continu-
ing course of conduct, the accrual of the cause of action
is delayed, and the plaintiff is entitled to recover the
full extent of his or her injuries, irrespective of when
they commenced. See Handler v. Remington Arms Co.,
144 Conn. 316, 321, 130 A.2d 793 (1957) (‘[w]hen the
wrong sued upon consists of a continuing course of
conduct, the statute does not begin to run until that
course of conduct is completed’) . . . .’’ (Citations
omitted.) Bouchard v. State Employees Retirement Com-
mission, 328 Conn. 345, 374 n.14, 178 A.3d 1023 (2018).
‘‘The question of whether a party’s claim is barred
by the statute of limitations is a question of law, which
this court reviews de novo. . . . The issue, however,
of whether a party engaged in a continuing course of
conduct that tolled the running of the statute of limita-
tions is a mixed question of law and fact. . . . We defer
to the trial court’s findings of fact unless they are clearly
erroneous.’’ (Citations omitted.) Giulietti v. Giulietti,
65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258
Conn. 946, 788 A.2d 95 (2001), and cert. denied, 258
Conn. 947, 788 A.2d 96 (2001), and cert. denied sub
nom. Giulietti v. Vernon Village, Inc., 258 Conn. 947,
788 A.2d 96 (2001), and cert. denied sub nom. Vernon
Village, Inc. v. Giulietti, 258 Conn. 947, 788 A.2d 97(2001).
In concluding that the continuing course of conduct
doctrine applied in this case, the court first character-
ized the defendants’ actions as a series of distinct
breaches: ‘‘Under the contract, each time the device
made money, Aferzon had to notify [the plaintiff] and
pay it 50 percent of the total compensation. Aferzon’s
money depends on ISI’s money, which, in turn, depends
upon sales of the Alphatec Solus. As the record reflects,
those sales vary. They might even cease. But in the
meantime, Aferzon signed a contract that calls for him
to account for them when and if they come in. Indeed,
Aferzon’s duty continues into the future, and he would
commit no future breach so long as he honestly reports
and shares the income. This means that each failure
could easily be seen as its own breach with its own
limitation period running from the point at which an
installment of money was realized under the license.’’
The court then engaged in a discussion of both continu-
ing violation analysis and the continuing course of con-
duct doctrine, referring to them interchangeably,19 cit-
ing both Giulietti v. Giulietti, supra, 65 Conn. App.
813, a case concerning the continuing course of conduct
doctrine, and Bouchard v. State Employees Retirement
Commission, supra, 328 Conn. 345, a case predomi-
nantly addressing a continuing violation theory and
advising that the two theories are not interchangeable.
Although the court initially stated that ‘‘[a]pplying the
continuing violation doctrine to this case is attractive,’’
it ultimately concluded that the continuing course of
conduct doctrine applied. The court provided the fol-
lowing reasons for its application of the continuing
course of conduct doctrine: (1) the claim concerned
‘‘continued and repeated’’ wrongs, not just a onetime
violation; (2) the past wrongs are identical to more
recent wrongs, and ‘‘[t]reating them as all part of a
single continuing wrong is far more efficient than mark-
ing each missed payment and starting the clock running
anew’’; and (3) ‘‘allowing the claims to be brought now
will likely head off future breaches [because] the viola-
tions have not only been continuous, they have been
without judicial intervention and are thus likely to con-
tinue into the future unless dealt with.’’ Additionally,
the court held that Aferzon had a ‘‘specific, legally rec-
ognized duty in contract that was continuing . . . .’’ It
likened this relationship to a ‘‘special relationship’’ of
the sort that can establish a continuing duty to a party.
See Saint Bernard School of Montville, Inc. v. Bank of
America, 312 Conn. 811, 835, 95 A.3d 1063 (2014).
The court’s conclusion is legally erroneous because
the nature of the defendants’ breaches is incompatible
with the continuing course of conduct doctrine. We
look first to the definition of a continuing course of
conduct. ‘‘[I]n order [t]o support a finding of a continu-
ing course of conduct that may toll the statute of limita-
tions there must be evidence of the breach of a duty that
remained in existence after commission of the original
wrong related thereto.’’ (Emphasis added; internal quo-
tation marks omitted.) Flannery v. Singer Asset Finance
Co., LLC, supra, 128 Conn. App. 513–14. Courts have
found that such a duty continues to exist after the
original wrong where there is ‘‘some later wrongful
conduct of a defendant related to the prior act.’’ (Inter-
nal quotation marks omitted.) Bellemare v. Wachovia
Mortgage Corp., supra, 94 Conn. App. 608. Put another
way, ‘‘a precondition for the operation of the continuing
course of conduct doctrine is that the defendant must
have committed an initial wrong upon the plaintiff.
. . . A second requirement for the operation of [this
doctrine] is that there must be evidence of the breach
of a duty that remained in existence after commission of
the original wrong related thereto.’’ (Emphasis added;
internal quotation marks omitted.) Watts v. Chittenden,
supra, 301 Conn. 585.
This language suggests that a continuing course of
conduct requires both an initial wrong and a subsequent
continuing duty that are distinct from one another. In
the present case, the breach of the duty to disclose
is the initial wrong. After receiving compensation and
failing to notify the plaintiff, the duty to disclose that
compensation may continue into the future, but the
breach of that duty is the initial wrong complained of.
For example, in Sanborn v. Greenwald, 39 Conn. App.
289, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d
1186 (1995), this court summarized several cases in
which our Supreme Court upheld application of the
doctrine, identifying a distinct initial action and breach
of a subsequent duty for each: ‘‘In Blanchette v. Barrett,
[229 Conn. 256, 640 A.2d 74 (1994)], the statute of limita-
tions was tolled because of evidence that the defendant
physician had failed to satisfy his duty of monitoring
the plaintiff’s questionable breast condition. The court
considered this to be later wrongful conduct that related
to the defendant’s [initial] diagnosis of the plaintiff. Id.,
275. In Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d
952 (1981), the statute of limitations was tolled because
of the negligent failure of a physician to warn a patient
of the harmful side effects of a drug that the physician
had prescribed and that the patient had continued to
ingest over a period of time. In Giglio v. Connecticut
Light & Power Co., 180 Conn. 230, 429 A.2d 486 (1980),
the statute of limitations was tolled because the installer
of a pilot light gave repeated instructions as to its use
in response to multiple complaints by the plaintiff. In
Handler v. Remington Arms Co., supra, 144 Conn. 316,
the statute of limitations was tolled by the defendant
manufacturer’s continuing failure to warn of the poten-
tial danger associated with an inherently dangerous
cartridge of ammunition. In each of these cases, the
plaintiff’s injury was perpetuated, enhanced and even
caused by the breach of a duty on the part of the defen-
dant.’’ Sanborn v. Greenwald, supra, 296. We also note
that this court has expressed skepticism as to whether
the doctrine should ever be applied to breach of con-
tract claims: ‘‘[T]he continuing course of conduct doc-
trine is one classically applicable to causes of action
in tort, rather than in contract. The doctrine concerns
itself with ‘wrongs,’ the nomenclature of tort, not with
‘breach,’ the language of contract.’’ Fradianni v. Protec-
tive Life Ins. Co., 145 Conn. App. 90, 100 n.9, 73 A.3d
896, cert. denied, 310 Conn. 934, 79 A.3d 888 (2013).
These cases demonstrate that repeated and distinct
violations of a duty to disclose are not what is contem-
plated by the definition of a continuing course of con-
duct. ‘‘[T]he continuing course of conduct doctrine rec-
ognizes that the act or omission that commences the
limitation period may not be discrete and attributable
to a fixed point in time. [T]he doctrine is generally
applicable under circumstances where [i]t may be
impossible to pinpoint the exact date of a particular
negligent act or omission that caused injury . . . .’’
(Internal quotation marks omitted.) Essex Ins. Co. v.
William Kramer & Associates, LLC, 331 Conn. 493, 503,
205 A.3d 534 (2019). Here, the defendants repeatedly
breached the agreement, and every breach is readily
identifiable. The plaintiff entered exhibits clearly delin-
eating the date and amount of each distinct royalty
payment which the defendants received from Alphatec
without notifying the plaintiff. ‘‘[T]he continuing course
of conduct doctrine reflects the policy that, during an
ongoing relationship, lawsuits are premature because
specific tortious acts or omissions may be difficult to
identify and may yet be remedied.’’ (Internal quotation
marks omitted.) Saint Bernard School of Montville, Inc.
v. Bank of America, supra, 312 Conn. 837–38.
On the other hand, with respect to what constitutes
a continuing violation, our Supreme Court cited with
approval the following explanation: ‘‘In between the
case in which a single event gives rise to continuing
injuries and the case in which a continuous series of
events gives rise to a cumulative injury is the case in
which repeated events give rise to discrete injuries, as
in suits for lost wages. If our plaintiff were seeking
[back pay] for repeated acts of wage discrimination
(suppose that every [payday] for five years he had
received $100 less than he was entitled to), he would
not be permitted to reach back to the first by suing
within the [limitation] period for the last. . . . [In such
a case] the damages from each discrete act . . . would
be readily calculable without waiting for the entire
series of acts to end. There would be no excuse for
the delay.’’ (Citations omitted; internal quotation marks
omitted.) Watts v. Chittenden, supra, 301 Conn. 588–89.
The case at hand is akin to the latter scenario.20
In Fradianni v. Protective Life Ins. Co., supra, 145
Conn. App. 90, this court reviewed whether the continu-
ing course of conduct doctrine applied to a life insur-
ance company’s conduct in annually overcharging the
plaintiff. Citing the previously quoted passage from
Watts, this court concluded that the defendant’s actions
were more accurately characterized as a series of dis-
tinct breaches, and thus held as follows that the continu-
ing course of conduct doctrine did not apply to the
plaintiff’s claim: ‘‘The case now before us, where the
plaintiff alleges that the defendant breached the insur-
ance contract annually, at precisely identifiable
moments when it allegedly overcharged the plaintiff, is
analogous to the suit for lost wages as described [in
Watts v. Chittenden, supra, 301 Conn. 588–89]. The
plaintiff’s damages arising from the defendant’s alleged
breaches were readily calculable and actionable at the
time of breach, unlike those cases where it is the cumu-
lative effect of the defendant’s behavior that gives rise
to the injury. Simply put, the plaintiff’s allegations do
not constitute a ‘course of conduct’ by the defendant;
but instead allege a series of repeated breaches over a
period of years. Accordingly, the continuing course of
conduct doctrine is inapplicable to the present case.
We, therefore, conclude that the court properly found
that the doctrine did not serve to toll the [statute of
limitations].’’ (Footnote omitted.) Fradianni v. Protec-
tive Life Ins. Co., supra, 100. The present case, like
Fradianni, involves a series of separate breaches to
which the continuing course of conduct doctrine does
not apply because each such breach caused separate
damages that were readily calculable at the time of
breach.
Lastly, we address the court’s conclusion that the
parties had a special relationship. The existence of a
special relationship between the parties is another basis
for establishing the continuation of a duty between
them after an initial wrong has been committed. See
Bellemare v. Wachovia Mortgage Corp., supra, 94 Conn.
App. 608. The court concluded that the parties had a
special relationship because Aferzon ‘‘[had] a specific,
legally recognized duty in contract that was continuing
and required [him] to report his gains from the device
idea to [the plaintiff].’’
‘‘Our appellate courts have not defined precisely what
constitutes a special relationship for purposes of tolling
because the existence of such a relationship will depend
on the circumstances that exist between the parties
and the nature of the claim at issue. Usually, such a
special relationship is one that is built upon a fiduciary
or otherwise confidential foundation. A fiduciary or
confidential relationship is characterized by a unique
degree of trust and confidence between the parties, one
of whom has superior knowledge, skill or expertise and
is under a duty to represent the interests of the other.
. . . The superior position of the fiduciary or dominant
party affords him great opportunity for abuse of the
confidence reposed in him. . . . Fiduciaries appear in
a variety of forms, including agents, partners, lawyers,
directors, trustees, executors, receivers, bailees and
guardians. . . . The fact that one [businessperson]
trusts another and relies on [that person] to perform [his
obligations] does not rise to the level of a confidential
relationship for purposes of establishing a fiduciary
duty. . . . [N]ot all business relationships implicate the
duty of a fiduciary. . . . In the cases in which this court
has, as a matter of law, refused to recognize a fiduciary
relationship, the parties were either dealing at arm’s
length, thereby lacking a relationship of dominance and
dependence, or the parties were not engaged in a rela-
tionship of special trust and confidence. . . . Accord-
ingly, a mere contractual relationship does not create
a fiduciary or confidential relationship.’’ (Citations
omitted; internal quotation marks omitted.) Saint Ber-
nard School of Montville, Inc. v. Bank of America,
supra, 312 Conn. 835–36.
The plaintiff and Aferzon clearly were dealing with
each other at arm’s length in the course of an ordinary
contractual relationship. The court made no factual
findings indicating that the parties had a confidential
relationship or that there was a unique degree of trust
and confidence between them. The court did make find-
ings as to Aferzon’s medical background and lengthy
surgical experience, but it did not make any finding
that Aferzon had any ‘‘superior knowledge, skill or
expertise’’ as to the development of medical devices,
which is the subject of this agreement. The only justifi-
cation that the court provided for this finding was that
Aferzon had a specific and continuing duty to report
any compensation to the plaintiff, but this is merely the
contractual obligation imposed on him by the agree-
ment. Such a duty alone is insufficient to establish a
special relationship.
Because there was no evidence before the court that
would have supported a finding that a special relation-
ship existed between the parties, and Aferzon’s
breaches more accurately are characterized as a series
of distinct, readily calculable breaches of the parties’
agreement, the trial court erred in concluding that the
continuing course of conduct doctrine tolled the run-
ning of the statute of limitations.
3
Our conclusion that the trial court improperly con-
cluded that the running of the statute of limitations had
been tolled as to the plaintiff’s breach of contract claim
now raises the necessary questions of what statute of
limitations applies to that claim and to what extent
can the plaintiff recover expectation damages for the
defendants’ proven breaches of the parties’ contract.
Rather than remand these issues to the trial court for
consideration in the first instance, we review them now
on the basis of the trial court’s unchallenged factual
findings.21 We note that the record is adequate for
review of these issues, and neither determination
requires further factual development. We rely on the
court’s express factual findings, which were based on
unchallenged facts and exhibits. We address each issue
in turn.
a
We first address which statute of limitations applies
to the plaintiff’s claims. The determination of which
statute of limitations applies to an action is a question
of law over which our review is plenary. See, e.g., Pasco
Common Condominium Assn., Inc. v. Benson, 192
Conn. App. 479, 501, 218 A.3d 83 (2019).
The court stated that, ‘‘[f]or written contracts, the
limitation period is established as a six year period
. . . . For oral contracts the limitation period is estab-
lished as a three year period . . . .’’ The distinction,
however, is not that simple. All contracts have a six
year statute of limitations except for those that are both
oral and executory. ‘‘General Statutes § 52-581 provides
a three year statute of limitations for executory oral
contracts. . . . All other contracts are governed by a
six year statute of limitations pursuant to General Stat-
utes § 52-576.’’ (Citation omitted.) Mitchell v. Guardian
Systems, Inc., 72 Conn. App. 158, 161 n.3, 804 A.2d
1004, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002).
‘‘This court has addressed the distinction between
§§ 52-581 and 52-576. These two statutes, each estab-
lishing a different period of limitation, can both be inter-
preted to apply to actions on oral contracts. Our
Supreme Court has distinguished the statutes, however,
by construing § 52-581, the three year statute of limita-
tions, as applying only to executory contracts. . . . A
contract is executory when neither party has fully per-
formed its contractual obligations and is executed when
one party has fully performed its contractual obliga-
tions. . . . It is well established, therefore, that the
issue of whether a contract is oral is not dispositive of
which statute applies. Thus, the . . . argument that
§ 52-581 automatically applies to [an] oral contract
between . . . parties is incorrect. The determinative
question is whether the contract was executed.’’(Em-
phasis in original; internal quotation marks omitted.)
Bagoly v. Riccio, 102 Conn. App. 792, 799, 927 A.2d 950,
cert. denied, 284 Conn. 931, 934 A.2d 245, and cert.
denied, 284 Conn. 931, 934 A.2d 246 (2007).
The contract between the parties in the present case
is not executory, as it cannot be said that neither party
has fully performed its contractual obligations thereun-
der. There may have been some dispute as to the extent
of the plaintiff’s obligations before the trial court, but
neither party has challenged the court’s factual finding
that the plaintiff fully performed its contractual obliga-
tions thereunder. Accordingly, the six year statute of
limitations set forth in § 52-576 applies to the plaintiff’s
breach of contract claim.
b
We next address the extent of the plaintiff’s recovery
for breaches of contract occurring within the applicable
six year period of limitation.
The court characterized the defendants’ breaches as
distinct and readily calculable: ‘‘[T]his case involves a
series of breaches, not just one. . . . [E]ach failure
could easily be seen as its own breach with its own
limitation period running from the point at which an
installment of money was realized under the license.’’
As we have previously explained, such conduct consti-
tutes what our Supreme Court in Bouchard has called
a continuing violation rather than a continuing course
of conduct: ‘‘When there is a continuing violation, each
breach gives rise to a new statute of limitations, and
the plaintiff is entitled to recover for only those
breaches that occurred within the statute of limita-
tions.’’ Bouchard v. State Employees Retirement Com-
mission, supra, 328 Conn. 374 n.14. Accordingly,
determining what portion of the plaintiff’s expectation
damages, as awarded by the court, were properly
awarded to it for breaches that occurred within the six
year limitation period is a simple matter of drawing a
line six years back from the date the plaintiff com-
menced this action, adding together all payments
received by the defendants since that date from the
sale and/or licensing of the patented device, and divid-
ing that sum in half to calculate the plaintiff’s 50 percent
share of such payments. The resulting total of such
properly awarded expectation damages for breach of
contract is $996,039.97.
Service was effectuated on July 16, 2018. See Doe v.
West Hartford, 328 Conn. 172, 177 n.4, 177 A.3d 1128(2018) (‘‘[t]ypically, an action is ‘commenced,’ for pur-
poses of determining compliance with a statute of limi-
tations, when the defendant is served with a summons
and complaint’’). Thus, the plaintiff was properly
awarded its 50 percent share of all royalty payments
received by the defendants for sale and/or licensing of
the Solus as far back as July 16, 2012. The plaintiff
submitted, and the court credited the facts presented
in, plaintiff’s exhibit 16, which lists every payment ISI
received from Alphatec, after they entered into their
cross license agreement, from 2010 to 2019. For each
such payment, exhibit 16 sets forth the amount of the
payment, the date on which it was received by ISI, a
calculation of 50 percent of its total value representing
the plaintiff’s share of the payment under the parties’
agreement, and the plaintiff’s proposal for an award of
prejudgment interest under § 37-3a based on the defen-
dants’ wrongful detention of the plaintiff’s share of that
payment from the date of its receipt until May 4, 2020,
calculated at the maximum statutory rate of 10 percent
per year. These facts and figures are not in dispute.
The parties had the opportunity to challenge the court’s
adoption of the facts set forth in exhibit 16 as its basis
for awarding the plaintiff expectation damages and pre-
judgment interest at the lesser rate of 4.5 percent per
year, but neither party did so.
Starting in July, 2012, the first payment made by
Alphatec to the defendants as compensation for the
sale and/or licensing of the patented device within the
six year limitation period, was received by ISI on July 26,
2012. The plaintiff was properly awarded expectation
damages totaling 50 percent of the sum of that first
payment and of all subsequent payments of royalties
for the sale and/or licensing of the patented device that
the defendants received within the six year limitation
period. The total of all expectation damages awarded
by the court on the basis of the defendants’ failure to
pay the plaintiff its 50 percent share of all compensation
that they had received for the sale and/or licensing of
the patented device within the six year limitation period
was $996,039.97. Accordingly, the court’s judgment for
the plaintiff on its claim of breach of contract must be
adjusted downward to that amount.
This also raises the issue of whether the court appro-
priately subtracted $50,000 for development expenses
from the plaintiff’s recovery. On October 1, 2009, ISI
received a $50,000 payment from Alphatec that the
defendants claimed was reimbursement for expenses
related to acquiring the patent for the device. The court
credited the defendants’ characterization of this pay-
ment and did not allow the plaintiff to recover on it,
explaining that the contract did not contemplate recov-
ery by the plaintiff based on any payment that was not
actually a royalty payment: ‘‘[T]he evidence does show
that Alphatec denominated $50,000 of the money it paid
as an expense reimbursement. The evidence also shows
expenses that amount to nearly $50,000 for patent
related expenses incurred at a time when they were
most likely legitimate expenses associated with acquir-
ing the anterior patent. Knowing that the agreement
called for future agreement about ‘financial commit-
ments,’ the court concludes that this is a reasonable
sum for expenses under the [plaintiff’s] contract terms
and would have been part of the bargain had it been
carried out. . . . On the breach of contract claim, [the
plaintiff] is due only what it could reasonably expect
to have received under the contract. If the court were
to punish Aferzon rather than hold him as best we
can to his bargain, it would have to apply a different
standard, not ordinary damages analysis. In the mean-
time, despite problems posed by Aferzon himself, the
court’s job is to give [the plaintiff] the benefit of its
bargain. That benefit was expected to exclude required
financial commitments, and the court is convinced that,
unlike the other sums claimed, this $50,000 sum is more
likely than not a genuine expense reimbursement asso-
ciated with the anterior patent. This means [the plain-
tiff’s] expectation damages are $1,637,389 minus
$50,000 or $1,587,289.’’
The court’s foregoing explanation makes it clear that
the plaintiff requested total expectation damages of
$1,637,289 for breach of contract on the basis of the
defendants’ failure to pay it all sums listed in exhibit
16, each of which it claimed to have been its 50 percent
share of a payment received by the defendants from
Alphatec in the course of their cross license agreement.
Although the court recognized that one such listed sum,
in the amount of $25,000, was not recoverable for
breach of contract because it constituted 50 percent of
the initial $50,000 reimbursement payment, it unac-
countably included that sum in its calculation of the
plaintiff’s total expectation damages award, then sub-
tracted twice that amount—the full $50,000 reimburse-
ment payment on which it was based—from the plain-
tiff’s total award.
Whether the court erred in including the $25,000
improperly claimed by the plaintiff as unshared com-
pensation resulting from the sale and/or licensing of
the patented device or in subtracting from that award
the entire $50,000 reimbursement payment from which
that $25,000 sum was calculated, we need not make
similar modifications of the plaintiff’s adjusted award
of expectation damages to reflect what the defendants
failed to pay it under the November 4, 2004 agreement
from compensation it received within the six year limi-
tation period. The reason for this conclusion is simply
that the $50,000 reimbursement payment was received
by the defendant before that six year limitation period
began. Accordingly, there is no reason to subtract any
amount from the plaintiff’s expectation damages to
account for that payment because it is not included in
the new total to begin with. The plaintiff’s recoverable
expectation damages for breach of contract must there-
fore be reduced to $996,039.97, as previously noted, in
light of our conclusion as to the viability of the defen-
dants’ special defense under the statute of limitations.
Lastly, we must determine what portion of the pre-
judgment interest awarded to the plaintiff under § 37-
3a for the defendants’ allegedly wrongful detention of
money due and owing to the plaintiff prior to judgment
was properly based on the defendants’ actionable fail-
ure to pay the plaintiff its 50 percent share of all com-
pensation received by the defendants for the sale and/
or licensing of the patented device within the six year
limitation period. When the court made its initial award
of prejudgment interest in its memorandum of decision
of April 22, 2020, it improperly awarded interest on all
sums claimed by the plaintiff as expectation damages
for breach of contract in exhibit 16, including several
sums claimed on the basis of payments received by the
defendants outside of the six year limitation period.
The total interest so awarded must also be adjusted
downward to exclude all sums improperly awarded to
the plaintiff for the detention of moneys to which the
plaintiff did not become entitled within the six year
limitation period. The court later compounded this
error by awarding the plaintiff an additional sum of
prejudgment interest on the basis of the defendants’
further alleged detention of those same sums for an
additional 140 days beyond May 4, 2020, until final judg-
ment was rendered on September 21, 2020. That addi-
tional award of prejudgment interest must also be
reduced to exclude from it all interest improperly
awarded on the basis of the alleged detention of sums
which the plaintiff was barred from recovering by the
statute of limitations.
The total prejudgment interest properly awarded by
the court on the basis of the defendants’ wrongful deten-
tion of the plaintiff’s 50 percent shares of compensation
received for the sale and/or licensing of the patented
device within the six year limitation period must be
determined in two steps. First, as to sums properly
awarded to the plaintiff in the court’s memorandum of
decision through May 4, 2020, we need only add together
all awards of prejudgment interest on those sums, as
proposed by the plaintiff on exhibit 16 at the rate of 10
percent per year, and multiply that total by 0.45 to
refigure such interest, as the court did, at the lower
rate of 4.5 percent per year. The total of such properly
awarded interest through May 4, 2020, as included in
the larger award of interest ordered by the court in its
memorandum of decision, is $191,748.60.
Finally, we must adjust the end date for the calcula-
tion of prejudgment interest from May 4, 2020, to Sep-
tember 21, 2020, which the court did when it rendered
final judgment for the plaintiff. The court, however, did
not calculate separate awards of additional prejudg-
ment interest for each payment to which it found that
the plaintiff was entitled on the basis of the defendants’
further detention of the plaintiff’s recoverable damages
until September 21, 2020. Instead, it ordered an increase
in the total award of prejudgment interest it had pre-
viously ordered in its memorandum of decision on the
basis of the further detention of all sums requested by
the plaintiff as expectation damages, as listed in exhibit
16. To calculate what portion of that additional prejudg-
ment interest award was ordered appropriately on the
basis of the further wrongful detention of moneys to
which the plaintiff became entitled during the six year
limitation period, we must first determine what percent-
age of all expectation damages requested by the plaintiff
in exhibit 16 the plaintiff’s wrongfully withheld damages
represented. Then, we must multiply the court’s total
additional prejudgment interest award by the decimal
equivalent of that percentage to determine how much
of such additional interest was properly awarded. Here,
where the total expectation damages requested by the
plaintiff in exhibit 16 was $1,637,289.04 and the total
expectation damages lawfully claimed by the plaintiff
for the defendants’ breaches of contract within the limi-
tation period was $996,039.97, the percentage of all
requested damages which the plaintiff’s recoverable
damages represented was 60.8347 percent. By multi-
plying the court’s total award of additional prejudgment
interest, $28,240.20, by the decimal equivalent of that
percentage, 0.608347, we calculate that the additional
prejudgment interest that the court properly awarded
to the plaintiff based on the defendants’ continuing
wrongful detention of moneys recoverable by it from
May 4, 2020, to September 21, 2020, was $17,179.84.
By adding that sum to the $191,748.60 in prejudgment
interest that the court properly awarded to the plaintiff
in its memorandum of decision on the basis of the
defendants’ previous wrongful detention of those same
recoverable expectation damages until May 4, 2020, we
have determined that the court properly awarded the
plaintiff a total of $208,928.44 in prejudgment interest.
By adding that adjusted, $208,928.44 award of prejudg-
ment interest to the plaintiff’s adjusted, $996,039.97
award of expectation damages for breaches of contract
occurring within the six year limitation period for
breach of contract claims, we calculate the plaintiff’s
proper adjusted total award for breaches of contract
occurring within that limitation period as $1,204,968.41.
D
We next address whether the court appropriately
awarded the plaintiff attorney’s fees and costs under
CUTPA. The defendants argue that, because the two
tolling doctrines that the court improperly applied in
rejecting their statute of limitations defense to the plain-
tiff’s breach of contract claim are inapplicable to claims
under CUTPA, the court improperly considered evi-
dence of conduct occurring outside of the three year
statute of limitations for CUTPA claims set forth in § 42-
110g as a basis for concluding that they had violated
CUTPA. The plaintiff responds that, even if the running
of the CUTPA statute of limitations was not tolled by the
fraudulent concealment doctrine and/or the continuing
course of conduct doctrine, a substantial number of
the defendants’ bad faith breaches of contract on which
the court based its finding of a CUTPA violation
occurred within the three year CUTPA statute of limita-
tions. Although we have already found that there is
insufficient evidence to support the plaintiff’s claims
of tolling under either the fraudulent concealment doc-
trine or the continuing course of conduct doctrine, and
thus agree with the defendants that its conduct outside
of the three year limitation period cannot be found to
have constituted an actionable CUTPA violation in this
case, we agree with the plaintiff that the court’s finding
of a CUTPA violation must still be upheld on the basis
of the defendants’ proven bad faith breaches of contract
that occurred within the statute of limitations, and thus
that attorney’s fees were properly awarded to it for the
prosecution of that claim. Even so, because the court
awarded attorney’s fees for prosecution of both the
timely and the untimely portions of the plaintiff’s
CUTPA claim, we conclude that the case must be
remanded to the trial court for a determination, if possi-
ble, of what portion of such attorney’s fees were reason-
ably incurred to prosecute the timely portion of the
plaintiff’s claim.
The following additional facts and procedural history
are relevant to this claim. In reviewing the plaintiff’s
CUTPA claim, the court first concluded that the parties’
transactions were subject to CUTPA: ‘‘There can’t be
any doubt that this was a business transaction between
the parties and that [the plaintiff] came out the financial
loser. So, the real focus of inquiry here should be
whether what Aferzon did and made ISI do was culpable
enough to label an unfair trade practice.’’ The court
then concluded that Aferzon had violated CUTPA by
breaching the agreement in bad faith, and listed several
actions by him that supported its conclusion that he
had so acted: ‘‘The court believes the evidence is clear
and convincing that Aferzon breached his agreement
not prompted by an honest mistake as to his rights or
duties, but by an interested or sinister motive. Specifi-
cally, the court concludes that Aferzon knew he had
an obligation to [the plaintiff] but contrived a variety
of unscrupulous means to deprive [the plaintiff] of what
it was due. He lied to [the plaintiff] about the status of
the project. He ignored [its] requests for information. He
disregarded two demands from lawyers. He contrived
[a limited liability company] at least in part as a way
to frustrate his agreement. He fabricated expenses to
cause it to appear that the idea at issue wasn’t profitable.
He concealed his activities until the normal statute of
limitations period expired and then invoked it in his
defense.’’ The court declined to award punitive damages
or further compensatory damages for the violation but
awarded attorney’s fees under CUTPA. On September
15, 2020, the court awarded the plaintiff $756,000 in
attorney’s fees and expenses. The defendants do not
challenge the amount of the award but argue that the
award of attorney’s fees was legally erroneous.
We first set forth our standard of review. Section 42-
110g (d) provides in relevant part: ‘‘In any action
brought by a person under this section, the court may
award, to the plaintiff, in addition to the relief provided
in this section, costs and reasonable attorneys’ fees
based on the work reasonably performed by an attorney
and not on the amount of recovery. . . .’’ ‘‘Awarding
. . . attorney’s fees under CUTPA is discretionary [pur-
suant to] § 42-110g (a) and (d) . . . and the exercise
of such discretion will not ordinarily be interfered with
on appeal unless the abuse is manifest or injustice
appears to have been done. . . . The salient inquiry is
whether the court could have reasonably concluded as
it did. . . . [T]he term abuse of discretion does not
imply a bad motive or wrong purpose but merely means
that the ruling appears to have been made on untenable
grounds.’’ (Internal quotation marks omitted.) MedVa-
lUSA Health Programs, Inc. v. MemberWorks, Inc., 109
Conn. App. 308, 315, 951 A.2d 26 (2008).
Because a finding of liability under CUTPA is a neces-
sary prerequisite to an award of attorney’s fees under
CUTPA, we also set forth the applicable standard of
review for a finding that a defendant violated CUTPA.
See Winakor v. Savalle, 198 Conn. App. 792, 811, 234
A.3d 1122 (‘‘[g]iven our conclusion that the defendant
did not violate CUTPA, there is no basis for the plain-
tiff’s recovery of any attorney’s fees in the present
case’’), cert. granted, 335 Conn. 958, 239 A.3d 319 (2020).
Section 42-110g (a) provides in relevant part: ‘‘Any per-
son 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 prohibited by
[§] 42-110b, may bring an action . . . to recover actual
damages. . . .’’ In other words, ‘‘CUTPA provides that
[n]o person shall engage in unfair methods of competi-
tion and unfair or deceptive acts or practices in the
conduct of any trade or commerce.’’ (Internal quotation
marks omitted.) Landmark Investment Group, LLC v.
Chung Family Realty Partnership, LLC, 125 Conn.
App. 678, 699, 10 A.3d 61 (2010), cert. denied, 300 Conn.
914, 13 A.3d 1100 (2011).
‘‘It is well settled that in determining whether a prac-
tice violates CUTPA we have adopted the criteria set
out in the cigarette rule by the [F]ederal [T]rade [C]om-
mission for determining when a practice is unfair: (1)
[W]hether the practice, without necessarily having been
previously considered unlawful, offends public policy
as it has been established by statutes, the common law,
or otherwise—in other words, it is within at least the
penumbra of some common law, statutory, or other
established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; (3)
whether it causes substantial injury to consumers,
[competitors or other businesspersons] . . . . All
three criteria do not need to be satisfied to support a
finding of unfairness. A practice may be unfair because
of the degree to which it meets one of the criteria or
because to a lesser extent it meets all three. . . . To
the extent that [an appellant] is challenging the trial
court’s interpretation of CUTPA, our review is plenary.
. . . [W]e review the trial court’s factual findings under
a clearly erroneous standard.’’ (Citation omitted; inter-
nal quotation marks omitted.) National Waste Associ-
ates, LLC v. Scharf, 183 Conn. App. 734, 751, 194 A.3d
1 (2018). ‘‘[W]hether a defendant’s acts constitute . . .
deceptive or unfair trade practices under CUTPA, is a
question of fact for the trier, to which, on appellate
review, we accord our customary deference.’’ (Internal
quotation marks omitted.) Landmark Investment
Group, LLC v. Chung Family Realty Partnership, LLC,
supra, 125 Conn. App. 699.
The defendants are correct that the court engaged
in no discussion of whether a statute of limitations
applied to the plaintiff’s CUTPA claim. Rather, when it
discussed fraudulent concealment and continuing
course of conduct, the court generally concluded, with-
out narrowing its focus to particular claims, that ‘‘[t]his
lawsuit is not barred by the statute of limitations.’’
(Emphasis added.) Section 42-110g (f) provides that
‘‘[a]n action under this section may not be brought more
than three years after the occurrence of a violation of
this chapter.’’ The court did not discuss the applicable
statute of limitations or whether fraudulent conceal-
ment or a continuing course of conduct by the defen-
dants could toll the running of that statute of limita-
tions.22 The defendants argue that neither fraudulent
concealment nor a continuing course of conduct can
toll the statute of limitations for a claim under CUTPA.
See Fichera v. Mine Hill Corp., 207 Conn. 204, 216, 541
A.2d 472 (1988). Although it does not appear that our
courts have squarely addressed this issue, we need not
reach the issue here because we have concluded that
neither doctrine applies to the defendants’ conduct in
this case, nor, by extension, to their special defenses
under any pleaded statute of limitations. See part I C
of this opinion.
Accordingly, the defendants argue that, of the con-
duct described by the court in its discussion of CUTPA,
‘‘[t]he only activities occurring within the three years
prior to [the plaintiff’s] suit are Aferzon’s disregarding of
[the plaintiff’s] lawyers’ letters and his alleged litigation
conduct,’’ which actions assertedly cannot constitute
CUTPA violations. It is clear from the court’s memoran-
dum of decision, however, that not all of the defendants’
actions, as described by the court, were claimed to
constitute unfair trade practices in violation of CUTPA
but instead were described as evidence supporting the
court’s conclusion that Aferzon’s breaches of the par-
ties’ agreement were made in bad faith, and that such
bad faith breaches of contract are what constituted
the alleged CUTPA violations. The court explained that
‘‘[o]rdinary contract breaches are not unfair trade prac-
tices. Breaches made in bad faith can be unfair trade
practices. . . . This court believes the evidence is clear
and convincing that Aferzon breached his agreement
not prompted by an honest mistake as to his rights or
duties, but by an interested or sinister motive.’’ As the
court explained, the defendants breached the agree-
ment every time ISI received a payment from Alphatec
and failed to notify or compensate the plaintiff per the
agreement. ISI received thirty-four royalty payments for
the sale and/or licensing of the patented device between
2010 and 2019, which it failed to share with the plaintiff
in breach of the parties’ agreement. Thirteen of those
breaches occurred within the three year limitation
period preceding the date of commencement of this
action on July 16, 2018. Therefore, we review the court’s
decision awarding attorney’s fees for the prosecution
of the plaintiff’s claim by addressing whether those
thirteen breaches of contract are sufficient to establish
a CUTPA violation.
First, we note that the court is correct that bad faith
breaches of contract, but not ordinary breaches, can be
found to constitute unfair trade practices under CUTPA.
‘‘[T]he same facts that establish a breach of contract
claim may be sufficient to establish a CUTPA violation’’;
Lester v. Resort Camplands International, Inc., 27
Conn. App. 59, 71, 605 A.2d 550 (1992); but not every
contractual breach will rise to the level of a CUTPA
violation. Hudson United Bank v. Cinnamon Ridge
Corp., 81 Conn. App. 557, 571, 845 A.2d 417 (2004).
‘‘[W]e never have suggested that . . . CUTPA claims
are barred if the plaintiff suffered only an economic
loss and the loss arose solely from the breach of the
contract. Rather, our focus in such cases has been on
whether the defendant’s breach of contract was merely
negligent or incompetent, in which case the CUTPA
claim was barred, or whether the defendant’s actions
would support a finding of intentional, reckless, unethi-
cal or unscrupulous conduct, in which case the contrac-
tual breach will support a CUTPA claim under the sec-
ond prong of the cigarette rule.’’ (Emphasis omitted.)
Ulbrich v. Groth, 310 Conn. 375, 410, 78 A.3d 76 (2013).
Our Supreme Court has cited with approval language
employed by federal courts indicating that ‘‘absent sub-
stantial aggravating circumstances, [a] simple breach
of contract is insufficient to establish [a] claim under
CUTPA . . . .’’ Lydall, Inc. v. Ruschmeyer, 282 Conn.
209, 248, 919 A.2d 421 (2007); id., 247 (defendant
employee’s breach of employment agreement and
attempted takeover of plaintiff publicly traded corpora-
tion was insufficient to establish CUTPA violation in
absence of showing that employee’s attempted takeover
was ‘‘in and of itself’’ unlawful). ‘‘In the absence of
aggravating unscrupulous conduct, mere incompetence
does not by itself mandate a trial court to find a CUTPA
violation.’’ Naples v. Keystone Building & Development
Corp., 295 Conn. 214, 229, 990 A.2d 326 (2010); id.,230–31 (trial court’s finding of no CUTPA violation was
not clearly erroneous where defendant’s breaches of
contract ‘‘constituted nothing other than mere incompe-
tence’’); see also IN Energy Solutions, Inc. v. Realgy,
LLC, 114 Conn. App. 262, 274–75, 969 A.2d 807 (2009)
(breach of sales contract did not constitute CUTPA
violation when trial court specifically found that plain-
tiff failed to prove that defendant’s breach was unethi-
cal, unscrupulous, wilful or reckless); Gaynor v. Hi-
Tech Homes, 149 Conn. App. 267, 279–80, 89 A.3d 373(2014) (reversing trial court’s award of CUTPA attor-
ney’s fees where evidence failed to support claim
beyond mere breach of contract).
In Landmark Investment Group, LLC v. Chung Fam-
ily Realty Partnership, LLC, supra, 125 Conn. App.
678, this court upheld a finding that the defendant had
violated CUTPA by terminating an agreement in bad
faith. The trial court listed nine factual findings in sup-
port of this conclusion. Id., 705–706. This court ruled
that none of those findings was clearly erroneous, and
affirmed the finding of bad faith. Id., 708. The court’s
ultimate conclusion was as follows: ‘‘The [trial] court’s
findings reveal that the defendant engaged in a pattern
of bad faith conduct, seeking to escape its contractual
obligations unfairly while negotiating a more favorable
offer with . . . a third party. Given the wrongful termi-
nation and the aggravating circumstances, there is
ample support for the trial court’s conclusion that the
defendant’s actions violated CUTPA. Therefore, the
court’s finding of a CUTPA violation was not clearly
erroneous.’’ Id.We begin with the court’s finding that the defendants
breached the contract in bad faith. ‘‘[I]t is axiomatic
that the . . . duty of good faith and fair dealing is a
covenant implied into a contract or a contractual rela-
tionship. . . . In other words, every contract carries
an implied duty requiring that neither party do anything
that will injure the right of the other to receive the
benefits of the agreement. . . . The covenant of good
faith and fair dealing presupposes that the terms and
purpose of the contract are agreed upon by the parties
and that what is in dispute is a party’s discretionary
application or interpretation of a contract term. . . .
To constitute a breach of [the implied covenant of good
faith and fair dealing], the acts by which a defendant
allegedly impedes the plaintiff’s right to receive benefits
that he or she reasonably expected to receive under the
contract must have been taken in bad faith.’’ (Internal
quotation marks omitted.) Renaissance Management
Co. v. Connecticut Housing Finance Authority, 281
Conn. 227, 240, 915 A.2d 290 (2007).
‘‘Bad faith in general implies both actual or construc-
tive fraud, or a design to mislead or deceive another,
or a neglect or refusal to fulfill some duty or some
contractual obligation, not prompted by an honest mis-
take as to one’s rights or duties, but by some interested
or sinister motive.’’ (Internal quotation marks omitted.)
Keller v. Beckenstein, 117 Conn. App. 550, 563–64, 979
A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274(2009). ‘‘Whether a party has acted in bad faith is a
question of fact, subject to the clearly erroneous stan-
dard of review.’’ Harley v. Indian Spring Land Co.,
123 Conn. App. 800, 837, 3 A.3d 992 (2010).
First, we note that the facts supporting the court’s
conclusion that Aferzon acted in bad faith in breaching
the agreement are not subject to the three year statute
of limitations for CUTPA claims. The three year statute
of limitations applies to the particular conduct that
the court found to constitute unfair trade practices in
violation of CUTPA, not to the subordinate factual find-
ings supporting its conclusion that when Aferzon
engaged in such conduct he was acting in bad faith.
They are separate determinations. As we have
explained, a number of the defendants’ bad faith
breaches of contract occurred within the three year
limitation period, and each successive breach occurred
in the course of and in furtherance of the same bad
faith scheme.
On the basis of our review of the record, we conclude
that the court’s finding that Aferzon breached the agree-
ment in bad faith is supported by the evidence. The
court explained that Aferzon lied about the status of the
project, ignored the plaintiff’s requests for information,
disregarded letters from the plaintiff’s counsel, created
ISI as a way to get around the agreement, and attempted
to fabricate expenses during litigation. There is support
for each of these findings in the record. Therefore, it
was not clearly erroneous for the court to conclude
that Aferzon’s repeated breaches of the agreement after
engaging in such conduct were made in bad faith.
We next consider the court’s subsequent conclusion
that the defendants’ bad faith breaches of the agreement
constituted CUTPA violations. We iterate that a trial
court’s decision as to whether a defendant’s acts consti-
tute deceptive or unfair trade practices in violation of
CUTPA is a question of fact that we review for clear
error. Landmark Investment Group, LLC v. Chung
Family Realty Partnership, LLC, supra, 125 Conn. App.
699–708.
The court’s conclusion that the defendants commit-
ted unfair trade practices was not clearly erroneous.
Breaches of contract can constitute CUTPA violations
when found to have been committed in aggravating
circumstances, with unscrupulous conduct, or in bad
faith. See Ulbrich v. Groth, supra, 310 Conn. 410; Land-
mark Investment Group, LLC v. Chung Family Realty
Partnership, LLC, supra, 125 Conn. App. 708. The
defendants breached the agreement thirteen times
within the applicable limitation period, and the court
listed several aggravating circumstances, for which we
have found support in the record, supporting its conclu-
sion that these breaches were made in bad faith. In
Landmark Investment Group, LLC, this court explained
that even a single act of misconduct can constitute a
CUTPA violation. See Landmark Investment Group,
LLC v. Chung Family Realty Partnership, LLC, supra,
708.
Therefore, we affirm the court’s finding of a CUTPA
violation and its decision to award the plaintiff its attor-
ney’s fees. Because, however, the court engaged in no
discussion of the applicable statute of limitations, and
several breaches on which it did rely in finding such a
violation occurred outside of the three year limitation
period, we must remand the case to the court with
instructions to determine, if possible, what portion of
the fees and costs it awarded under CUTPA were rea-
sonably incurred to litigate that portion of the CUTPA
claim that was not barred by the statute of limitations.
The court should consider only the time spent litigating
and establishing the breaches for which a recovery is
permissible under CUTPA and the time spent establish-
ing the factual basis for its finding that such actionable
breaches were committed in bad faith. We recognize
that it may be impracticable for the court to apportion
the fees in this fashion; see Total Recycling Services
of Connecticut, Inc. v. Connecticut Oil Recycling Ser-
vices, LLC, 308 Conn. 312, 333, 63 A.3d 896 (2013)
(‘‘when certain claims provide for a party’s recovery of
contractual attorney’s fees but others do not, a party
is nevertheless entitled to a full recovery of reasonable
attorney’s fees if an apportionment is impracticable
because the claims arise from a common factual
nucleus and are intertwined’’); see also Heller v. D. W.
Fish Realty Co., 93 Conn. App. 727, 734–36, 890 A.2d
113 (2006); but, this is not something that we can deter-
mine in the first instance on appeal. There may be some
portion of the attorney’s time that was definitively spent
on violations occurring outside of the limitation period,
for example, any time spent determining or litigating
the cash value of the Alphatec stock transfer, which
occurred in 2010, outside of the limitation period for
CUTPA claims. Accordingly, we remand this case to the
trial court with instructions to determine the amount
of attorney’s fees and costs that the plaintiff is entitled
to recover, limited to those fees and costs reasonably
incurred to prosecute the portion of its claim under
CUTPA that was based on the defendants’ bad faith
breaches of the parties’ contract within the three year
limitation period applicable to such claims under § 42-
110g (f).
II
THE PLAINTIFF’S CROSS APPEAL
The plaintiff cross appeals from the court’s award of
offer of compromise interest. The plaintiff argues that
the court committed multiple errors in its calculation
of the amount of interest to which it is entitled based
on the defendants’ failure to accept its offer of compro-
mise. The defendants have not filed an answering brief
on the plaintiff’s cross appeal. We agree with the plain-
tiff that the court erred in determining the amount of
offer of compromise interest to which it was entitled
in this case, and thus reverse the court’s judgment with
respect to that issue and remand this case with instruc-
tions to recalculate its award of offer of compromise
in a manner consistent with this opinion.
The following additional facts and procedural history
are relevant to this issue. On October 10, 2019, the
plaintiff filed a unified offer of compromise pursuant
to § 52-192a, offering to settle its claims against the
defendants for $1,150,000.23 The parties do not dispute
that the offer was appropriately made more than 180
days after the defendants were served with legal pro-
cess in this action, more than 30 days prior to the first
day of trial and within 18 months of the filing of the
complaint. The defendants did not accept the offer. On
April 22, 2020, the court rendered judgment for the
plaintiff, ultimately awarding it $1,587,289 in expecta-
tion damages on its breach of contract claim, prejudg-
ment interest in the amount of $504,054 under § 37-3a,
and $756,000 in expenses and attorney’s fees under
CUTPA. On May 21, 2020, the plaintiff moved for the
court to award offer of compromise interest, claiming
‘‘[the plaintiff] is entitled to mandatory offer of compro-
mise interest at the rate of 8 percent per year on the
total of (1) [the plaintiff’s] expectation damages, (2)
prejudgment interest and (3) attorney’s fees and
expenses awarded, calculated from July 19, 201824 (the
date [the plaintiff] filed its complaint) through the date
this court enters final judgment.’’ (Footnote added.)
The court rendered final judgment for the plaintiff
on September 21, 2020, awarding it $90,968.00 in offer of
compromise interest. Before explaining its calculations,
the court expressed its concern that the offer of com-
promise interest it awarded would be too severe: ‘‘The
court is concerned that the 8 percent interest rate dic-
tated by the offer of compromise statute is today
extraordinary. It is a penalty whose severity has mark-
edly increased. . . . The idea is to provide compensa-
tion for the wrongful detention of the money and a
significant but not draconian consequence for failing
to accept the offer of compromise.’’ To address these
concerns, the court deviated from the statutory lan-
guage of § 52-192a in three ways. First, it awarded the
plaintiff interest on the difference between the amount
it recovered in the action and the amount of the settle-
ment proposed in the offer of compromise, rather than
on the total amount of the plaintiff’s recovery. Second,
the court did not include its award of prejudgment
interest to the plaintiff under § 37-3a in the total amount
of the court’s award of money damages for the purpose
of calculating the amount of offer of compromise inter-
est it should award.25 Third, not wanting to award ‘‘inter-
est on the interest,’’ the court subtracted 4.5 percent,
representing the interest it had already awarded to the
plaintiff under § 37-3a, from the 8 percent interest rate
established by statute for the calculation of offer of
compromise interest in § 52-192a, and thus applied an
interest rate of 3.5 percent when calculating the amount
of the plaintiff’s offer of compromise award. Ultimately,
applying a 3.5 percent annual interest rate to the
reduced sum of $1,193,289, which did not include the
prejudgment interest it had awarded to the plaintiff,
the court awarded the plaintiff a total of $90,968 in offer
of compromise interest.
Each of the three adjustments detailed previously
was improper. We address each in turn, but first set
forth our standard of review. ‘‘[The purpose of § 52-
192a] is to encourage pretrial settlements and, conse-
quently, to conserve judicial resources. . . . [T]he
strong public policy favoring the pretrial resolution of
disputes . . . is substantially furthered by encouraging
defendants to accept reasonable offers of judg-
ment.26. . . Section 52-192a encourages fair and reason-
able compromise between litigants by penalizing a party
that fails to accept a reasonable offer of settlement.
. . . In other words, interest awarded under § 52-192a
is solely related to a defendant’s rejection of an advanta-
geous offer to settle before trial and his subsequent
waste of judicial resources.’’ (Citations omitted; foot-
note added; internal quotation marks omitted.)
Blakeslee Arpaia Chapman, Inc. v. EI Constructors,
Inc., 239 Conn. 708, 742, 687 A.2d 506 (1997). ‘‘The
question of whether the trial court properly awarded
interest pursuant to § 52-192a is one of law subject to
de novo review. . . . It is well established that [§] 52-
192a provides for interest until the date of judgment.
. . . Section 52-192a (b) requires a trial court to award
interest to the prevailing plaintiff from the date of the
filing of a complaint to the date of judgment whenever:
(1) a plaintiff files a valid offer of judgment within
eighteen months of the filing of the complaint in a civil
complaint for money damages; (2) the defendant rejects
the offer of judgment; and (3) the plaintiff ultimately
recovers an amount greater than or equal to the offer of
judgment.’’ (Citations omitted; internal quotation marks
omitted.) Aubin v. Miller, 64 Conn. App. 781, 800, 781
A.2d 396 (2001). ‘‘The interest awarded is in no way
discretionary.’’ Paine Webber Jackson & Curtis, Inc. v.
Winters, 22 Conn. App. 640, 653, 579 A.2d 545, cert.
denied, 216 Conn. 820, 581 A.2d 1055 (1990).
We first address the court’s decision to apply the
interest rate to the difference between the amount
recovered by the plaintiff and the amount of the settle-
ment proposed in the offer of compromise, rather than
to the total amount recovered by the plaintiff. Section
52-192a (c) expressly provides that ‘‘the court shall
add to the amount so recovered eight per cent annual
interest on said amount.’’ (Emphasis added.) The stat-
ute further sets forth, however, that in the case of a
counterclaim plaintiff under General Statutes § 8-132,
the court ‘‘shall add to the amount so recovered eight
per cent annual interest on the difference between the
amount so recovered and the sum certain specified
in the counterclaim plaintiff’s offer of compromise.’’
(Emphasis added.) General Statutes § 52-192a (c).
Under the statute, the court must calculate interest on
the difference only when the offer of compromise was
filed by a counterclaim plaintiff under § 8-132. The plain-
tiff is not a counterclaim plaintiff. The statute mandates
that the court apply offer of compromise interest ‘‘on
the amount so recovered.’’ ‘‘[B]ased upon the statutory
language of § 52-192a, it [would be] plain error for the
trial court to compute interest only on a portion of the
award. . . . The plain language of . . . § 52-192a
specifies that the court shall add to the amount so
recovered [8] percent annual interest on said amount.
. . . The trial court clearly did not act in accordance
with the mandate of § 52-192a when it awarded interest
only on the damages portion of the award. . . . [I]nter-
est must be awarded on the entire award, that is, the
amount so recovered.’’ (Citations omitted; emphasis in
original; internal quotation marks omitted.) Gillis v.
Gillis, 21 Conn. App. 549, 556, 575 A.2d 230, cert. denied,
215 Conn. 815, 576 A.2d 544 (1990); see also Cardenas
v. Mixcus, 264 Conn. 314, 323, 823 A.2d 321 (2003)
(holding that offer of compromise interest must be cal-
culated on total amount of jury verdict rather than
amount remaining after apportionment to employer to
satisfy amount it had paid plaintiff as workers’ compen-
sation benefits). It was error for the court to calculate
the plaintiff’s award of offer of compromise interest on
the basis of the difference between the amount of its
recovery and the amount of its offer of compromise.
We next address the court’s failure to include the
prejudgment interest awarded under § 37-3a in the
plaintiff’s total recovery when calculating its award of
offer of compromise interest. This court has explicitly
held that an award under § 37-3a must be included in
the calculation of interest awarded under § 52-192a.
‘‘Unlike § 37-3a, § 52-192a does not depend on an analy-
sis of the underlying circumstances of the case or a
determination of the facts. Section 52-192a applies only
to civil actions on contracts or for the recovery of
money. Wrongful detention of money need not be found.
The interest awarded is in no way discretionary. The
statute provides that the court shall examine the record
after trial, and if the plaintiff’s recovery exceeds the
rejected offer of judgment found in the record, the court
shall add interest to that recovery. In an appropriate
case, both statutes could apply; the defendant could
owe interest as damages on the debt and then owe
interest on the total amount based on his refusal to
settle.’’ (Emphasis altered.) Paine Webber Jackson &
Curtis, Inc. v. Winters, supra, 22 Conn. App. 653. An
offer of compromise, like the offer of judgment that
preceded it, is ‘‘an offer to settle the entire case, includ-
ing claims both known and unknown, and both certain
and uncertain. . . . In addition to money saved by
avoiding litigation expenses, a defendant might also
save the discretionary interest of § 37-3a. A defendant
must assess the degree of possibility that interest may
be awarded in the event that the trier determines that
money has been detained by a defendant after it became
due. The defendants here risked that a judgment would
not include § 37-3a interest. The vagaries of the compo-
nents of settlement include a possibility that § 37-3a
interest will be awarded in some cases. In the present
case, the possibility became reality.’’ (Citation omitted;
internal quotation marks omitted.) Flynn v. Kaumeyer,
67 Conn. App. 100, 107–108, 787 A.2d 37 (2001); see
also Gillis v. Gillis, supra, 21 Conn. App. 556 (finding
that prejudgment interest awarded under § 37-3a must
be included in total amount recovered when calculating
offer of judgment interest). Therefore, interest must
be awarded on the total amount recovered, including
prejudgment interest.
Lastly, we discuss the court’s reduction of the per-
centage of the plaintiff’s recovery awarded as offer of
compromise interest. ‘‘[Section] 52-192a provides for
mandatory imposition of interest at a set rate, unlike
§ 37-3a . . . and affords no allowance for the discre-
tion of the court. (Citation omitted; emphasis in origi-
nal.) Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn.
App. 419, 430, 840 A.2d 578, cert. denied, 268 Conn. 922,
846 A.2d 881 (2004). As we have stated, ‘‘[t]he interest
awarded is in no way discretionary.’’ Paine Webber
Jackson & Curtis, Inc. v. Winters, supra, 22 Conn. App.
653. A comparison between §§ 37-3a and 52-192a
informs our conclusion. Section 37-3a provides that
‘‘interest at the rate of ten per cent a year, and no more,
may be recovered and allowed in civil actions . . . as
damages for the detention of money after it becomes
payable.’’ (Emphasis added.) This statute gives trial
courts the discretion to decide whether to award pre-
judgment interest at all and the rate to apply. See Riley
v. Travelers Home & Marine Ins. Co., 173 Conn. App.
422, 461–62, 163 A.3d 1246 (2017), aff’d, 333 Conn. 60,
214 A.3d 345 (2019). By contrast, § 52-192a provides
that ‘‘the court shall add to the amount so recovered
eight per cent annual interest on said amount . . . .’’
(Emphasis added.) Unlike § 37-3a, which establishes 10
percent as an optional maximum, § 52-192a states that
the court shall apply 8 percent. Our Supreme Court has
stated that use of the word shall generally evidences
an intent that the statute be interpreted as mandatory;
see, e.g., DeMayo v. Quinn, 315 Conn. 37, 43, 105 A.3d
141 (2014); and, indeed, this court has consistently inter-
preted § 52-192 as mandatory. See, e.g., Ceci Bros., Inc.
v. Five Twenty-One Corp., supra, 430. It was improper
for the court to calculate the offer of compromise award
at the reduced rate of 3.5 percent per year instead of
at the mandatory statutory rate of 8 percent per year.
Accordingly, on the plaintiff’s cross appeal, we
reverse the court’s judgment awarding offer of compro-
mise interest to the plaintiff and remand this case to the
trial court with instructions to recalculate the amount
of that award in a manner consistent with this opinion
after determining the amount of attorney’s fees and
costs to which the plaintiff is entitled under CUTPA
and adding that amount to the plaintiff’s adjusted total
damages for breach of contract.
The judgment is reversed only with respect to the
determination that the statute of limitations was tolled
as to the plaintiff’s breach of contract claim, the amount
of damages awarded on the plaintiff’s breach of contract
claim, the amount of attorney’s fees and costs awarded
on the plaintiff’s CUTPA claim, and the amount of the
award of offer of compromise interest, and the case is
remanded with direction (1) to render judgment in favor
of the plaintiff on the breach of contract claim in the
modified amount of $1,204,968.41, (2) to determine, if
possible, the amount of attorney’s fees and costs that
were reasonably incurred by the plaintiff to prosecute
that portion of its CUTPA claim that was based on unfair
trade practices committed by the defendants within
the three year statute of limitations applicable to such
claims, and (3) to recalculate the award of offer of
compromise interest in a manner consistent with this
opinion, after determining the amount of attorney’s fees
and costs to be awarded on the plaintiff’s CUTPA claim
and recalculating the total amount of the plaintiff’s
recovery herein; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
There was some dispute between the parties as to what was expected
of MDS under their oral agreement. Lyons and Young testified that their
obligation was to ‘‘develop and manufacture a prototype,’’ but Aferzon
‘‘insist[ed] there was more,’’ claiming that he expected MDS to produce
something ‘‘functional, reproducible, and manufacturable.’’ It was undis-
puted, however, that MDS, at a minimum, had agreed to prepare design
drawings and produce a prototype of the device.
2
A pinion is ‘‘a gear with a small number of teeth designed to mesh with
a larger wheel or rack.’’ Merriam-Webster’s Collegiate Dictionary (11th Ed.
2014) p. 941.
3
The court ‘‘consider[ed] the stock to have a cash value on its date of
transfer that [was] the dollar value at a per share value judicially noticed
by the court and that MDS used in its damage calculation.’’ This valuation
has not been challenged on appeal by either party.
4
The defendants also asserted waiver, that there was reliance or perfor-
mance on the part of the plaintiff, laches, unclean hands, and that the plaintiff
failed to mitigate its damages.
5
Additionally, the defendants argued before the court that development
expenses of a ‘‘lateral’’ device should also reduce the total compensation
received. As the court explained, ‘‘[a] ‘lateral’ device goes into the body
from the side. An ‘anterior’ device is inserted into the body through the
front.’’ Although Aferzon and Bash also patented a lateral device and assigned
it to ISI, they did not license the lateral device to Alphatec, Alphatec never
sold lateral devices, and the defendants never made money from the sale
and/or licensing of that device. The court held that the parties’ agreement
covered only the anterior device and did not consider the development
expenses of the lateral device, explaining that any expenses related to the
lateral device were irrelevant. This ruling has not been challenged on appeal.
Thus, any references to the ‘‘device’’ or the ‘‘patented device’’ throughout
this opinion refer only to the anterior device.
6
The defendants have not challenged on appeal the finding of successor
liability or the court’s conclusion that the defendants’ calculation of expenses
was not reliable.
7
The court also considered, and denied, the defendants’ special defenses
of unconscionability and mistake. These rulings have not been challenged
on appeal.
8
The court does not explain why it initially calculated the amount of
prejudgment interest to which the plaintiff was entitled under § 37-3a until
May 4, 2020, even though it issued its memorandum of decision rendering
partial judgment for the plaintiff on April 22, 2020. In the end, however, the
court’s initial selection of that end date for its calculation of prejudgment
interest is of no significance because the court later extended the end
date of its interest calculation until September 21, 2020, the date of final
judgment herein.
9
The court also suggested, as follows, that it might be awarding attorney’s
fees both under the common law and under CUTPA: ‘‘It’s worth noting that
the court would award attorney’s fees even without CUTPA.’’ So understand-
ing the court’s ruling, the parties briefed the propriety of such an award
before this court. The trial court, however, issued a supplemental order on
October 16, 2020, clarifying that it did not award fees under the common
law. Accordingly, that issue is not before this court.
10
Specifically, the defendants request that the issue should be remanded
for the agreement to be reinterpreted based on its plain language: ‘‘The
defendants are not challenging the trial court’s factual findings but, rather,
whether those findings are legally material to the fundamental question at
hand: is the [patent] within the scope of the November 4, 2004 agreement?
The defendants are entitled to a legal analysis that matches the terms of
the contract. The trial court misinterpreted the contract, and, therefore, its
factual findings do not add up to its conclusion of legal liability.’’
11
As mentioned previously, the defendants also argued that the plaintiff
was barred from recovering because the profits went to a limited liability
company and that they were negated by expenses. The court rejected both
of these arguments, and they have not been advanced on appeal.
12
Associated is a participial adjective of the verb ‘‘associate.’’ The defini-
tions provided herein for ‘‘associated’’ are from the entry for the verb ‘‘associ-
ate.’’
13
‘‘The issue of infringement focuses on whether a particular device falls
within the particular boundaries of a patentee’s invention, which are defined
by the claims of the patent. Lemelson v. United States, 752 F.2d 1538, 1551
(Fed. Cir. 1985).’’ Novametrix Medical Systems, Inc. v. BOC Group, Inc.,
224 Conn. 210, 217–18 n.11, 618 A.2d 25 (1992).
14
‘‘It is a ‘bedrock principle’ of patent law that ‘the claims of a patent
define the invention to which the patentee is entitled the right to exclude.’
[Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d
1111, 1115 (Fed. Cir. 2004)]; see also [Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576, 1582 (Fed. Cir. 1996)] (‘we look to the words of the claims
themselves . . . to define the scope of the patented invention’); [Markman
v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995) (en banc)
(‘The written description part of the specification itself does not delimit the
right to exclude. That is the function and purpose of claims.’) [aff’d, 517
U.S. 370, 116 S. Ct. 1384, 134 L. Ed. 2d 577 (1996)].’’ Phillips v. AWH Corp.,
415 F.3d 1303, 1312 (Fed. Cir. 2005), cert. denied, 546 U.S. 1170, 126 S. Ct.
1332, 164 L. Ed. 2d 49 (2006).
15
The court stated: ‘‘All we have to do to see the relationship is to look
at the drawings beginning with Aferzon’s and ending with those in the patent
application to see that they are at minimum the same basic idea . . . .’’
16
Aferzon testified that he did not recall receiving these letters or the
2008 e-mails. The court did not find this claim credible and presumed that
they arrived. The defendants have not challenged this finding.
17
The court explained that ‘‘the [plaintiff] first learned what it needed to
know to sue, at the earliest, in the late fall of 2017 when [the plaintiff’s]
CEO Lyons was told by his physical therapist that the device was making
money and that Bash—whom Lyons knew to be associated with Aferzon—
was training physicians about how to use it.’’ The letters were sent on
November 24, 2017, and February 6, 2018. We note that the first letter also
states that ‘‘your conduct appears to constitute a breach of the [a]gree-
ment . . . .’’
18
The court, in its discussion of the continuing course of conduct doctrine,
characterized the relationship between the parties as a ‘‘special relationship’’
that was akin to a fiduciary relationship, arising from a ‘‘specific, legally
recognized duty in contract that was continuing and required Aferzon to
report his gains from the device idea to [the plaintiff].’’ The plaintiff now
argues that this relationship is ‘‘functionally equivalent to the duty to disclose
arising out of a fiduciary relationship . . . .’’ For the reasons discussed in
part I C 2 of this opinion, the court overstates the nature of the parties’
relationship and, thus, this conclusion has no bearing on whether fraudulent
concealment applies to the defendants’ actions.
The plaintiff argues that the court should decide on remand whether the
parties had a fiduciary relationship, but, as we explain in part I C 2 of this
opinion, there is insufficient evidence for a special relationship, and the
court was not able to point to any factors that would give rise to a special
relationship. It would be fruitless to consider the issue on remand.
19
We do not fault the court for its use of both terms, as our Supreme
Court indicated in Bouchard that, until recently, our courts have used the
terms in a manner that would imply that they are interchangeable. See
Bouchard v. State Employees Retirement Commission, supra, 328 Conn.
374 n.14. The trial court also noted the distinction at first, explaining that
‘‘[s]ometimes this idea of multiple breaches is called a continuing violation
under the label of a ‘separate accrual rule.’ Other times, tolling is allowed
under a version of this doctrine recognizing a series of acts as one long
wrong that keeps going until the last wrong act, tolling the limitation period
for everything from the first act to the last.’’ Nevertheless, the court failed
to distinguish the two in its analysis.
20
The plaintiff takes issue with the defendants’ citation of this passage,
arguing that the ‘‘defendants incorrectly quote inapposite dicta in [Watts v.
Chittenden, supra, 301 Conn. 588], regarding ‘discrete injuries . . . in suits
for lost wages’ as if it were a statement of Connecticut law by the Connecticut
Supreme Court. . . . In reality, that statement is a quotation attributable
to the Seventh Circuit’s decision in Heard v. Sheahan, 253 F.3d 316, 320
(7th Cir. 2001), which, in turn, was citing the Eleventh Circuit decision
of Knight v. Columbus, [supra, 19 F.3d 581–82], discussing whether the
‘continuing violation theory’ was applicable to a violation of the Fair Labor
Standards Act. [29 U.S.C. § 201 et seq.] Importantly, the ‘continuing violation
theory’ is not the same as the ‘continuing course of conduct doctrine.’ ’’
(Citation omitted.) The plaintiff is correct that these two cases discuss
‘‘continuing violations’’ but, as our Supreme Court has stated, the terms
have been used interchangeably; Bouchard v. State Employees Retirement
Commission, supra, 328 Conn. 374 n.14; and it is clear that these cases
discuss what our courts refer to as a continuing course of conduct: ‘‘The
term ‘continuing violation’ also implies that there is but one incessant viola-
tion and that the [plaintiff] should be able to recover for the entire duration
of the violation, without regard to the fact that it began outside the statute
of limitations window. That is not the case. Instead of one [ongoing] violation,
this case involves a series of repeated violations of an identical nature.
Because each violation gives rise to a new cause of action, each failure to
pay overtime begins a new statute of limitations period as to that particular
event.’’ Knight v. Columbus, supra, 582.
Regardless of the terminology used by the courts in Knight and Heard,
our Supreme Court clearly cited the passage as an example of what would
not qualify as a continuing course of conduct. Watts v. Chittenden, supra,
301 Conn. 587–90. To argue that the passage is not Connecticut law because
it was ultimately derived from federal cases is inaccurate, especially consid-
ering that the passage has since been cited in other Connecticut cases
discussing the continuing course of conduct doctrine. See, e.g., Saint Ber-
nard School of Montville, Inc. v. Bank of America, supra, 312 Conn. 838.
21
In so doing, we note that if the plaintiff’s adjusted recovery falls below
the amount of its unified offer of compromise pursuant to § 52-192a, the
plaintiff’s cross appeal would be rendered moot.
22
The defendants did plead in their answer that the plaintiff’s claims were
barred by the statute of limitations set forth in § 42-110g.
23
General Statutes § 52-192a provides in relevant part: ‘‘(a) Except as
provided in subsection (b) of this section, after commencement of any civil
action based upon contract or seeking the recovery of money damages,
whether or not other relief is sought, the plaintiff may, not earlier than one
hundred eighty days after service of process is made upon the defendant
in such action but not later than thirty days before trial, file with the clerk
of the court a written offer of compromise signed by the plaintiff or the
plaintiff’s attorney, directed to the defendant or the defendant’s attorney,
offering to settle the claim underlying the action for a sum certain. For the
purposes of this section, such plaintiff includes a counterclaim plaintiff
under section 8-132. The plaintiff shall give notice of the offer of compromise
to the defendant’s attorney or, if the defendant is not represented by an
attorney, to the defendant himself or herself. Within thirty days after being
notified of the filing of the offer of compromise and prior to the rendering
of a verdict by the jury or an award by the court, the defendant or the
defendant’s attorney may file with the clerk of the court a written acceptance
of the offer of compromise agreeing to settle the claim underlying the action
for the sum certain specified in the plaintiff’s offer of compromise. Upon
such filing and the receipt by the plaintiff of such sum certain, the plaintiff
shall file a withdrawal of the action with the clerk and the clerk shall record
the withdrawal of the action against the defendant accordingly. If the offer
of compromise is not accepted within thirty days and prior to the rendering
of a verdict by the jury or an award by the court, the offer of compromise
shall be considered rejected and not subject to acceptance unless refiled.
Any such offer of compromise and any acceptance of the offer of compro-
mise shall be included by the clerk in the record of the case. . . .
‘‘(c) After trial the court shall examine the record to determine whether
the plaintiff made an offer of compromise which the defendant failed to
accept. If the court ascertains from the record that the plaintiff has recovered
an amount equal to or greater than the sum certain specified in the plaintiff’s
offer of compromise, the court shall add to the amount so recovered eight
per cent annual interest on said amount, except in the case of a counterclaim
plaintiff under section 8-132, the court shall add to the amount so recovered
eight per cent annual interest on the difference between the amount so
recovered and the sum certain specified in the counterclaim plaintiff’s offer
of compromise. The interest shall be computed from the date the complaint
in the civil action or application under section 8-132 was filed with the court
if the offer of compromise was filed not later than eighteen months from
the filing of such complaint or application. If such offer was filed later than
eighteen months from the date of filing of the complaint or application, the
interest shall be computed from the date the offer of compromise was filed.
The court may award reasonable attorney’s fees in an amount not to exceed
three hundred fifty dollars, and shall render judgment accordingly. This
section shall not be interpreted to abrogate the contractual rights of any
party concerning the recovery of attorney’s fees in accordance with the
provisions of any written contract between the parties to the action.’’
24
Section 52-192a specifies that the interest should be calculated from
the date the complaint was filed. The court appropriately used this date.
25
The court stated: ‘‘To make this adjustment, for purposes of the offer
of compromise statute, the court treats as the amount recovered the damages
award in the amount of $1,587,289 and the attorney’s fee award of $756,000
for a total recovery of $2,343,289. The offer of compromise was for
$1,150,000. The extra amount recovered gets the 8 percent rate. It is derived
by subtracting from the total recovery of $2,343,289 the $1,150,000 offer of
compromise amount yielding an amount in excess of the offer of $1,193,289.’’
26
We note that § 52-192a was amended in 2005 by, inter alia, the substitu-
tion of ‘‘offer of compromise’’ for ‘‘offer of judgment’’ and other technical
changes. See Public Acts 2005, No. 05-275, § 4. The general function of the
statute remains the same and, thus, case law from before the amendment
is still applicable. See, e.g., Georges v. OB-GYN Services, P.C., 335 Conn.
669, 680–81, 240 A.3d 249 (2020) (applying case law that predates amendment
in discussion concerning offer of compromise interest).