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*********************************************** 
MARK P. CHIOFFI v. CHRISTOPHER G.

MARTIN ET AL.

(AC 38443)

Lavine, Elgo and Beach, Js.

Syllabus

The plaintiff sought to recover damages from his law partner, the defendant

M, for, inter alia, breach of fiduciary duty and breach of a partnership

agreement arising out of the dissolution of the limited liability partnership they had formed for the practice of law. The plaintiff claimed, inter

alia, that M, as part of the winding up of the partnership, had improperly

distributed certain assets to himself in violation of the partnership

agreement. M filed a counterclaim, seeking damages and attorney’s fees.

At the time of the dissolution of the partnership, M had a 57 percent

interest in the partnership, and the plaintiff had a 43 percent interest

in the partnership. Under the partnership agreement, revenue was to

be allocated between three capital accounts, namely, a corporate

account for which M was responsible, a trusts and estates account for

which the plaintiff was responsible, and a ‘‘remaining’’ account into

which all other revenues were allocated. The distribution of funds to

the plaintiff and M was governed by § 3.02 of the partnership agreement,

which required that, following any distribution, the balances in the

plaintiff’s and M’s capital accounts be directly proportionate to their

ownership percentages. The partnership agreement also contained

restrictions in § 4.03 on certain actions that the plaintiff and M could

take. Any losses or expenses, including attorney’s fees, arising from a

partner’s actions were to be allocated exclusively to that partner’s capital

account. After a trial to the court, the court rendered judgment for the

plaintiff on his claim for breach of contract. The trial court found that

M had breached the partnership agreement and awarded the plaintiff,

inter alia, damages and attorney’s fees. On M’s appeal and the plaintiff’s

cross appeal to this court, held:

1. The trial court properly found that M breached § 3.02 of the partnership

agreement when he distributed revenues from the corporate account

to himself without regard for the required ratio of partnership assets in

his and the plaintiff’s capital accounts; the clear language of the partnership agreement provided that the allocation of partnership revenues

and expenses was to continue through the time of the final distributions,

and that distributions were to be made such that the plaintiff’s and M’s

capital account balances were to be in proportion to their ownership

interests in the partnership, and there was nothing in that portion of

the partnership agreement to suggest that the specifically designed balancing of accounts was to be abandoned when one partner gave notice

of his intention to withdraw from the partnership.

2. The trial court improperly concluded that M breached § 4.03 of the partnership agreement when he assigned corporate accounts receivable and

works in progress to a new law firm that he had formed; the restrictions

listed in § 4.03 pertained to the partnership’s dealings with third parties,

there was no actionable breach on the basis of § 4.03, as M’s assignment

of corporate assets did not create additional partnership losses or

expenses, and even if M could be deemed to have breached § 4.03 (b), the

sole remedy was the assignment of that expense to his capital account.

3. The trial court did not abuse its discretion when it ordered a direct

payment from M to the plaintiff rather than a reduction in M’s capital

account; because M breached the agreement by distributing partnership

assets to himself without observing the balance of the corporate

accounts, a reduction in his capital account would have been pointless,

as it would have permitted him to distribute assets to himself without

regard to the relative states of the accounts, and the partnership

agreement provided an exception to the limited liability of a partner

where, as here, M violated an express term of the partnership agreement,

which subjected him to personal liability for his breach of the partnership agreement.

4. The trial court’s award of attorney’s fees to the plaintiff pursuant to § 4.03
of the partnership agreement was improper and could not stand, as that

court erred in finding that M had breached § 4.03, and because the

court found no other basis for its award of attorney’s fees, that award

was vacated.

5. The trial court improperly failed to conclude that M breached his fiduciary

duty to the plaintiff; M took partnership assets over the objection of

the plaintiff, who received no benefit or consideration for the self-dealing

distributions made by M, the partnership agreement did not compromise

or expressly limit the parties’ duty of loyalty, and because the plaintiff’s

complaint had requested attorney’s fees for M’s breach of fiduciary duty,

the case had to be remanded for a determination of whether the plaintiff

was entitled to such fees and, if so, in what amount.

6. The trial court did not abuse its discretion in its method of calculating

damages; that court properly calculated the amount that would have

been distributed by the partnership to the plaintiff if M had adhered to

the requirements of the partnership agreement and the partnership’s

liabilities had not been satisfied predominantly by the plaintiff’s share,

and any additional funds placed in M’s capital account would have

been profits of the corporate department, to which the plaintiff was

not entitled.

7. The trial court did not commit clear error or abuse its discretion in finding

that the plaintiff waived his claim for an accounting; the partnership

agreement contained no absolute requirement for an accounting, which

is discretionary pursuant to statute (§ 34-339 [b]), the plaintiff litigated

his claims at trial and did not mention the request in his complaint for

an accounting until posttrial reargument, and even if there was no

waiver, the trial court’s decision denying an accounting was not an

abuse of discretion, as the trial and discovery constituted a remedy at

law that was available to the plaintiff, and the expense of an accounting

and the resulting delay outweighed whatever benefit would have been

gained by ordering an accounting.

Argued October 12, 2017—officially released April 17, 2018

Procedural History

Action to recover damages for, inter alia the named

defendant’s alleged breach of contract, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the named defendant

filed a counterclaim; thereafter, the matter was transferred to the Complex Litigation Docket and tried to

the court, Genuario, J.; judgment for the plaintiff on

the complaint in part and on the counterclaim; subsequently, the court granted the plaintiff’s motions for

reargument and attorney’s fees, and amended its judgment; thereafter, the court denied the named defendant’s motion for reargument, and the named defendant

appealed and the plaintiff cross appealed to this court;

subsequently, the court, Genuario, J., issued an articulation of its decision. Reversed in part; further proceedings.

William H. Champlin III, with whom, on the brief,

was Mark S. Gregory, for the appellant-appellee

(named defendant).

Timothy G. Ronan, with whom, on the brief, was

Assaf Z. Ben-Atar, for the appellee-appellant (plaintiff).
Opinion

BEACH, J. This action arises out of the dissolution of

a registered limited liability partnership. The defendant

Christopher G. Martin1 appeals, following a trial to the

court, from the judgment rendered in favor of the plaintiff, Mark P. Chioffi, on the count of the plaintiff’s complaint which alleged breach of contract. The trial court

awarded Chioffi $34,120 in compensatory damages,

$103,000 in attorney’s fees, and $6226.73 in costs. The

defendant claims on appeal that the court erred in (1)

finding a breach of § 3.02 of the parties’ partnership

agreement; (2) finding a breach of § 4.03 of the partnership agreement; (3) ordering the defendant to pay damages directly to the plaintiff rather than ordering a

reduction in the defendant’s capital account in the partnership; and (4) awarding attorney’s fees to the plaintiff.

The plaintiff cross appealed, claiming that the court (1)

erred in not finding a breach of fiduciary duty, as alleged

in count one of his complaint; (2) erred in its calculation

of damages; and (3) abused its discretion in holding

that the plaintiff waived his claim for an accounting.

We agree with the defendant’s second and fourth claims

and the plaintiff’s first claim. Accordingly, we reverse

in part the judgment of the court and remand the case

for a hearing on attorney’s fees. We otherwise affirm

the court’s judgment.

The parties, partners in Martin Chioffi LLP, a law

firm, entered into a partnership agreement in 2012; the

agreement by its terms was to be effective retroactively

to January 1, 2010. The agreement comprehensively

described and prescribed the operations of the partnership; a copy of the partnership agreement was an exhibit

before the court.

The agreement contemplated that revenue was to be

allocated between three capital accounts: the corporate

account, for which Martin was responsible; the trusts

and estates account, for which Chioffi was responsible;

and the ‘‘remaining’’ account, into which all other revenues were allocated. See § 3.01 (c). The balance of each

account was to be adjusted periodically by adding to

it the appropriately allocated share of partnership revenue, and subtracting from it the allocable share of

expenses and distributions to partners. See § 2.02.

The process used to determine the ‘‘calculation and

allocation of net profits and losses’’ was set forth in

article III of the agreement. As previously mentioned,

there were three capital accounts corresponding to the

three departments: corporate, trusts and estates, and

everything else. Section 3.02 (b). Revenues were initially allocated to the appropriate account. Section 3.02

(c). Expenses were also allocated among the three

departments. ‘‘Direct expenses’’ of each department

were to be allocated accordingly; ‘‘indirect expenses,’’

such as rent, utilities, and costs of administrative per-
sonnel, were allocated among the departments ‘‘in proportion to the number of billing professionals’’ in each

department. Section 3.01 (d) (ii). The net profits or

losses for each department were determined by subtracting the direct and indirect expenses attributed to

each department from the revenue so attributed. The

net profits for the corporate account were then allocated to Martin’s capital account, those of the trusts

and estates department to Chioffi’s capital account, and

net profits for the ‘‘remaining,’’ or other, department

were divided between Martin’s capital account and Chioffi’s capital account in proportion to the ownership

percentage of each partner. Section 3.01 (e) and (f).

Martin’s ownership interest was 57 percent and Chioffi’s

43 was percent. Schedule 1 of the partnership

agreement.

The allocation process did not in itself cause the

actual, physical transfer of funds; rather, the process

simply sorted revenues and expenses into separate capital accounts. Distribution of funds to partners was governed by § 3.02 of the agreement: ‘‘Distributions shall

be made monthly and at such other times as the partners

agree such that, following any such distribution, the

capital account balances of the partners shall be directly

proportionate to the ownership percentages of such

partners. Monthly distributions for determining net

income shall include cash paid to each partner, 401 (k)

contributions, all related expense for business, automobile, and certain entertainment for certain clients not

considered joint as it relates to the firm consistent with

past practices of the partnership.’’

The management of the partnership was consistent

with the allocation of revenues. Martin was the managing partner. Section 4.01. Article IV, entitled ‘‘Management; Restrictions,’’ indicated that the partnership was

to be ‘‘managed and the conduct of its business . . .

controlled (except as otherwise specifically provided

herein) by the partners’’ such that ‘‘any decisions pertaining to the provision of corporate services [were to]

be made by Martin in his sole discretion,’’ and Chioffi

enjoyed identical authority as to the trusts and estates

department. Section 4.02. Other decisions were to be

made by mutual consent.

Article IV also listed, in § 4.03, seven specific actions

which a partner was prohibited from performing except

with the consent of the other partner. These ‘‘restrictions’’ included, in part, compromising partnership

claims, committing the partnership to financial obligations, and selling or assigning an interest in the partnership. Any losses or expenses, including attorney’s fees,

arising from such transgressions were to be ‘‘allocated

exclusively to such partner’s capital account.’’ Section 4.03.

Further sections governed a partner’s withdrawal

from the partnership and its dissolution. Section 7.01
provided that a partner could withdraw at any time,

provided that the withdrawing partner was to give at

least ninety days notice before the effective date of

the withdrawal. Section 7.02 provided that upon the

withdrawal of a partner, ‘‘the partners shall dissolve

and liquidate the partnership pursuant to [article VIII].’’

Article VIII, in turn, set forth the procedures for dissolution and liquidation. The partners were to ‘‘work

together in good faith’’ to ‘‘immediately’’ wind up the

affairs and to ‘‘minimize to the greatest extent possible

the costs incurred’’ by the partnership or any partner.

Section 8.01. The costs which were incurred were to

be ‘‘allocated and apportioned to the partners in accordance with the departmental profit calculation.’’2

Id.

Section 8.02 provided for liquidation. If the partnership were dissolved, the partners were to be the ‘‘liquidating trustees’’ and were to take appropriate actions,

including making ‘‘final distributions’’ pursuant to § 8.03

and the Connecticut Uniform Partnership Act (act),

General Statutes § 34-300 et seq. The costs of dissolution and liquidation were to be expenses of the partnership, and were ‘‘to be allocated and apportioned

between Martin and Chioffi in accordance with their

ownership percentages . . . .’’ Section 8.02. The partners were to continue to operate the affairs of the partnership ‘‘until final distributions have been made

. . . .’’ Section 8.02.

According to § 8.03, the assets of the partnership,

‘‘net of partnership liabilities,’’ were to be distributed

‘‘upon liquidation . . . .’’ The net assets to be distributed at that time included ‘‘all accounts receivable,

works in progress and contingent fees with respect to

any partner [which were to] be allocated in accordance

with the departmental profit calculation,’’3 and any ‘‘special allocations’’ were to be determined in accordance

with the respective ownership percentages of the partners, unless otherwise agreed by the parties. Any other

assets were also to be distributed in accordance with

the ownership percentages. Id.

The following facts, as found by the trial court, and

procedural history are relevant to our resolution of the

claims on appeal. As the court stated in its memorandum of decision: ‘‘This action arises out of the dissolution of a limited liability partnership formed for the

practice of law. The dissolution was occasioned by the

voluntary withdrawal from the partnership of the defendant Martin, who owned a 57 percent interest in the

partnership. The plaintiff was the only other [equity]

partner. He owned a 43 percent interest. . . .

‘‘This dissolution did not occur under the best of

circumstances. Besides . . . deficient communication

between the partners and . . . different points of view,

the dissolution was plagued by two particularly troublesome and substantial issues. The first dealt with the
lease, to which the partnership was a party, and the

second dealt with the disproportionate balances

reflected in the partners’ capital accounts.’’ (Footnotes omitted.)

In its memorandum of decision, the court described

the partnership’s lease and its ramifications for the dissolution as follows: ‘‘In June, 2012, the partnership

entered into a lease that did not expire until December

31, 2017. The base monthly rent of the lease was

$24,916.67. Both parties described the lease as both a

liability and an asset. The lease required substantial

payments and was a substantial liability to the partnership. The rent payable was viewed by the parties to be

below fair market value and therefore was considered

a significant asset. Moreover, the partnership as a tenant

had various subtenants whose rent covered $11,961.67

of this partnership’s monthly rental obligation. Because

each party intended to form [his] own firm upon dissolution of the partnership, each partner initially had a

desire to remain in the premises or, at least, in a portion

of the premises. The plaintiff and the defendant, however, could not reach an agreement as to an allocation

of the space contained in the premises. Notably, neither

partner personally guaranteed or signed the lease in

[his] individual capacity, and the only obligor under

the lease was the limited liability partnership. Both the

plaintiff’s new firm . . . and the defendant’s new firm

. . . continued to occupy the space subsequent to the

dissolution of the partnership on November 15, 2013,

until such time as the defendant’s new firm vacated the

premises in June, 2014. From November 15, 2013, the

parties practiced law and operated their new firms independently of one another, communicating only when

necessary regarding their shared space and the winding

up process. The defendant’s new firm did not pay any

rent for its occupancy of this space to the partnership

or the lessor during the period between dissolution of

the partnership and its vacating of the premises in June

or, for that matter, thereafter. During the postdissolution period, the plaintiff contributed $12,600 to assist

the partnership in meeting its rental obligations. The

rent that was due the lessor was fully paid by September

1, 2014, by virtue of certain assets of the partnership

(cash remaining in the partnership accounts, accounts

receivable of the remaining departments, rent from the

subtenants, the plaintiff’s contribution as indicated and

finally by allocation of $35,000 of the partnership’s

$74,750 security deposit). Both [the] plaintiff and the

defendant individually entered into discussions with

the lessor concerning a new lease or leases, but no

agreement was reached until after the defendant’s firm

had vacated the premises. In August, 2014, the plaintiff’s

new firm and the lessor entered into a new lease, effective September 1, for the same space previously occupied by the partnership and at the same rental price.

The agreement between the plaintiff’s new firm and the
lessor also eliminated liability of the partnership for

the balance of the partnership’s leasehold obligations

and allowed the plaintiff’s new firm to continue to

receive the benefit of the rents payable by the subtenants. The partnership’s security deposit of $74,750 was

allocated as follows: $35,000 for the payment of the

partnership rental obligations up and through August

31, 2014, and $39,750 as a portion of the plaintiff’s new

firm’s security deposit.’’

The court found the following facts regarding the

state of the capital accounts and the liquidation of the

partnership: ‘‘[Although] all three departments of the

partnership were financially healthy, the corporate

department generated far more net income and,

because it had more billing professionals, was responsible for a larger share of the indirect costs of the partnership. During the last two years of the partnership’s

existence, the defendant took distributions from his

capital account [in] excess of the net income that was

allocable to his capital account on a cash basis. In other

words, he took more money than he made during that

time period and, in fact, on the date he gave notice of

his intent to withdraw, his capital account was negative

in excess of $150,000. This excessive distribution was,

at least in part, financed by increases in the partnership

credit line and increases in draws against that credit

line. These excessive distributions were done with the

knowledge and consent of the plaintiff, as was the activity regarding the partnership credit line. The defendant’s rationale for taking these distributions, as

expressed to the plaintiff, was based upon the fact that

the corporate department had very substantial accounts

receivable that eventually would more than offset the

distributions he was taking. In fact, the corporate

department did have substantial accounts receivable.

‘‘[Although] the plaintiff consented to these distributions, that consent was based upon the [defendant’s]

representations that draw[s] from the credit line which

financed the distributions would be repaid through the

collection of the corporate department accounts receivable in approximately six months. The credit line was

eventually, though well past the represented time frame,

paid in full through these corporate department assets

shortly before the dissolution of the firm. However, the

practice left the partners’ capital accounts in a relationship that was directly in contradiction to the express

provisions of the partnership agreement. The partnership agreement states that ‘distributions shall be made

monthly and at such other times as the partners agree

such that, following any such distribution, the capital

account balances of the partners shall be directly proportionate to the ownership percentage of such partners.’ In other words, at any given point in time, the

defendant’s capital account balance should be 57 percent of the total capital account balance of the two

partners, and the plaintiff’s capital account balance
should be 43 percent of that total. [Although] the plaintiff may have consented to distributions that were temporarily in excess of the amount [that] the defendant

was entitled to receive under the [partnership

agreement], there was no evidence that such consent

was intended to be a permanent amendment to the

partnership agreement. Nor is there any evidence that

such accommodation was intended to alter the financial

relationship between the partners or between the partners and the firm. Nor is there any evidence to suggest

that, upon dissolution and liquidation of the firm, the

plaintiff would not be entitled to be paid 100 percent

of his capital account or, at least, an amount equal to

43 percent of the firm’s capital after payment of the

firm’s liabilities.

‘‘Both partners had firm credit cards and both partners were allowed to use those credit cards for personal

expenses . . . . To the extent they did so, such personal expenses were treated as distributions to the

respective partner with a corresponding reduction in

the partner’s capital account. The defendant engaged

in this practice to a greater extent than the plaintiff,

particularly subsequent to June, 2013, when, as a result

of disagreements between the partners, the firm suspended monthly cash distributions. [Although] the personal expenses were properly accounted for, those

expenditures further reduced the defendant’s capital

account in relation to that of the plaintiff.

‘‘The result of all of this was that, on November 15,

2013, the date of the dissolution of the partnership, the

plaintiff’s capital account was $178,436 and the defendant’s capital account was $46,191. Moreover, the

defendant, acting in his capacity as liquidating trustee of

the partnership, assigned to himself all of the accounts

receivable and work[s] in progress of the corporate

department in a document dated November 16, 2013.

The defendant, by document also dated November 16,

2013, offered to assign to the plaintiff all of the accounts

receivable of the trust and estate departments. The

assignment of the corporate department work[s] in

progress and accounts receivable as of November 16,

2013 . . . had the effect of diverting from the partnership cash that would have brought the partners’ capital

accounts back to the proportional relationship required

by the partnership agreement. Moreover, the balance

sheet of the partnership indicates that, as of November

15, 2013, there were insufficient assets, and particularly

liquid assets, remaining in the partnership from which

the plaintiff could be paid the amount due him based

upon his capital account and its relationship to the

defendant’s capital account.

‘‘The plaintiff did not accept distribution of the trust

and [estate department’s] accounts receivable on or

about November 16, 2013. During the weeks following

November 16, 2013, up until at least December 31, 2013,
he continued to deposit the funds generated by those

receivables into the partnership account. This caused

his capital account balance to increase even further.

Accordingly, on December 31, 2013, the capital account

balance of the plaintiff was $279,856 and the capital

account balance of the defendant was $36,734. The

plaintiff did accept assignment of the accounts receivable of the trust and [estate department] on January

15, 2014, and, at that time, he withdrew $113,363 from

the partnership accounts with the consent of the defendant as a distribution of capital.

‘‘The difference in the approach[es] that the parties

took to the accounts receivable between November

15, 2013, and December 31, 2013, is reflective of the

difference in the parties’ approach[es] toward the winding up of the partnership business. [The defendant]

believed that, upon dissolution, the parties should distribute the assets as quickly as possible, leaving in the

firm accounts only [those] which [were] necessary to

pay the final expenses of the partnership and, to the

extent there were assets available beyond what was

necessary to pay the remaining obligations of the firm,

they should be distributed immediately to accommodate the ongoing business of the successor firms. [The

plaintiff] believed all assets of the firm, including

accounts receivable, should continue to be collected

until such time as all firm obligations had been paid or

otherwise dealt with, until the lease liability was

resolved and until an agreement on capital account

adjustments had been reached. Distribution should

occur subsequently. Whether because of a change in

viewpoint or as a practical necessity, [the plaintiff] in

January, 2014, took a cash distribution of $113,363 with

the defendant’s consent. In the spring of 2014, [the

plaintiff] also took a $64,000 cash distribution without

the defendant’s consent.’’ (Footnotes omitted.)

After the date of the defendant’s withdrawal letter,

but prior to the partnership’s date of dissolution, the

plaintiff brought this action seeking, among other

things, an injunction to prevent the defendant from

winding up the affairs or liquidating and distributing

the assets of the partnership. The injunction was denied.

In the five count operative complaint, the plaintiff

alleged that the defendant breached his fiduciary duty,

breached the partnership agreement and converted

partnership property. He also sought an order for judicial oversight and an accounting. The defendant filed

a counterclaim alleging breach of contract and statutory

theft, and seeking damages and attorney’s fees. After

a trial to the court, the court found that the defendant

breached the partnership agreement and awarded damages of $30,384 to the plaintiff, which the court later

amended to $34,120. The court also awarded $103,000

in attorney’s fees and $6226.73 in costs to the plaintiff.

The defendant’s claim for attorney’s fees was denied.

The defendant appealed and the plaintiff cross
appealed. We will set forth additional facts as necessary.

I

DEFENDANT’S APPEAL

The defendant claims on appeal that the court erred

in (1) finding a breach of § 3.02 of the partnership

agreement; (2) finding a breach of § 4.03 of the partnership agreement; (3) ordering the defendant to pay damages directly to the plaintiff rather than reducing the

defendant’s capital account; and (4) awarding attorney’s fees and costs to the plaintiff.

A

The defendant first claims that the trial court erred

in finding a breach of § 3.02 of the partnership

agreement.4 We disagree.

‘‘Except as otherwise provided [in this section], relations among the partners and between the partners

and the partnership are governed by the partnership

agreement. . . .’’ General Statutes § 34-303 (a).

‘‘Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract

language, the determination of what the parties

intended by their contractual communications is a question of law . . . subject to plenary review by this court.

. . . In giving meaning to the terms of a contract, the

court should construe the agreement as a whole, and

its relevant provisions are to be considered together.

. . . The contract must be construed to give effect to

the intent of the contracting parties. . . . This intent

must be determined from the language of the instrument

and not from any intention either of the parties may

have secretly entertained. . . . [I]ntent . . . is to be

ascertained by a fair and reasonable construction of

the written words and . . . 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] . . . there is

clear and definitive contract language, the scope and

meaning of that language is not a question of fact but

a question of law. . . . In such a situation our scope

of review is plenary, and is not limited by the clearly

erroneous standard. . . . Whether a contract is ambiguous is a question of law subject to plenary review.’’

(Citations omitted; internal quotation marks omitted.)

Schwartz v. Family Dental Group, P.C., 106 Conn. App.

765, 771, 943 A.2d 1122, cert. denied, 288 Conn. 911,

954 A.2d 184 (2008).

There is an animating difference between the parties’

interpretations of the partnership agreement. The

defendant’s position is that once the date of dissolution

arrived, in this case November 15, 2013, he was entitled

to withdraw for his sole benefit all of the assets of the

corporate department without regard to the provisions

of article III of the agreement. The plaintiff, on the
other hand, maintains that distributions throughout the

liquidation process were subject to article III, and that,

in general, partnership expenses were to be subtracted

from revenues prior to distribution and that distributions were to be made such that the 57 to 43 ratio of

partnership assets was to be maintained. We agree with

the plaintiff.

There is no merit to the defendant’s contention that

he was free, during the liquidation process, to assign

all corporate revenue to himself without regard to

expenses and the maintenance of the ratio of partnership assets in the partners’ capital accounts. The

agreement unambiguously required the prescribed distribution procedures to continue through the period of

liquidation. First, § 8.01, entitled ‘‘Dissolution of Partnership,’’ provided that the costs ‘‘in respect of such

dissolution’’ were to be allocated in accordance with

the departmental profit calculation, which, as we have

seen, allocated revenues to the several departments,

then assigned expenses to each department, and finally

provided that the required ratio between the capital

accounts was to be realized immediately following any

distribution (except perhaps the final distribution). Second, in § 8.02, the agreement provided that upon dissolution, the partners became liquidating trustees and that

the expenses were to be apportioned; the business of

the partnership could be continued until the final distributions were made. Third, as spelled out in § 8.03, upon

liquidation, all assets of the partnership net of partnership liabilities were to be distributed according to the

departmental profit calculation. The agreement, then,

expressly contemplated that the allocation process was

to continue from the date of dissolution—here, November 15, 2013—through the period of liquidation until

and including, at least with respect to the ‘‘remaining’’

capital account, the final distribution. There is nothing

in the agreement indicating that the allocation process

was to cease at the date of dissolution, such that either

partner was free to appropriate partnership assets.5

As previously cited, the specific provisions of article

VIII, pertaining to dissolution and liquidation, refer to

the distribution of net assets and adherence to the

departmental profit calculation. The final distribution

was to be made ‘‘in accordance with the departmental

profit calculation.’’ Section 8.01. Similarly, there is nothing in article III, which details the calculation and balancing of accounts, to suggest that the specifically

designed balancing of accounts was to be abandoned

when one partner gave notice of his intention to withdraw. In sum, the clear language of the agreement provided that the allocation of partnership revenues and

expenses was to continue through the time of the final

distributions, and § 3.02 provided that distributions

were to be made such that, after each distribution, the

capital account balances were to be in proportion to the

partners’ ownership interests. By distributing revenues
from the corporate account to himself without regard to

the required ratio of partnership assets in the partners’

capital accounts, the defendant breached § 3.02 of the

agreement, as the court correctly determined.

The trial court noted that ‘‘[t]he defendant’s assignment to himself of the accounts receivable and work[s]

in progress of the corporate department upon dissolution, under some circumstances, would be harmless to

the plaintiff’’ because the defendant would have been

entitled ultimately to the net profits under the partnership agreement’s terms. (Emphasis in original.) This is

entirely correct; however, with the capital accounts out

of balance, the plaintiff was left bearing a disproportionate share of the remaining liabilities postdissolution.

Thus, we agree with the trial court that the defendant’s

assignment of the corporate department’s accounts

receivable and works in progress without regard to

the ratio of partnership assets in the partners’ capital

accounts, as reconciled pursuant to the departmental

profit calculation, breached § 3.02 of the partnership

agreement.

B

The defendant also challenges the court’s conclusion

that he breached § 4.03 of the partnership agreement.

Section 4.03, as previously discussed, concerned

restrictions on the partners’ conduct. The defendant

claims that because he had sole discretion regarding

the provision of corporate services pursuant to § 4.02

(a), and that § 4.03 is subject to § 4.02, he did not breach

§ 4.03 by assigning the corporate accounts receivable

and works in progress to his new firm. We conclude

that there was no breach of § 4.03.

‘‘The elements of a breach of contract action are the

formation of an agreement, performance by one party,

breach of the agreement by the other party and damages.’’ (Internal quotation marks omitted.) Chiulli v.

Zola, 97 Conn. App. 699, 706–707, 905 A.2d 1236 (2006).

If the plaintiff suffers no actual damage, there can be

no recovery. See Waicunas v. Macari, 151 Conn. 134,

139, 193 A.2d 709 (1963).

Article IV of the partnership agreement, entitled

‘‘Management; Restrictions,’’ pertained to governance

of the partnership. Section 4.01 named the defendant

as managing partner, except in cases where he is unable

to act. Section 4.02 provided for decision-making power

pertaining to the provision of services within the three

departments. Section 4.03 was a list of restrictions on

the partners’ activities. The section concluded: ‘‘If a

partner commits any breach of the [restrictions], any

losses or other expenses (including but not limited to

reasonable [attorney’s] and [accountant’s] fees) on

account thereof shall be allocated exclusively to such

partner’s capital account.’’

At trial, the court found that the defendant breached
§ 4.03 (b) by assigning corporate accounts receivable

and works in progress to his new firm. Section 4.03

(b) provided that a partner shall not ‘‘assign, transfer,

pledge, compromise or release any of the partnership’s

claims, or debts, except upon payment in full, or arbitrate, or consent to the arbitration of any of its disputes

or controversies . . . .’’

Each of the restrictions listed in § 4.03 pertained to

the partnership’s dealings with third parties, and the

final paragraph of § 4.03 provided that the remedy for

a partner’s breach of a restriction was the allocation

of a resulting loss or expense to that partner’s capital

account. Section 4.03 created an accounting method for

penalizing breaching partners for liabilities they might

incur for the partnership that may not otherwise be

assessed under either General Statutes § 34-327 (c) or

§ 2.04 of the partnership agreement. See footnotes 6

and 7 of this opinion. Principles of limited liability shield

the partners from indemnification for debts and

expenses of the partnership, with some exceptions, but

the list of restrictions in § 4.03 provided specific exceptions to immunity, such that only the breaching partner’s account was to be affected, and, when the time

came for distributions, the amount of the breaching

partner’s distribution would be decreased accordingly.

The function of § 4.03, then, was to allocate partnership

losses or obligations to a single partner if that partner

had violated a restriction listed in that section.

When the defendant assigned corporate assets to himself or to his new firm, however, he did not create

additional liabilities for the partnership. He instead

altered the balance of corporate accounts and prevented orderly payment of existing liabilities. Thus,

there were no partnership losses or expenses ‘‘on

account’’ of the defendant’s breach, as required in the

partnership agreement. Without partnership losses or

expenses, there was no actionable breach of contract

on the basis of § 4.03. Therefore, the trial court erred in

finding a breach of § 4.03 of the partnership agreement,

which, in itself, caused damages.

Even if the defendant’s assignment of assets to himself could be deemed to be a breach of § 4.03 (b), as

found by the court, the sole remedy for the breach was

to be the assignment of that expense to the breaching

partner’s capital account. In the circumstances of this

case, the breach occurred, as we previously held in part

I A of this opinion, when the distributions were made

to the defendant without regard for the balance of

accounts in violation of § 3.02. The breach causing

harm, then, was the breach of § 3.02, and the damages

are the same under either theory of recovery.

C

The defendant also claims that the trial court erred

in ordering the defendant to pay damages to the plaintiff
directly rather than ordering only a reduction in the

defendant’s capital account, contrary to provisions of

both the partnership agreement and the act. We are

not persuaded.

As noted in part I A of this opinion, our review of

unambiguous contract provisions is plenary. Schwartz

v. Family Dental Group, P.C., supra, 106 Conn. App.

771. The interpretation and construction of statutes are

also subject to plenary review. See Magee v. Commissioner of Correction, 105 Conn. App. 210, 214, 937 A.2d

72, cert. denied, 286 Conn. 901, 943 A.2d 1102 (2008).

‘‘Our standard of review of an award of damages . . .

is well settled. [T]he trial court has broad discretion in

determining whether damages are appropriate. . . . Its

decision will not be disturbed on appeal absent a clear

abuse of discretion.’’ (Internal quotation marks omitted.) Aurora Loan Services, LLC v. Hirsch, 170 Conn.

App. 439, 447, 154 A.3d 1009 (2017). ‘‘In determining

whether there has been an abuse of discretion, every

reasonable presumption should be given in favor of the

correctness of the court’s ruling. . . . Reversal is

required only [when] an abuse of discretion is manifest

or [when] injustice appears to have been done.’’ (Internal quotation marks omitted.) Weiss v. Smulders, 313

Conn. 227, 261, 96 A.3d 1175 (2014).

The defendant contends that § 2.04 of the partnership

agreement, particularly subsections (a) and (b), prevented his being found liable directly to the plaintiff.6

He adds that the language of § 2.04 largely tracked the

language of § 34-327 (c),7 and that these provisions are

both unambiguous.

The defendant quite correctly contends that pursuant

to both the partnership agreement and the statutory

provision, a partner is not personally liable for the debts

of the partnership or another partner. The defendant

also acknowledges that, pursuant to § 34-327 (d), ‘‘[t]he

provisions of subsection (c) of this section shall not

affect the liability of a partner in a registered limited

liability partnership for his own negligence, wrongful

acts or misconduct . . . .’’ The defendant asserts that

in this case the court found no negligence, wrongful

acts, or misconduct. In the context of deciding whether

the defendant was entitled to attorney’s fees, however,

the court found that ‘‘[w]hen the defendant assigned to

himself the corporate accounts receivable, to the extent

that it exceeded the ability of the firm to obtain receipts

necessary to bring the capital accounts back to their

appropriate proportions, he did this over the objection

of the plaintiff and this constituted wilful misconduct.’’

This finding of the court, although enunciated in a separate memorandum of decision regarding, among other

issues, attorney’s fees, is clear and relevant, and negates

the defendant’s argument that § 34-327 bars a determination of liability.8
Similarly, the partnership agreement itself expressly

sets forth an exception to otherwise limited liability:

‘‘[N]o partner shall be liable, responsible, or accountable in damages or otherwise to the partnership or to

any other partner . . . for any losses, claims, damages,

or liabilities arising from . . . any act performed, or

any omission to perform any act, by such partner in

[his] capacity as a partner, except by reason of acts or

omissions in violation of the express terms of this

agreement . . . .’’ (Emphasis added.) Section 2.04 (a)

(ii). The defendant violated § 3.02, an express term of

the partnership agreement. Thus, pursuant to the terms

of the agreement, the defendant may be personally liable for his breach of the partnership agreement.

The defendant additionally claims that the only remedy for a breach is a reduction in his capital account;

he points to several sections of the agreement for support. He urges that § 4.03 provided that the only remedy

for violating that section is a corresponding reduction

of that partner’s capital account, but, as we decided in

part I B of this opinion, there was no actionable breach

of article IV in any event. The defendant also points

out that § 3.03 of the partnership agreement required

that all expenses and losses of the partnership resulting

from a partner’s wrongful act are to be charged to

the partner’s capital account.9 The defendant’s actions,

however, caused an internal maladjustment of accounts

rather than a loss to the partnership.

More to the point, and undermining the defendant’s

claims regarding damages, is the simple proposition

that the defendant breached the agreement because he

distributed partnership assets to himself without

observing the balance of corporate accounts. If the sole

remedy for the breach of a duty to a partner was to

reduce the breaching partner’s capital account, but then

the breaching partner could nonetheless blithely distribute assets to himself without regard to the relative

states of the accounts, then that remedy would be rendered utterly meaningless. The remedy for most

breaches, to be sure, was reduction of the particular

capital account; when the time came for distribution,

the remedy would functionally be realized. When the

breach is the distribution, however, the situation is

intrinsically different, and the parties’ agreement did

not require merely a further pointless reduction in a

capital account—especially after liquidation. The court

did not abuse its discretion in ordering a direct payment

from the defendant to the plaintiff.

D

The defendant finally claims that the trial court erred

in awarding attorney’s fees to the plaintiff. The court

awarded attorney’s fees pursuant to § 4.03 of the partnership agreement and then concluded that Chioffi

should be indemnified for this expense pursuant to
§ 2.04 (c). As we have determined in part I B, however,

the court erred in finding an actionable breach of contract pursuant to § 4.03. The provision in § 4.03 allowing

for attorney’s fees was expressly limited to breaches

of the ‘‘restrictions’’ of that section. Because no other

basis for attorney’s fees was found by the court,10 we

vacate the award of attorney’s fees under § 4.03.

II

PLAINTIFF’S CROSS APPEAL

The plaintiff claims on cross appeal that the court

(1) erred in not finding a breach of fiduciary duty; (2)

erred in its calculation of damages; and (3) abused its

discretion in finding that the plaintiff waived his claim

for an accounting.

A

The plaintiff first claims that the trial court erred in

declining to conclude that the defendant breached a

fiduciary duty. We agree.

‘‘[T]he determination of whether a duty exists

between individuals is a question of law. . . . Only if

a duty is found to exist does the trier of fact go on to

determine whether the defendant has violated that duty.

. . . When the trial court draws conclusions of law,

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.) Biller Associates v. Peterken,

269 Conn. 716, 721–22, 849 A.2d 847 (2004). Alternatively, our Supreme Court has upheld jury instructions

that state that it is a question of law as to what constitutes a breach of a duty, but a question of fact as to

whether such a breach occurred. Dunbar v. Jones, 87

Conn. 253, 258–59, 87 A. 787 (1913); see also Stevens

v. Pierpont, 42 Conn. 360, 361–62 (1875) (‘‘[w]hether

certain facts do or do not constitute a breach may, in

some circumstances, be a question of law; or at least,

a mixed question of law and fact’’). Appellate review

of facts on which a claim of breach of fiduciary duty

is based is subject to the clearly erroneous standard.

See Spector v. Konover, 57 Conn. App. 121, 126, 747

A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000).

‘‘It is a thoroughly well-settled equitable rule that any

one acting in a fiduciary relation shall not be permitted

to make use of that relation to benefit his own personal

interest. This rule is strict in its requirements and in

its operation. It extends to all transactions where the

individual’s personal interests may be brought into conflict with his acts in the fiduciary capacity, and it works

independently of the question whether there was fraud

or whether there was good intention. Where the possibility of such a conflict exists there is the danger

intended to be guarded against by the absoluteness of

the rule. The underlying thought is that an agent or

other fiduciary should not unite his personal and his
representative characters in the same transaction; and

equity will not permit him to be exposed to the temptation, or be brought into a situation where his own personal interests conflict with the interests of his principal

and with the duties he owes to his principal. The rule

applies [to] partners . . . .’’ (Emphasis added.) Mallory v. Mallory Wheeler Co., 61 Conn. 131, 137–38, 23

A. 708 (1891); Spector v. Konover, supra, 57 Conn.

App. 128.

‘‘[P]roof of a fiduciary relationship imposes a twofold

burden on the fiduciary. First, the burden of proof shifts

to the fiduciary; and second, the standard of proof is

clear and convincing evidence. Once a fiduciary relationship is found to exist, the burden of proving fair

dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing

is not the ordinary standard of proof of fair preponderance of the evidence, but requires proof . . . by clear

and convincing evidence . . . . We have recognized

that, generally, partners are bound in a fiduciary relationship and act as trustees toward each other and

toward the partnership.’’ (Citation omitted; internal

quotation marks omitted.) Oakhill Associates v.

D’Amato, 228 Conn. 723, 726–27, 638 A.2d 31 (1994).

‘‘The fiduciary duty of loyalty is breached when the

fiduciary engages in self-dealing by using the fiduciary

relationship to benefit [his or] her personal interest.’’

Mangiante v. Niemiec, 82 Conn. App. 277, 284, 843 A.2d

656 (2004).

The first count of the operative complaint alleged

that the defendant breached his fiduciary duty. The

count included detailed factual allegations. Included

were allegations that (1) the defendant and the plaintiff

were partners in a limited liability partnership; (2) § 3.02

required any distributions to be made such that, following any distribution, the capital accounts balances of the

partners were to be proportionate to their ownership

interests; (3) Martin was the ‘‘managing partner’’; (4)

on dissolution, the partners became liquidating trustees;

(5) the defendant caused distributions such that balances remained disproportionate, thus violating § 3.02

of the agreement; and (6) the defendant breached his

fiduciary duties as a partner and as a liquidating

trustee.11

As we stated at some length previously in this opinion, the court found the relevant factual allegations to

be true. In its memorandum of decision, however, the

court rendered judgment in favor of the plaintiff only

as to count four, which alleged breach of contract. With

no explanation, the court rendered judgment in favor

of the defendant ‘‘on the remaining counts of the complaint.’’ In the unusual circumstances presented, we

hold that the court erred in not concluding that the

defendant breached his fiduciary duty, in light of the

facts which the court found.12
The elements which must be proved to support a

conclusion of breach of fiduciary duty are: ‘‘[1] [t]hat

a fiduciary relationship existed which gave rise to . . .

a duty of loyalty . . . an obligation . . . to act in the

best interests of the plaintiff, and . . . an obligation

. . . to act in good faith in any matter relating to the

plaintiff; [2] [t]hat the defendant advanced his or her

own interests to the detriment of the plaintiff; [3] [t]hat

the plaintiff sustained damages; [and] [4] [t]hat the damages were proximately caused by the fiduciary’s breach

of his or her fiduciary duty.’’ (Emphasis omitted; internal quotation marks omitted.) Rendahl v. Peluso, 173

Conn. App. 66, 100, 162 A.3d 1 (2017). As a partner and

liquidating trustee, the defendant was in a fiduciary

relationship with the plaintiff. See Oakhill Associates

v. D’Amato, supra, 228 Conn. 727. Further, the court

found, on voluminous facts, a breach of § 3.02, from

which it could only be concluded that the defendant

advanced his interests to the detriment of the plaintiff’s interests.

Where a fiduciary relationship exists, the burden

shifts to the fiduciary to show fair dealing by clear and

convincing evidence. Id., 726–27. On the facts found,

however, the court could not logically have concluded

that the defendant sustained his burden to show fair

dealing by clear and convincing evidence.

‘‘Important factors in determining whether a particular [self-dealing] transaction is fair include a showing

by the fiduciary: (1) that he made a free and frank

disclosure of all the relevant information he had; (2)

that the consideration was adequate . . . (3) that the

principal had competent and independent advice before

completing that transaction . . . [and] (4) the relative

sophistication and bargaining power among the parties.’’13 (Citation omitted; internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn.

206, 228, 635 A.2d 798 (1994). This standard was later

invoked in Spector v. Konover, supra, 57 Conn. App.

121. In Spector, the plaintiff general partner claimed

that his partners, the defendants, had breached their

fiduciary duties by diverting funds from the partnership

to other properties owned by one of the codefendants.

Id., 122–26. The trial court concluded that, although the

defendants owed the plaintiff a fiduciary duty, ‘‘they

proved by clear and convincing evidence that they dealt

with the plaintiff fairly and that they breached no fiduciary duty.’’ Id., 126. This court reversed the trial court’s

judgment in favor of the defendants, holding that ‘‘[t]he

defendants’ practice of diverting [partnership] funds to

other entities and retaining interest earned on [those]

partnership funds constitute[d] a breach of fiduciary

duty.’’ Id., 127–28. Further, this court concluded that

the misuse of partnership property for personal gain

was ‘‘a clear case of self-dealing and a violation of [the

defendants’] fiduciary duty to the plaintiff.’’ Id., 128.
This court then considered the aforementioned Zeller

factors, and held that the defendants’ failure to make

free and frank disclosure thwarted any attempt to claim

fair dealing. See id., 128–30.

Here, the defendant took partnership assets, at least

some of which could have been used to pay partnership

liabilities, and left Chioffi ‘‘holding the bag’’ while the

defendant’s capital account was negative. Although the

defendant did inform the plaintiff of his intentions and

the parties were both sophisticated lawyers, in this case

the defendant proceeded over the objection of the plaintiff, who received no benefit or consideration for the

self-dealing distributions made by the defendant.14

The defendant contends that he nonetheless violated

no fiduciary duty. He urges in his brief that the language

of the partnership agreement provided that the parties

have no fiduciary obligations ‘‘except as may be provided under this Agreement and by other applicable

law.’’ The defendant has omitted a term: § 2.04 (a) (ii)

provided that ‘‘no partner . . . has any fiduciary obligation . . . except as may be provided under this

agreement, the act and by other applicable law.’’

(Emphasis added.)

The act expressly provides that ‘‘[a] partner’s duty

of loyalty to the partnership and other partners is limited to the following: (1) To account to the partnership

and hold as trustee for it any property, profit or benefit

derived by the partner in the conduct and winding up

of the partnership business . . . .’’; General Statutes

§ 34-338 (b); and General Statutes § 34-303 (b) (3) provides in relevant part that a partnership agreement may

not ‘‘[e]liminate the duty of loyalty . . . .’’ The duty of

loyalty may also be found in ‘‘other applicable law’’; this

court held in Springfield Oil Services, Inc. v. Conlon,

77 Conn. App. 289, 302, 823 A.2d 345 (2003), that ‘‘[t]he

terms of a limited partnership agreement cannot negate

the fiduciary duty of the general partner even where

the relationship and terms of a contract between the

fiduciary and its affiliate are disclosed and even where

the partnership involves sophisticated parties.’’ The

partnership agreement, then, did not compromise or

expressly limit the duty of loyalty as prescribed by law.

On the facts found by the court, we hold that the court

erred in not concluding that the defendant breached

his fiduciary duty to the plaintiff. The compensatory

damages, however, remain those found by the court for

the breach of contract. Both breaches caused the same

harm, the disproportionate corporate accounts after

distribution. The court awarded compensatory damages for breach of contract, and courts ought not countenance duplicative damages.

Breach of fiduciary duty, however, is a tort; Ahern

v. Kappalumakkel, 97 Conn. App. 189, 192 n.3, 903 A.2d

266 (2006); and punitive damages may result from a
breach of fiduciary duty. See Rendahl v. Deluso, supra,

173 Conn. App. 100–101. The complaint requested attorney’s fees for the breach of fiduciary duty, and attorney’s fees may, where found to be appropriate, be

allowed as damages for breach of fiduciary duty. Punitive damages in this context generally are limited to

attorney’s fees and costs. Hylton v. Gunter, 313 Conn.

472, 474, 97 A.3d 970 (2014).15

The court awarded attorney’s fees, but its award was

premised on a breach of § 4.03 of the partnership

agreement and was limited to work performed on that

particular issue. Because any award of punitive damages would instead arise from a breach of fiduciary

duty, the analysis may differ. Also, ‘‘[a]n award of attorney’s fees is not a matter of right. Whether any award

is to be made and the amount thereof lie within the

discretion of the trial court, which is in the best position

to evaluate the particular circumstances of a case.’’

(Internal quotation marks omitted.) LaMontagne v.

Musano, Inc., 61 Conn. App. 60, 63–64, 762 A.2d 508

(2000). Finally, in order for a court to award punitive

damages, ‘‘the pleadings must allege and the evidence

must be sufficient to allow the trier of fact to find that

the defendant exhibited a reckless indifference to the

rights of others or an intentional and wanton violation

of those rights.’’ (Internal quotation marks omitted.)

Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 878, 124

A.3d 847 (2015). On remand, the trial court is to determine whether the plaintiff is entitled to attorney’s fees

because of the defendant’s breach of fiduciary duty,

and, if so, in what amount.

B

The plaintiff next claims that the trial court erred in

failing to render judgment against the defendant for the

full amount of damages resulting from the defendant’s

conduct. The plaintiff claims that the defendant should

be ordered to return to the partnership all funds

diverted by him so that the plaintiff in turn can receive

the full amount of his corrected capital account. We

are not persuaded that there was reversible error in

this regard.

The plaintiff cites no authority for this claim other

than a general rule of damages. It appears that the

plaintiff claims that he would be able to obtain more

of the partnership assets if the defendant were required

to return the value of all of the diverted corporate assets

to the partnership. We disagree with his claim.

‘‘The assessment of damages is peculiarly within the

province of the trier and the award will be sustained

so long as it does not shock the sense of justice. The

test is whether the amount of damages awarded falls

within the necessarily uncertain limits of fair and just

damages. . . . There are no unbending rules as to the
evidence by which [damages for breach of contract]

are to be determined. . . . In making its assessment

of damages for breach of [any] contract the trier must

determine the existence and extent of any deficiency

and then calculate its loss to the injured party. The

determination of both of these issues involves a question of fact which will not be overturned unless the

determination is clearly erroneous.’’ (Citation omitted;

internal quotation marks omitted.) Chila v. Stuart, 81

Conn. App. 458, 466–67, 840 A.2d 1176, cert. denied,

268 Conn. 917, 847 A.2d 311 (2004).

The court’s theory in awarding damages was to calculate the amount that would have been distributed by

the partnership to the plaintiff if the defendant had

adhered to the requirements of the partnership

agreement, and the liabilities had not been satisfied

predominantly by the plaintiff’s share. The court

engaged in a detailed analysis, which included a consideration of the plaintiff’s benefiting from a transfer of

the security deposit and credit for rent to the plaintiff’s

new firm. Any additional funds placed in the defendant’s

capital account necessarily would have been profits of

the corporate department, to which the plaintiff was

not entitled once the departmental profit calculation

was performed. The trial court did not abuse its discretion in its method of calculating damages.16

C

The plaintiff finally claims that the trial court abused

its discretion by holding that the plaintiff waived his

claim for an accounting. We disagree.

‘‘Waiver is the intentional relinquishment or abandonment of a known right or privilege. . . . Waiver does

not have to be express, but may consist of acts or

conduct from which waiver may be implied.’’ (Internal

quotation marks omitted.) MSO, LLC v. DeSimone, 313

Conn. 54, 64, 94 A.3d 1189 (2014). ‘‘Waiver is a question

of fact. . . . [W]here the factual basis of the court’s

decision is challenged we must determine whether the

facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those

facts are clearly erroneous. . . . [T]he trial court’s conclusions must stand unless they are legally or logically

inconsistent with the facts found or unless they involve

the application of some erroneous rule of law material

to the case. . . . [V]arious statutory and contract rights

may be waived.’’ (Citations omitted; internal quotation

marks omitted.) AFSCME, Council 4, Local 704 v. Dept.

of Public Health, 272 Conn. 617, 622–23, 866 A.2d 582

(2005).

i

We consider (1) whether an accounting can be waived

and (2) whether the court clearly erred in finding a

waiver. We hold that an accounting can be waived and
that the court did not abuse its discretion in finding

that the plaintiff waived his claim.

a

‘‘As a general rule, both statutory and constitutional

rights and privileges may be waived.’’ (Internal quotation marks omitted.) Dinan v. Patten, 317 Conn. 185,

195, 116 A.3d 275 (2015). The remedy of an accounting

is codified in General Statutes § 52-401, which provides:

‘‘In any judgment or decree for an accounting, the court

shall determine the terms and principles upon which

such accounting shall be had.’’ Thus, the remedy is

statutory.

In years past, the common law of our state mandated

an accounting if certain criteria were met, including

the existence of a fiduciary relationship. See, e.g., Zuch

v. Connecticut Bank & Trust Co., 5 Conn. App. 457,

460, 500 A.2d 565 (1985) (‘‘[t]he fiduciary relationship

is in and of itself sufficient to form the basis for [an

accounting]’’). In fact, an accounting was a prerequisite

to any action at law upon the termination of a partnership. See Weidlich v. Weidlich, 147 Conn. 160, 163–64,

157 A.2d 910 (1960). ‘‘A final account is the one great

occasion for a comprehensive and effective settlement

of all partnership affairs. All the claims and demands

arising between the partners should be settled upon

such an accounting.’’ Id., 165.

Over the years, the need for a formal judicial accounting has evolved, such that courts of other jurisdictions

have held that ‘‘an action can be maintained by one

partner against another, even where the partnership

transaction is the basis of the suit, if the facts are such

that no complex accounting involving a variety of partnership transactions is necessary.’’ Hanes v. Giambrone, 14 Ohio App. 3d 400, 404, 471 N.E.2d 801 (1984);

see also Moody v. Headrick, 247 Ala. 455, 457, 25 So.

2d 137 (1946); Lau v. Valu-Bilt Homes, Ltd., 59 Haw.

283, 290, 582 P.2d 195 (1978); Balcor Income Properties,

Ltd. v. Arlen Realty, Inc., 95 Ill. App. 3d 700, 702, 420

N.E.2d 612 (1981); Clarke v. Mills, 36 Kan. 393, 397, 13

P. 569 (1887); Kolb v. Dietz, 454 S.W.2d 632, 636 (Mo.

App. 1970); Auld v. Estridge, 86 Misc. 2d 895, 900–901,

382 N.Y.S.2d 897 (1976), aff’d, 58 App. Div. 2d 636, 395

N.Y.S.2d 969, leave to appeal denied, 43 N.Y.2d 641, 371

N.E.2d 830, 401 N.Y.S.2d 1025 (1977); Zimmerman v.

Lehr, 176 N.W. 837, 837 (N.D. 1920); Doyle v. Polle, 121

Vt. 335, 338, 157 A.2d 226 (1960). Our Superior Court,

in Canton West Associates v. Miller, 44 Conn. Supp.

321, 325–27, 688 A.2d 1360 (1995), adopted this more

flexible standard in reaching its decision.

The more flexible approach finds some support in our

appellate precedent. See Mankert v. Elmatco Products,

Inc., 84 Conn. App. 456, 460, 854 A.2d 766 (‘‘[a]n

accounting is not available in an action where the

amount due is readily ascertainable’’ [internal quotation
marks omitted]), cert. denied, 271 Conn. 925, 859 A.2d

580 (2004). Likewise, after Canton West Associates, the

General Assembly revised the act to allow a partner to

‘‘maintain an action against . . . another partner for

legal or equitable relief, with or without an accounting

as to partnership business . . . .’’ (Emphasis added.)

General Statutes § 34-339 (b).

Under current law, an accounting is not mandatory

merely because it is requested: many situations may

require a formal judicial accounting; in others, discovery may suffice. In the absence of an absolute requirement in the partnership agreement, § 34-339 (b)

provides that an accounting is discretionary, and the

statutory provision in this regard supersedes vestigial

common law to the contrary. See Brennan v. Brennan

Associates, 293 Conn. 60, 92, 977 A.2d 107 (2009)

(‘‘[w]hen the . . . [statute] articulating a public policy

also includes certain substantive limitations in scope

or remedy, these limitations also circumscribe the common law’’ [internal quotation marks omitted]). The statutory provision echoes a general principle of equity.

See Papallo v. Lefebvre, 172 Conn. App. 746, 763, 161

A.3d 603 (2017) (‘‘[t]he determination of what equity

requires in a particular case [is] a matter for the discretion of the trial court’’ [internal quotation marks omitted]). An accounting, then, is waivable.

b

We turn to the issue of whether the plaintiff waived

any ability to require an accounting. In MSO, LLC v.

DeSimone, supra, 313 Conn. 64, our Supreme Court

reaffirmed the principle that waiver may be found

‘‘when a party engages in substantial litigation without

asserting its right to arbitrate.’’ Analogously, the court

here found that the plaintiff, having requested an

accounting in his complaint, nonetheless proceeded to

trial, in which the finances of the partnership were

litigated at length. The plaintiff later reasserted the

accounting claim after a decision had been issued.

The trial court, in its articulation, clarified and stated:

‘‘[T]he plaintiff included a . . . count for breach of contract . . . specifically breach of the [partnership

agreement]. Consistent with [that] count . . . during

seven days of trial, the plaintiff and the defendant introduced detailed evidence concerning the obligations and

rights of the parties pursuant to the [partnership

agreement], [and] the financial transactions that had

occurred consistent with and inconsistent with the

terms of the [partnership agreement]. . . . Additionally, both the plaintiff and [the] defendant testified at

length concerning these documents and the various

transactions that preceded the dissolution of the partnership, as well as transactions that occurred subsequent to the dissolution of the partnership.

‘‘The plaintiff chose a particular approach during the
trial. Rather than merely establish the relationship

between the plaintiff, the defendant, and the partnership, as well as a demand for an accounting . . . the

plaintiff, consistent with [his] breach of contract count,

elected to introduce the detailed evidence [that he]

claimed substantiated his position and damages for

breach of contract. . . .

‘‘Once the introduction of evidence had begun, the

plaintiff never asserted that [he] had insufficient evidence to pursue [his] breach of contract claims to the

fullest. . . . Nowhere in [his] posttrial memorandum

of law does the plaintiff request, expressly or impliedly,

that the court order an accounting. . . .

‘‘Indeed, in the section of [his] posttrial memorandum

of law entitled ’Governing Legal Standards,’ the plaintiff

sets forth three sections [for breach of fiduciary duty,

breach of contract, and conversion]. Nowhere in his

posttrial memorandum of law does the plaintiff argue

or set forth any legal standards, consistent with the

evidence in the case, pursuant to which he would be

entitled to an accounting. Moreover, subsequent to the

section on governing legal standards, the plaintiff sets

forth in the discussion and damages sections of the

brief the detailed nature of the transactions of which the

plaintiff complains, and seeks damages and a detailed

analysis of the damages suffered by the plaintiff. . . .

‘‘In the case at bar, not only did the court find that

the plaintiff had an adequate remedy [at] law, but the

plaintiff, based upon his posttrial briefs, also believed

that [he] had an adequate remedy at law, and seemingly

abandoned [his] request for an accounting. Under the

circumstances of this case, it would have been inequitable to order an accounting subsequent to the plaintiff’s

attempt to persuade the court, in its role as trier of fact,

that the evidence was sufficient to sustain [his] claim

for damages for breach of contract.

‘‘The plaintiff simply did not try or brief his case as

though he was seeking the remedy of an accounting.

Rather, the plaintiff clearly and unequivocally sought

an award of damages from the court consistent with

the evidence he had introduced and he thought was persuasive.’’

Thus, the court found that the plaintiff pleaded a

count requesting an accounting, but did not mention

that claim again until posttrial reargument. The plaintiff

proceeded to litigate his claims and was successful on

one of them. He claims, however, that he never actually

abandoned his claim for an accounting and that the

claim was extant until the court declined to order such,

as requested during reargument. After reviewing the

entire record, we do not conclude that the court committed clear error in its fact-finding or abused its discretion in reaching its conclusion of waiver.

ii
We hold alternatively that even if there was no waiver,

the court did not abuse its discretion in denying an

accounting.

As noted previously, ‘‘[a]n accounting is not available

in an action where the amount due is readily ascertainable.’’ (Internal quotation marks omitted.) Mankert v.

Elmatco Products, Inc., supra, 84 Conn. App. 460.

‘‘Courts of equity have original jurisdiction to state and

settle accounts, or to compel an accounting, where a

fiduciary relationship exists between the parties and

the defendant has a duty to render an account. . . . In

an equitable proceeding, the trial court may examine

all relevant factors to ensure that complete justice is

done . . . .’’ (Internal quotation marks omitted.)

Papallo v. Lefebvre, supra, 172 Conn. App. 763.

Here, the trial court considered detailed evidence of

the partnership assets and accounts such that it was

able to ascertain damages.17 It was not until posttrial

reargument that the plaintiff tried to reignite his

accounting claim. The court noted in its November 28,

2016 articulation that because it determined that the

trial, with available discovery, constituted an adequate

remedy at law and that the plaintiff had apparently

concurred, it chose not to exercise its equitable powers

to order an accounting. We observe that the expense of

an accounting and the resulting delay almost certainly

outweigh whatever benefit would have been gained by

ordering an accounting. We do not find an abuse of

discretion in the trial court’s decision denying an

accounting.18

III

SUMMARY

In sum, the court’s conclusion that the defendant

breached § 3.02 of the partnership agreement is

affirmed. The court erred in finding a breach of § 4.03

and in awarding attorney’s fees on that basis. The court

did not abuse its discretion in ordering a direct payment

from the defendant to the plaintiff. The court erred in

finding no breach of fiduciary duty. The court did not

clearly err in its calculation of compensatory damages.

The court did not err in finding a waiver of an accounting, nor, in the alternative, did it abuse its discretion

in declining to order an accounting.

The judgment is reversed only as to the findings that

the defendant breached his fiduciary duty and § 4.03

of the partnership agreement, and as to the award of

attorney’s fees, and the case is remanded for further

proceedings on the issue of attorney’s fees; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

1 The partnership itself, Martin Chioffi LLP (alternatively Martin & Chioffi

LLP), was also named as a defendant, but is unrepresented and has not

participated in the proceedings as a separate entity. All references to the

defendant in this opinion are to Martin alone.
2 The term ‘‘departmental profit calculation’’ appears in the agreement

several times. According to the agreement, the ‘‘calculation’’ was attached

to the agreement as an exhibit. The page so designated was blank. The

parties appear to agree, however, that article III, described at some length

previously, functioned as the ‘‘departmental profit calculation,’’ as it indeed

sets forth the method for determining and allocating department profit

or loss.

3 See footnote 2 of this opinion.

4 The defendant’s argument is premised on the contention that the court’s

analysis of the contractual obligations was erroneous; he does not claim,

for the purpose of this argument, that the court’s fact-finding was deficient.

5 We note that, pursuant to article III, revenues were partnership assets,

subject to allocation to different accounts. Once the accounting was accomplished, and expenses allocated as well, distributions could be made, either

monthly or as otherwise agreed, and the capital accounts following each

distribution were to be in the proper ratio. Revenues, then, initially were

the property of the partnership rather than of the individual partner responsible for an account.

6 Section 2.04 of the partnership agreement provided in pertinent part:

‘‘(a) No Personal Obligation.

‘‘(i) To the fullest extent permitted by the act and by other applicable

law, no partner shall be personally liable for the return or repayment of all

or any portion of the contributions to capital of any partner; any such return

or repayment shall be made solely from the assets of the partnership.

‘‘(ii) To the fullest extent permitted by the act and by other applicable

law, no partner shall be liable, responsible, or accountable in damages or

otherwise to the partnership or to any other partner . . . for any losses,

claims, damages, or liabilities arising from (i) any act performed, or any

omission to perform any act, by such partner in [his] capacity as a partner,

except by reason of acts or omissions in violation of the express terms of

this agreement; or (ii) the acts or omissions of any person other than such

partner. No partner, in [his] capacity as a partner, has any fiduciary obligation

or other duties to the partnership or any other partner, except as may be

provided under this agreement, the act and by other applicable law.

‘‘(b) Limitation of Liability. To the fullest extent permitted by the Act and

by other applicable law, no partner of the partnership shall be liable or

accountable, directly or indirectly (including by way of indemnification,

contribution or otherwise), for any debts, obligations or liabilities of, or

chargeable to, the partnership or each other, whether arising in tort, contract

or otherwise, which are incurred, created or assumed by the partnership

while the partnership is a registered limited liability partnership, solely by

reason of being such a partner or acting (or omitting to act) in such capacity

or rendering professional services or otherwise participating . . . in the

conduct of the other business or activities of the partnership.’’ (Emphasis

added.)

7 General Statutes § 34-327 (c) provides: ‘‘Subject to subsection (d) of this

section, a partner in a registered limited liability partnership is not liable

directly or indirectly, including by way of indemnification, contribution or

otherwise, for any debts, obligations and liabilities of or chargeable to the

Partnership or another partner or partners, whether arising in contract,

tort or otherwise, arising in the course of partnership business while the

Partnership is a registered limited liability partnership.’’

8 The defendant claims that the plaintiff limited his claim to §§ 4.03 and

3.02, eliminating a claim under § 34-327 (d); however, the partnership

agreement limits its provisions to what is allowed under § 34-327. Thus, we

find no merit to the claim that § 34-327 (d) is inapplicable.

9 Section 3.03 of the partnership agreement provided in relevant part:

‘‘[N]et losses of the partnership shall be allocated and apportioned in the

same manner as set forth in section 3.01 . . . provided, however, that all

expenses and losses resulting from the wrongful act or gross negligence of

a partner (to the extent not covered by insurance) shall be charged to such

partner in full.’’

10 The court enunciated and refined its award of attorney’s fees in its third

memorandum of decision, dated September 10, 2015.

11 The complaint contained many other allegations; for the purpose of this

opinion we select those most relevant to the issues presented on appeal.

12 This court similarly directed a judgment on a count alleging breach of

fiduciary duty in Spector v. Konover, supra, 57 Conn. App. 134.

13 The defendant, in his brief, alludes to, but does not explicitly cite, the

Zeller factors.
14 The record does not reflect whether the defendant received any independent advice from counsel prior to distributing the corporate assets. Because

the defendant had the burden to prove that fact, the absence of any evidence

in that regard works against him in proving fair dealing.

15 Because punitive damages may include attorney’s fees, we treat this

claim for attorney’s fees as a request for punitive damages. Although the

plaintiff did not claim attorney’s fees in the form of punitive damages but

instead merely as ‘‘attorney’s fees,’’ the defendant ‘‘necessarily [was] on

notice that punitive damages were being claimed because of the type of

conduct pleaded and the fact that attorney’s fees, [for this claim], could

be obtained only through the awarding of punitive damages.’’ Stohlts v.

Gilkinson, 87 Conn. App. 634, 647, 867 A.2d 860, cert. denied, 273 Conn.

930, 873 A.2d 1000 (2005).

16 The court’s reasoning is further supported by its finding that the defendant’s distribution of corporate assets to his new firm would in some circumstances be harmless. In other words, any distribution of assets of the

corporate department beyond what was needed to meet existing liabilities

were profits which ultimately would have been distributed to the defendant

in any event in the final distribution, had the liquidation proceeded according

to the agreement.

17 Although absolute precision is ideal, ‘‘a plaintiff is not required to prove

actual damages of a specific dollar amount.’’ (Internal quotation marks

omitted.) Landmark Investment Group, LLC v. CALCO Construction &

Development Co., supra, 318 Conn. 882.

18 We note that this result is not inconsistent with August v. Moran, 50

Conn. App. 202, 717 A.2d 807 (1998). In August, an action for an accounting,

the only issue was whether the trial court had properly rendered summary

judgment in favor of the defendant on the ground that the plaintiff was

collaterally estopped from litigating the amount of his overall partnership

interest, where a prior case had determined the value of his capital account.

Id., 203. This court held that a partnership interest was not necessarily

identical to a capital account, and that the trial court erred in applying the

doctrine of collateral estoppel. Id., 208. August did not address the question

of whether an accounting was required or appropriate in the circumstances

of that case.