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SYSTEM PROS, INC., ET AL. v. GENE KASICA

(AC 37105)

Gruendel, Lavine and Beach, Js.*

Argued February 16—officially released July 12, 2016

(Appeal from Superior Court, judicial district of

Hartford, Hon. Richard M. Rittenband, judge trial

referee.)

Michelle M. Seery, with whom was William J. O’Sullivan, for the appellant (defendant).

Peter A. Ventre, for the appellee (plaintiff Robert

J. Majewicz).
Opinion

GRUENDEL, J. This appeal concerns the disintegration of a business relationship. The defendant, Gene

Kasica, appeals from the judgment of the trial court in

favor of the plaintiff Robert J. Majewicz1 on all eight

counts of the operative complaint. On appeal, the defendant challenges the propriety of the court’s award of

damages in numerous respects. Specifically, he claims

that the court improperly awarded the plaintiff (1) one

half of the value of System Pros, Inc. (corporation), as

that corporation was valued on December 31, 2012,

(2) $467,786 in lost wages, (3) $18,149 attributable to

certain tax penalties the plaintiff sustained as a result

of the defendant’s actions, (4) $103,835 in obligations

that the court found the plaintiff owed his former wife

in his marital dissolution proceeding, (5) $326,864 in

prejudgment interest pursuant to General Statutes § 37-

3a, and (6) damages for violating the Connecticut Unfair

Trade Practices Act (CUTPA), General Statutes § 42-

110a et seq. The defendant also argues that, should

he prevail on the aforementioned claims, the court’s

supplemental judgment awarding the plaintiff $146,440

in attorney’s fees should be vacated. We affirm in part

and reverse in part the judgment of the trial court.

In its memorandum of decision, the court found the

following facts. The parties formed the corporation ‘‘on

or about January 12, 1993, for the purpose of supplying

consulting services, particularly in the areas of computers and computer software to insurance companies.

. . . Each owned . . . fifty percent of the stock of

[the] corporation. They were and are the only members

of [its] board of directors. [The plaintiff] was elected

president and treasurer, and [the defendant] vice president and secretary. The division of duties and responsibilities of the corporation were that [the defendant]

would be in charge of marketing and sales, and [the

plaintiff] would be in charge of administration of the

corporation, although [the plaintiff] was to be assigned

by the corporation to do consulting work for various

insurance companies. This division of duties and

responsibilities was admittedly oral but performed by

each party. It has been contested by [the defendant]

that there was such an agreement. However, this court

after listening to the testimony, in particular the testimony [of] James Valenski . . . who testified that he

was an independent contractor hired by the corporation

and, during the time that he was so involved, that he

fully understood that the division of responsibility was

as set forth above. The court also believes [the plaintiff]

as to this arrangement and finds such arrangement to

have taken place. When [the plaintiff] did consulting

work for an insurance company, his income from that

consulting work would go into his account, and when

[the defendant] did consulting work for an insurance

company, his income went into his account. There was
also an account for work done by employees/independent contractors which would go into a corporate

account which would then be divided between [the

plaintiff] and [the defendant] after payment of

expenses.

‘‘This arrangement worked quite well and was financially profitable for both individuals up until 2009 when

[the defendant], unhappy with [the plaintiff], took over

the corporation and in effect locked [the plaintiff] out

of any further dealings involving [the corporation]. [The

plaintiff] was no longer allowed on the premises, and,

as of the end of 2009, he became a nonentity as far as

[the defendant] and the corporation were concerned.

There is no question that the individuals no longer

trusted each other and were very critical of each other,

which has led this court to grant an application of dissolution of the corporation. There were personality differences and differences as to how the operation of the

corporation was being conducted. . . . Part of the

problem between the parties was that [the defendant]

wanted to make Valenski a member and/or partner of

the corporation to which [the plaintiff] objected. Valenski was hired as an independent contractor to promote

marketing and sales and develop clients for himself and

clients [for] whom [the defendant] and [the plaintiff]

would perform consulting work. [The plaintiff] believed

that Valenski was doing work that was really the responsibility of [the defendant]. Although [the plaintiff]

objected to retaining Valenski, he signed the contract

between [the corporation] and Valenski as the president

of [the corporation], thereby approving the independent

contract with Valenski. [The parties] were unable to

work out their differences . . . .’’

In late October, 2009, the defendant commenced an

action to dissolve the corporation pursuant to General

Statutes § 33-896 (dissolution action). The plaintiff at

that time declined his option to purchase all shares

owned by the defendant pursuant to General Statutes

§ 33-900. The plaintiff also declined the defendant’s

offer to appoint a receiver to operate the corporation

while the dissolution action was pending. The plaintiff

thereafter filed an answer and counterclaim.2

In February, 2010, the plaintiff commenced the present action. The operative complaint, the plaintiff’s January 30, 2014 amended complaint, contained eight

counts. The first count sought an accounting, and the

second count alleged tortious interference with business relationships. Counts three through six alleged

that the defendant breached a fiduciary obligation, an

implied covenant of good faith and fair dealing, the

standards of a corporate director under General Statutes § 33-756, and the standards of a corporate officer

under General Statutes § 33-765. In count seven, the

plaintiff alleged a CUTPA violation. The eighth and final

count alleged that the defendant breached an oral con-
tract between the parties. On March 8, 2010, the court

granted a motion to consolidate that action with the

dissolution action.

By order dated October 19, 2012, the court appointed

Attorney Atherton B. Ryan as custodian of the corporation and certified public accountants Bart Giustina and

Bruno Passacantano as auditors thereof, as well as a

third auditor to be determined by agreement of the

parties.3 Those auditors were directed to ‘‘reconcile the

books and records of [the corporation] from October

1, 2009, to date . . . . In addition, each of the auditors

shall independent of one another determine the [corporation’s] fair value as of October 1, 2009, and a current

date on or before January 31, 2013. The auditors shall

file a report with the court of their findings by February

15, 2013.’’

A court trial commenced in June, 2013. Although

consolidated four years earlier, the court bifurcated the

trials of the dissolution action and the present action.

The court first conducted a trial on the dissolution

action over the course of four days. It thereafter rendered a judgment that dissolved the corporation in

accordance with General Statutes § 33-897 et seq., and

designated Ryan as the receiver charged with winding

up and liquidating the business and affairs of the corporation. The propriety of that judgment is not contested

in this appeal.

Trial of the present action began on October 30, 2013,

and was continued over ten additional days. All but two

days consisted of the testimony of the plaintiff. The

defendant did not testify, but the court did hear the

testimony of Giustina, Passacantano, Philip J. DeCaprio, Jr., Valenski, and Attorney Douglas Manion. In

its memorandum of decision, the court found that the

plaintiff ‘‘was a very credible and honest witness. . . .

[H]e was particularly honest, candid and forthcoming.’’

The court also credited the testimony of DeCaprio, finding that ‘‘[h]e was devoid of any bias and was independent, and he gave a good basis for his evaluation of the

[corporation].’’ The court credited Valenski’s testimony

as it pertained to the affairs of the corporation and

credited Passacantano’s testimony on the ‘‘sole point’’

of whether the plaintiff ‘‘had to cash in his 401 (K) and/

or IRAs and suffered a penalty’’ due to ‘‘his involuntary

departure from [the corporation] . . . .’’ The court did

not credit the testimony of Giustina or Manion.

In its July 30, 2014 memorandum of decision, the

court concluded that the defendant was liable to provide an accounting of the corporation. The court also

ruled in favor of the plaintiff on counts two through

eight of the operative complaint while rejecting the

defendant’s statute of limitations and laches special

defenses. With respect to damages, the court reiterated

that it found the plaintiff ‘‘credible and trusts his valuation of the damages he suffered as set forth in [his]
exhibit 87 with any exceptions described herein. [The

plaintiff’s] testimony and his list of damages, as well

as the basis and computation thereof, the court finds

to be credible.’’4 The court then summarized its award

of damages as follows: ‘‘(1) Lost Wages – $467,786; (2)

Half of the value of the corporation as of December 31,

2012 – $86,500; (3) Penalties re: 401 (K) and IRAs –

$18,149; (4) Obligations [the plaintiff] has to fulfill pursuant to the marriage dissolution case of Majewicz v.

Majewicz – $103,835; (5) Sua sponte interest at 10 percent per annum, for money wrongfully withheld pursuant to [§] 37-3a from November 1, 2009 to August 1,

2014 – $326,864 [for a total of] $1,003,134.’’ The court

also awarded the plaintiff punitive damages in the form

of attorney’s fees, noting that ‘‘[a] supplemental judgment will be rendered following the hearing on attorney’s fees and receipt of [an updated audit of the books

and records of the corporation from DeCaprio] for the

period January 1, 2013 to date, the request to [have

DeCaprio complete that audit] having been by stipulation of the parties.’’

Following that hearing, the court, on August 28, 2014,

awarded the plaintiff the sum of $146,440 in attorney’s

fees. In a report dated September 5, 2014, DeCaprio

provided the court an updated analysis of the books and

records of the corporation, which was accompanied by

a detailed ‘‘Schedule of Adjustments.’’ That analysis

concluded that there existed ‘‘a financial obligation in

favor of [the plaintiff] in the amount of $140,322.55.’’ On

September 30, 2014, the court rendered a supplemental

judgment in favor of the plaintiff, which reflected both

the $146,440 award of attorney’s fees and the

$140,322.55 award on the audit of the corporation, as

documented in DeCaprio’s report. The court thus concluded that ‘‘[j]udgment is hereby entered in favor of

[the plaintiff] against [the defendant for a total of]

$1,289,895.55.’’ This appeal followed.

Before considering the specific claims advanced by

the defendant in this appeal, we first note what is not

in dispute. In its July 30, 2014 memorandum of decision,

the court determined, inter alia, that the defendant was

liable on counts one through six for providing an

accounting of the corporation, interfering with the

plaintiff’s business relationships, breaching his fiduciary obligation to the plaintiff, breaching the implied

covenant of good faith and fair dealing between the

parties, breaching the standards of a corporate director

under § 33-756, and breaching the standards of a corporate officer under § 33-765. In this appeal, the defendant

does not contest his liability on those counts. In addition, the court expressly found ‘‘that the actions of the

corporation, once [the defendant] took control thereof,

were the actions of [the defendant] on the basis that

his conduct pierced the corporate veil. . . . [T]his

court finds that the corporate veil was pierced and that

[the defendant] was an alter ego of the corporation
and that [the defendant] is individually liable to [the

plaintiff] . . . for all actions of himself and of [the corporation].’’ That determination also is not challenged

in this appeal.

We further note the standard of review that governs

challenges to damages awards. ‘‘[T]he trial court has

broad discretion in determining damages. . . . The

determination of damages involves a question of fact

that will not be overturned unless it is clearly erroneous.’’ (Internal quotation marks omitted.) Russell v.

Russell, 91 Conn. App. 619, 643, 882 A.2d 98, cert.

denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). ‘‘When,

however, a damages award is challenged on the basis of

a question of law, our review . . . is plenary.’’ (Internal

quotation marks omitted.) Landry v. Spitz, 102 Conn.

App. 34, 49–50, 925 A.2d 334 (2007).

I

The defendant first claims that the court improperly

awarded the plaintiff one half of the value of the corporation, as it was valued by DeCaprio as of December 31,

2012, as part of its award of damages on the accounting

count of the operative complaint.5 We agree.

The following additional facts are relevant to this

claim. The first count of the operative complaint sought

an accounting of the corporation. On October 19, 2012,

the parties appeared before the court to submit a proposed order regarding the appointment of three auditors in connection therewith. After brief discussion on

the language employed, the court approved the order

largely ‘‘as submitted by counsel for all parties . . . .’’

That order stated in relevant part that ‘‘[a]n accounting

of [the corporation] . . . is warranted.’’ The order then

assigned the auditors two distinct tasks. First, the auditors were to ‘‘reconcile the books and records’’ of the

corporation. Second, each auditor was charged with

rendering a valuation of the corporation as of both

‘‘October 1, 2009, and a current date on or before January 31, 2013.’’ A review of both the transcript of the

October 19, 2012 proceeding and the court order

entered on that date confirms that two distinct issues

were before the court with respect to the accounting

count of the operative complaint. First, the plaintiff

sought an audit of the books, records, and assets of the

corporation. Second, the plaintiff sought a valuation of

the corporation.

The proper valuation of a corporation ‘‘presents a

factual determination subject to the clearly erroneous

standard.’’ Russell v. Russell, supra, 91 Conn. App. 643.

‘‘A finding of fact is clearly erroneous when there is no

evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’’

(Internal quotation marks omitted.) Murtha v. Hart-
ford, 303 Conn. 1, 12–13, 35 A.3d 177 (2011).

It is undisputed that the plaintiff owned 50 percent

of the stock of the corporation. It further is undisputed

that the defendant was liable for his tortious conduct

under counts two through six of the complaint, which

transpired, the court found, once the defendant seized

control of the corporation and effectively locked the

plaintiff out. As an equal shareholderin the corporation,

the plaintiff plainly had a compensable interest in the

corporation. Indeed, the defendant does not argue otherwise.

The question, then, is whether the court erred in

awarding the plaintiff the sum of $86,500 as compensation for his one-half interest of the corporation, as it

was valued as of December 31, 2012, by DeCaprio in

his February 25, 2013 report.6

In his report, DeCaprio

valued the corporation at $81,000 as of October 1, 2009,

and at $173,000 as of December 31, 2012. Admittedly,

DeCaprio’s report complied with the October 19, 2012

order of the court to ‘‘determine the [corporation’s] fair

value as of October 1, 2009, and a current date on

or before January 31, 2013.’’ The court nevertheless

provided no explanation forits decision to impose damages in accordance with the later date in either its July

30, 2014 memorandum of decision or its June 19,

2015 articulation.7

In his February 25, 2013 report, DeCaprio expressly

indicates that ‘‘[t]he standard of value used in [his]

valuation’’ was that set forth in General Statutes § 33-

855 (4), which provides in relevant part that ‘‘ ‘fair value’

means the value of the corporation’s shares determined:

(A) Immediately before the effectuation of the corporate action to which the shareholder objects . . . .’’

The corporate action to which the plaintiff, as a shareholder, objected was the commencement of the dissolution action and related conduct of the defendant that

began on October 30, 2009. Consistent with the standard

of value employed by DeCaprio, the proper valuation

in the present case was his valuation of the corporation

as of October, 2009.

That determination is consonant with the testimony

of the plaintiff. At trial, the plaintiff agreed that the

proper valuation date was the fall of 2009, rather than

December, 2012. He testified that, as part of his claim

for damages, he was seeking half of the value of the

corporation as of November, 2009. When asked by his

attorney why he was not ‘‘going to give any adjustment

for the valuation as of December 31, 2012,’’ the plaintiff

answered, ‘‘[b]ecause if the [corporation] is dissolved,

the value is zero, so therefore the damages are half the

value of the corporation as of November 2, 2009.’’ When

his attorney then inquired as to precisely what his claim

for damages was, the plaintiff testified, ‘‘half the value

of what [the corporation] was in November [of] 2009.’’
In light of both the standard of value employed by

DeCaprio in his valuation of the corporation and the

unequivocal testimony of plaintiff at trial, we are left

with a definite and firm conviction that a mistake has

been committed with respect to the proper valuation

of the corporation. Accordingly, the plaintiff’s recovery

for one half of the value of the corporation must be

reduced from $86,500 to $40,500, which figure represents half of the $81,000 valuation of the corporation,

as of October, 2009, furnished by DeCaprio.8

II

The defendant next challenges the award of $467,786

in lost wages, claiming that the plaintiff failed to establish this award with reasonable certainty. By contrast,

the plaintiff maintains that his testimony at trial, in

tandem with the documentary evidence he submitted,

substantiates the award for lost wages. We agree with

the defendant.9

‘‘It is axiomatic that the burden of proving damages

is on the party claiming them. . . . When damages are

claimed they are an essential element of the plaintiff’s

proof and must be proved with reasonable certainty.

. . . Damages are recoverable only to the extent that

the evidence affords a sufficient basis for estimating

their amount in money with reasonable certainty.’’

(Internal quotation marks omitted.) Ulbrich v. Groth,

310 Conn. 375, 441, 78 A.3d 76 (2013). ‘‘[T]he court must

have evidence by which it can calculate the damages,

which is not merely subjective or speculative . . . but

which allows for some objective ascertainment of the

amount. . . . This certainly does not mean that mathematical exactitude is a precondition to an award of

damages, but we do require that the evidence, with

such certainty as the nature of the particular case may

permit, lay a foundation [that] will enable the trier to

make a fair and reasonable estimate. . . . Evidence is

considered speculative when there is no documentation

or detail in support of it and when the party relies on

subjective opinion.’’ (Citations omitted; internal quotation marks omitted.) Weiss v. Smulders, 313 Conn. 227,

254, 96 A.3d 1175 (2014).

As the court found in its memorandum of decision,

the corporation supplied consulting services to insurance companies. The plaintiff and the defendant equally

divided the profits of the corporation, which resulted

primarily from the placement of other consultants in

service contracts.10 The plaintiff retained all earnings

from consulting services that he personally rendered

to clients, which earnings were not considered profits

of the corporation. In addition, the plaintiff never

received a salary from the corporation. As he testified

at trial, ‘‘[t]he only compensation [he] ever received

was 50 percent of the profits’’ of the corporation.

The plaintiff’s claim for lost wages is predicated on
his allegation, which the court credited, that the defendant failed to disclose available consulting positions to

the plaintiff after locking him out of the corporation in

late 2009. The plaintiff testified that, prior to 2009, he

routinely received e-mail communications regarding

existing or potential clients that were looking for consultants. As he stated, ‘‘I was regularly contacted and

given information about positions that were available

to [the corporation] both from the standpoint if I wished

to have a position or if I knew somebody that could be

used to fill one of the positions.’’ The plaintiff also

testified that, once the defendant seized control of the

corporation, he no longer received such communications, stating that he was ‘‘cut off from everything at

the end of 2009.’’

Critical to our analysis are three pieces of documentary evidence that the plaintiff introduced at trial in

support of his claim for lost wages. First, the plaintiff

submitted exhibit 70, which is a document he prepared

that lists ‘‘various individuals [who] were placed at [the

corporation’s] clients’’ from August 1, 2009 to June 30,

2013. That document includes a total of twenty-one

placements and notes the start and end dates of each

placement, as well as the hourly rate of compensation.

The rate of compensation varied for each placement

and ranged from $63 to $100 per hour. Second, more

than 300 pages of invoices from the corporation regarding those placements were admitted as exhibit 71.

Third, the plaintiff introduced a detailed spreadsheet,

admitted as exhibit 75, that he had prepared titled ‘‘Lost

Wages January 1, 2010 to November 1, 2013.’’ For every

week during that period, the document specifies an

amount of lost wages, predicated on a forty hour work

week and calculated at an hourly rate of $85 for weeks

in which he was unemployed, and at an hourly rate of

$35 for weeks in which he allegedly was underemployed.11 The sum of lost wages specified on that document is $533,400.12

The plaintiff augmented that documentary evidence

with his testimony at trial. He testified that he ‘‘created

[exhibit 75] out of an Excel spreadsheet for the time

period that I was unemployed or underemployed and

the amount of time I would have lost as a result of

being locked out of [the corporation]. . . . Exhibit 70

shows that there were numerous jobs that were available to me during that period of time that I was not

given an opportunity to apply for . . . and this is the

amount of money that I would have lost as a result of

not having those jobs.’’ The plaintiff testified that he

calculated his rate of compensation at $85 per hour,

which was a rate he previously received from a prior

client.13 The plaintiff also opined that exhibit 75 represented a summary of hours that he would have been

able to work had ‘‘all of the openings that were available’’ been disclosed to him. In awarding the plaintiff
$467,786 in damages for lost wages, the court credited

the plaintiff’s ‘‘testimony and his list of damages, as

well as the basis and computation thereof . . . .’’

Assuming arguendo that the court properly determined that the defendant breached an agreement to

disclose available consulting positions to the plaintiff,

as the plaintiff alleged in the operative complaint,14

there nonetheless remains an enormous evidentiary gap

between that improper conduct and the $467,786 award

for lost wages. Although the plaintiff presented ample

evidence regarding the nature of the opportunities for

employment that were not communicated to him, his

testimony as to whether he would in fact have secured

such employment resorted to conjecture and subjective

opinion, which cannot constitute the basis for an award

of damages. See American Diamond Exchange, Inc.

v. Alpert, 302 Conn. 494, 513, 28 A.3d 976 (2011) (‘‘the

plaintiff bears the burden of producing evidence of sufficient quality to permit the fact finder to award damages

without resort to conjecture or speculation’’); Beverly

Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &

Kotkin, 247 Conn. 48, 76, 717 A.2d 724 (1998) (‘‘[i]n

order to remove the assessment of damages from the

realm of speculation, it is necessary to tie the award

of damages to objective verifiable facts’’); Viejas Band

of Kumeyaay Indians v. Lorinsky, 116 Conn. App. 144,

163, 976 A.2d 723 (2009) (‘‘[e]vidence is considered

speculative . . . when the party relies on subjective

opinion’’); CAS Construction Co. v. East Hartford, 82

Conn. App. 543, 557, 845 A.2d 466 (2004) (‘‘[s]peculative

evidence is not sufficient evidence for the trier to make

a fair and reasonable estimate of the plaintiff’s

damages’’).

In his testimony, the plaintiff acknowledged that his

claim for lost wages was predicated on various assumptions. For example, when asked whether it was ‘‘fair

to say that you base [the calculation of lost wages in

exhibit 75] on the assumption that you would have

obtained [employment] at $85 an hour,’’ the plaintiff

answered, ‘‘That’s one of the assumptions, yes.’’

Even more significantly, the plaintiff failed to produce sufficient nonspeculative evidence that he would

have secured the positions detailed in exhibit 70, which

listed various consultants placed by the corporation.

At trial, Valenski was asked to describe the process

of securing a placement with one of the corporation’s

clients. He testified that it involved ‘‘all kinds of competition. You have to find a manager who’s looking for

an opening for an [information technology] programmer

kind of person. Then you put the phone down. You

have to go run around, try to do recruiting, try to find

a candidate. You submit the candidate’s resume. The

manager looks at it. Half the times he gets back to you;

half the times he doesn’t get back to you. If he does,

he interviews your candidate. There’s no guarantee that
you[r] candidate’s gonna get the job in any way, shape,

or form because there’s other firms that are interviewing other candidates. Yeah, it’s a very tedious process, you know. It’s not like you put a resume in and

it’s a guarantee that the guy’s gonna get the job.’’ Valenski also explained that there were ‘‘thousands of companies’’ engaged in the same business as the corporation,

which made employment opportunities ‘‘very, very

competitive . . . .’’ In addition, the plaintiff introduced

into evidence an e-mail correspondence between himself and Valenski from the spring of 2009, in which the

plaintiff inquired as to whether the corporation ‘‘currently . . . had any requests for services from any company.’’ Valenski replied that ‘‘[t]here is nothing open at

this time. I have marketed and networked all around

and it is the worst I have seen.’’ At that time, the United

States was mired in the great recession, as DeCaprio

noted in his February 25, 2013 report.

In his testimony, the plaintiff admitted that, had he

applied for any of the positions detailed in exhibit 70,

he would have been competing with a number of other

candidates. He also testified that, to secure such

employment, he would have had to submit a resume

and to participate in interviews. At the same time, when

asked whether it was possible that he might not have

been hired for any of those positions, the plaintiff

answered, ‘‘No.’’ The plaintiff also offered his subjective

opinion that ‘‘I think my past history of being employed

. . . having positions in multiple companies for multiple years would prove that I’d wind up getting hired

by them.’’

The undisputed documentary and testimonial evidence in the record nonetheless indicates that the plaintiff on numerous occasions was unsuccessful in

securing employment for such positions in this particular industry during the time period in question. At trial,

the plaintiff introduced into evidence a ‘‘job search log’’

that he created to keep track of various employment

inquiries that he made in the years following his ouster

from the corporation. When questioned about that job

search log, the plaintiff acknowledged that he had

applied for, or inquired about, hundreds of positions

that he ultimately did not secure. The plaintiff also

testified that he had applied for ‘‘four or five permanent

positions’’ in his particular area of expertise, but did not

obtain any of those positions. In addition, the plaintiff

conceded at trial that, although he was claiming damages for lost wages, he did not subpoena or call any

witnesses from any of the employers listed on exhibit

70 to establish his claim for damages. The plaintiff further did not offer any expert testimony thereon. In so

doing, the plaintiff failed to remove his claim for lost

wages from the realm of speculation and conjecture.

See Beverly Hills Concepts, Inc. v. Schatz & Schatz,

Ribicoff & Kotkin, supra, 247 Conn. 76; Viejas Band

of Kumeyaay Indians v. Lorinsky, supra, 116 Conn.
App. 163.

The plaintiff’s lost wages calculation rests on an additional assumption—namely, that he was qualified for

all of the opportunities described in exhibit 70. The

record indicates otherwise.

In his testimony, the plaintiff detailed his background

in ‘‘mainframe and CICS programming,’’ explaining that

his ‘‘specialty’’ was programming in the Vantage-One

system, a computer system widely used in the insurance

industry. The plaintiff testified that, at the time of the

trial, he had twenty-seven years of programming experience. The plaintiff distinguished between programming

and business analysis work, and admitted that he had

very little experience as an analyst or as a project manager. Rather, his experience was limited to mainframe

and technologies using certain languages. The plaintiff

admitted that he was not qualified for business analyst

positions. Valenski corroborated that testimony.

Yet, the undisputed evidence in the record indicates

that the plaintiff included several business analyst

placements in exhibit 70. Valenski testified that the

placements with Aegon, National Life of Vermont, and

Life Insurance Co. of the Southwest secured by Barbara

Granata, Kim Grinsted, and Dana Robbins all were business analyst positions. Those placements comprise

approximately one quarter of the placements detailed in

exhibit 70. In his testimony, the plaintiff acknowledged,

consistent with the foregoing evidence, that some of

the positions included in exhibit 70 ‘‘might have been’’

for business analysts. The plaintiff’s own testimony confirms that he was not qualified for such positions.

In addition, the plaintiff testified that, as of 2009, and

pursuant to a dissolution of marriage decree, he had

shared custody of his youngest daughter. Because of

that obligation,the plaintifftestified that he ‘‘didn’t want

to work out of state.’’ Valenski likewise testified that,

with respect to ‘‘conditions regarding [the plaintiff’s]

prospective placements at other companies,’’ his understanding was that such positions ‘‘would have to be in

Connecticut in the Hartford area . . . .’’ Valenski testified that certain positions with the client known as ‘‘Life

Insurance Co. of the Southwest’’ were in Dallas, Texas.

The plaintiff nevertheless included positions with that

client in exhibit 70.

The undisputed testimonial and documentary evidence in the record thus reveals that the plaintiff’s lost

wages claim was predicated on multiple assumptions.

It assumed that the plaintiff would be compensated at

an hourly rate of $85, despite the fact that the majority

of placements described in exhibit 70 were at a different

rate. His claim assumed that the plaintiff was qualified

for those placements, when he admittedly was unqualified for the five business analyst placements included

in exhibit 70. The plaintiff also erroneously assumed
that all placements included in that exhibit were located

in Connecticut. Lastly, the plaintiff’s claim for lost

wages assumed that he would have secured employment if he had been apprised of the opportunities

described in exhibit 70. The record lacks sufficient nonspeculative evidence to substantiate those assumptions. See Weiss v. Smulders, supra, 313 Conn. 258

(assumptions underlying damages theory ‘‘must be reasonable in light of the record evidence’’).

The speculative nature of the plaintiff’s claim for lost

wages is exemplified by his testimony regarding placements with the client known as ‘‘Aegon.’’ Exhibit 70

includes ten placements with Aegon.15 Three of those

placements were for business analyst positions, for

which the plaintiff admittedly was not qualified. Of the

remaining seven placements, the plaintiff testified at

trial that he did not know whether five were located

in Connecticut or another state. Earlierin his testimony,

the plaintiff had made clear that he would only consider

placements located in Connecticut.

With respect to whether he would have secured any

of those seven placements, the plaintiff opined that he

believed that he was qualified for those positions. He

predicated that opinion on the fact that he ultimately

was hired by Vertex, Inc., to perform consulting work

for Aegon from October, 2011 to July, 2012. Two of the

placements, however, were for service contracts that

commenced two years earlier and ran from October 12,

2009 to December 31, 2010, at which time our nation

was still recovering from the great recession, as noted

by DeCaprio in his February 25, 2013 report. As Valenski

confirmed in an e-mail correspondence that the plaintiff

introduced into evidence, the market for the plaintiff’s

services was ‘‘the worst I have seen’’ at that time. Moreover, the job search log submitted into evidence by the

plaintiff indicates that he unsuccessfully pursued ‘‘open

positions’’ with Aegon in February, 2010.

As to the remaining five placements with Aegon, they

all overlapped with the period of the plaintiff’s consulting work at Aegon. When asked if he knew ‘‘for a

fact whether Aegon would have hired you for any of

[those] positions,’’ the plaintiff testified that ‘‘I’m assuming that [Aegon] would have used the same criteria and

hired me [because] it was the exact same type of work.

. . . I think my past history of being employed and

. . . having positions in multiple companies for multiple years would prove that I’d wind up getting hired by

them.’’ The plaintiff nevertheless conceded that he did

not call anybody from Aegon to testify, nor did he subpoena such witnesses to establish his damages.16 Furthermore, the plaintiff’s testimony that he was

compensated at a rate of $50 per hour for his consulting

work at Aegon undermines his claim for lost wages at

a rate of $85 per hour, particularly when he insisted

that that those five positions at Aegon were for ‘‘the
exact same type of work.’’ In sum, the plaintiff’s claim

for lost wages for placements at Aegon is plagued by

numerous assumptions that are not sufficiently supported by objective, nonspeculative evidence in the

record.

‘‘Under Connecticut law, damages may not be predicated on a contingency.’’ Meadowbrook Center, Inc. v.

Buchman, 149 Conn. App. 177, 193, 90 A.3d 219 (2014).

Fatalto the plaintiff’s claim forlost wages is the assumption that, because an opportunity for employment

existed, he necessarily was qualified for and would have

obtained that employment. There exists a critical difference between having ‘‘opportunity to apply for’’ a service contract and obtaining one.17 As the court itself

recognized in the midst of the plaintiff’s testimony,

although the plaintiff had offered his subjective opinion

that he was qualified forthe placements noted in exhibit

70, ‘‘that’s his opinion that he was qualified for these

jobs. . . . Still whether he would have gotten the job

is somewhat speculative . . . .’’ The court nonetheless

relied on that conjecture in awarding the plaintiff damages for lost wages.

In light of the foregoing, we conclude that the plaintiff

has not met his burden of producing evidence of sufficient quality to permit the fact finder to award damages

for lost wages without resort to conjecture or speculation. See American Diamond Exchange, Inc. v. Alpert,

supra, 302 Conn. 513. The record before us lacks evidence that ‘‘allows for some objective ascertainment

of the amount’’ of damages for lost wages that the

plaintiff sustained that is ‘‘not merely subjective or speculative . . . .’’ (Internal quotation marks omitted.) Id.,

510; see also CAS Construction Co. v. East Hartford,

supra, 82 Conn. App. 557 (‘‘[s]peculative evidence is

not sufficient evidence for the trier to make a fair and

reasonable estimate of the plaintiff’s damages’’).

Because the plaintiff failed to produce sufficient nonspeculative evidence of his claimed damages, we conclude that the court improperly awarded the plaintiff

$467,786 for lost wages in the present case.

III

The defendant claims that the court erroneously

awarded the plaintiff $18,149 in damages attributable

to certain tax penalties the plaintiff sustained. Although

the defendant does not dispute the court’s finding that

the plaintiff incurred those tax penalties, he argues that

‘‘[t]he error in the ‘lost wages’ award tainted the conclusion that [the defendant] also caused [the plaintiff’s]

tax penalties.’’ We do not agree.

In this case, the court rendered judgment in favor of

the plaintiff. In this appeal, the defendant does not

contest his liability under the first six counts of the

operative complaint. The court in its memorandum of

decision specifically found that the defendant seized
control of the corporation and wrongfully locked the

plaintiff out. Through his actions, the court found that

the defendant committed various torts against the plaintiff by interfering with the plaintiff’s business relationships, breaching his fiduciary obligation to the plaintiff,

breaching the implied covenant of good faith and fair

dealing between the parties, breaching the standards

of a corporate director under § 33-756, and breaching

the standards of a corporate officer under § 33-765.

At trial, the plaintiff testified that, as a result of the

defendant’s conduct in locking him out of the corporation and refusing to provide distributions from the corporation, he ‘‘had to drain money out of my 401—my

IRA account in order to survive and pay bills.’’18 Specifically, the plaintiff testified that he withdrew approximately $170,000 from his 401 (K) account. As a result,

he incurred tax penalties for those withdrawals. The

plaintiff introduced into evidence approximately seventy pages of statements from his Scottrade IRA

account, which verified the plaintiff’s testimony with

respect to those withdrawals. Also admitted into evidence were redacted copies of the plaintiff’s personal

tax returns for the years 2007 through 2012. Passacantano likewise testified that the plaintiff sustained tax

penalties as a result of those withdrawals, which were

reflected on those tax returns.19 The court expressly

credited that testimony in its memorandum of decision.

In his three sentence discussion of this issue in his

appellate brief, the defendant argues that because the

court’s award for lost wages must be vacated, its award

for tax penalties too must fail. He provides neither

authority nor analysis in support of that contention.

To the contrary, we conclude that the record amply

supports the court’s finding that the plaintiff sustained

tax penalties as a result of the defendant’s actions. The

court found the defendant liable for numerous acts of

tortious conduct against the plaintiff, and the plaintiff

presented the aforementioned evidence indicating that

he suffered tax penalties as a result. We therefore cannot conclude that the court’s award of damages with

respect to those tax penalties is clearly erroneous.

IV

The defendant also contends that the court erroneously awarded the plaintiff $103,835 in damages for

obligations that the plaintiff owed to his former wife

in his marital dissolution proceeding. More specifically,

he claims that the court’s finding that the plaintiff ‘‘owed

$103,835 to his ex-wife’’ is clearly erroneous. The defendant further claims that, even if the court’s award is

broadly construed as compensation for legal fees

incurred in connection therewith, the plaintiff still cannot prevail. We agree.

A

We first consider the defendant’s challenge to the
court’s finding that the plaintiff ‘‘owed $103,835’’ to his

former wife. Neither the plaintiff’s original complaint

served on the defendant in February, 2010, nor the

operative complaint he filed following the completion

of his case-in-chief contain any allegation as to obligations to his former wife. At trial, the plaintiff produced

no evidence as to the amount of any such obligations.

In its memorandum of decision, the court found that

‘‘[b]ecause of [the plaintiff] being involuntarily separated from [the corporation] by [the defendant], he . . .

was not able to pay alimony and other costs of [the

plaintiff’s] divorce and will have to pay them.’’ The

court thus awarded the plaintiff $103,835 in damages for

‘‘[o]bligations [he] has to fulfill pursuant to the marriage

dissolution case . . . .’’ The defendant filed a motion

for articulation with respect to that portion of the damages award, which the court denied.20 The defendant

thereafter filed a motion for review with this court,

which granted the motion and ordered the trial court

to articulate, inter alia, ‘‘the factual and legal basis for

awarding the plaintiff $103,835 attributable to ‘alimony

and other costs of [the plaintiff’s] divorce.’ ’’

In its June 19, 2015 articulation, the court stated that

‘‘[a]ccording to [the plaintiff], and not disputed by [the

defendant], [the plaintiff] owed $103,835 to his ex-wife

in his divorce case, the judge in that case delaying

enforcement of the payment to [her] until the instant

case was decided. [The plaintiff] was in a position where

he was unemployed because ofthe actions of [the defendant] and was unable to pay his alimony to his [former]

wife. This was not disputed by [the defendant] and [the

plaintiff] was in arrears in his divorce case because of

the actions of [the defendant] resulting in [the plaintiff’s] unemployment. This was based upon the testimony of [the plaintiff] which was not disputed.’’

We carefully have reviewed the voluminous record

and can find no support for the court’s finding that the

plaintiff ‘‘owed $103,835 to his ex-wife’’ pursuant to the

marital dissolution proceeding. Although the plaintiff

included that exact sum in his written list of damages

that was admitted into evidence as exhibit 87,21 he testified unequivocally at trial that this sum was attributable

to ‘‘over $100,000 in legal fees’’ he incurred in his postdissolution marital proceedings. The plaintiff testified

that, following his ouster from the corporation, he initiated an alimony modification proceeding in March,

2010, which continued for years.22 He thus sought as

damages all legal fees he incurred in those proceedings.

Admitted into evidence was an affidavit of attorney’s

fees filed by the plaintiff’s attorney in those postdissolution proceedings, I. David Marder, who averred that

his billing records indicated an outstanding balance of

$76,772.84 as of September 29, 2013. Marder’s billing

records, which accompanied that affidavit, reflect a

total of approximately $84,000 for professional services
rendered, expenses, and surcharges.

Put simply, there is no evidence in the record to

substantiate the court’s finding that the plaintiff owed

his former wife $103,835. That finding, therefore, is

clearly erroneous.

In an attempt to salvage the award of $103,835 in

damages related to his postdissolution proceedings, the

plaintiff on appeal suggests that the court found that,

as a result of the defendant’s conduct, he ‘‘was forced

to engage in actions in the family court at a heavy cost,

which included seeking a modification of his alimony,’’

which resulted in the aforementioned legal fees. The

trial court, however, made no such findings. Rather, it

specifically found that the plaintiff ‘‘owed $103,835 to

his ex-wife in his divorce case . . . .’’ As we have

observed, ‘‘it is axiomatic that this appellate body does

not engage in fact-finding. Connecticut’s appellate

courts cannot find facts; that function is, according to

our constitution, our statute, and our cases, exclusively

assigned to the trial courts.’’ (Internal quotation marks

omitted.) Hogan v. Lagosz, 124 Conn. App. 602, 618, 6

A.3d 112 (2010), cert. denied, 299 Conn. 293, 11 A.3d

151 (2011). In the present case, the findings necessary

to substantiate the award of damages are lacking. The

court’s award of $103,835 in damages was founded on

its finding that the plaintiff owed his former wife that

sum pursuant to his marital dissolution obligations.

Because that finding is not supported by the evidence

in the record, that portion of the award of damages is

clearly erroneous.

B

To be clear, the plaintiff testified that he sought an

award of $103,835 for legal fees he incurred in his postdissolution marital proceedings. Even if the court had

rendered such an award—which its June 19, 2015 articulation indicates it plainly did not—there is a paucity of

objective evidence in the record on which to predicate

such an award. Marder’s affidavit does not substantiate

the plaintiff’s claimed $103,835 in legal fees, but rather

falls tens of thousands of dollars shy of that sum. The

sole reference to that precise sum is contained in exhibit

87—the list of damages prepared by the plaintiff. See

footnote 4 of this opinion. At trial, the plaintiff likewise

testified that exhibit 87 included ‘‘over $100,000 in legal

fees’’ he incurred in his postdissolution marital proceedings. The plaintiff provided no evidence to substantiate

that sum.

In addition, the plaintiff provided no evidence to

establish a basis on which the trier of fact reasonably

could conclude which portion of Marder’s legal fees for

services rendered in those postdissolution proceedings

were related to the plaintiff’s loss of income as a result

of being locked out of the corporation. Marder’s itemized billing statements, which were admitted into evi-
dence at trial, indicate that the plaintiff had accrued

more than $6000 in legal fees in his postdissolution

proceedings as of June, 2009—months prior to being

locked out of the corporation. The defendant in the

present case also submitted into evidence records from

the postdissolution proceedings to demonstrate that

they involved numerous issues unrelated to the plaintiff’s ouster from the corporation.23 Furthermore, the

defendant furnished the court with a copy of the May

30, 2014 decision of the Superior Court on certain postjudgment motions in the plaintiff’s marital dissolution

case, including various motions for contempt filed by

the plaintiff’s former wife. In a thorough, seventy-one

page memorandum of decision, that court, inter alia,

found the plaintiff in contempt for (1) failing to make

child support payments when ‘‘he had the ability to do

so’’ while ‘‘earning $100,000 or more, annualized, at

Vertex and Mass Mutual’’; (2) failing to comply with

a court order requiring him to timely transfer certain

retirement funds to his former wife; (3) failing to sell

certain assets within a reasonable time; (4) failing to

pay his children’s unreimbursed medical expenses; and

(5) failing to comply with his obligation to pay for his

daughter’s college expenses when ‘‘[t]he evidence does

not show . . . that he lacked sufficient funds’’ to do

so. In requesting compensation in this case for the

entirety of his legal fees incurred in those postdissolution proceedings, the plaintiff offered no evidence or

explication as to precisely how the defendant’s conduct

related to Marder’s legal representation on such issues.

Much like his claim for lost wages, the plaintiff’s claim

for reimbursement of Marder’s legal fees in the present

case amounted to little more than wild conjecture,

which cannot serve as the basis for an award of damages. See American Diamond Exchange, Inc. v. Alpert,

supra, 302 Conn. 510.

The record before us lacks evidence to substantiate

the court’s award of $103,835 in damages for obligations

that the plaintiff owed to his former wife in his marital

dissolution proceedings. That award, therefore, is

clearly erroneous.

V

The defendant also contests the court’s legal conclusion that CUTPA applied to the present dispute between

officers and equal shareholders of a corporation. He

claims that, under established Connecticut law, CUTPA

does not apply to such intracorporate conflicts.

Because he challenges the court’s interpretation of

CUTPA, our review is plenary. See Votto v. American

CarRental,Inc., 273Conn. 478, 483, 871A.2d 981 (2005).

General Statutes § 42-110b (a) provides in relevant

part that ‘‘[n]o person shall engage in unfair methods

of competition and unfair or deceptive acts or practices

in the conduct of any trade or commerce. . . .’’ Our

Supreme Court has held that ‘‘purely intracorporate
conflicts do not constitute CUTPA violations . . . .’’

Ostrowski v. Avery, 243 Conn. 355, 379, 703 A.2d 117

(1997); accord Russell v. Russell, supra, 91 Conn. App.

646 (‘‘no CUTPA violation had been established’’

because ‘‘this dispute essentially was between two private parties and . . . concerned their jointly owned

business, and, therefore, did not affect the public at

large’’). The present case involves an intracorporate

dispute between officers and equal shareholders of a

corporation. The court found, and the record reflects,

that this dispute originated with the defendant’s commencement of an action to dissolve the corporation in

late October, 2009, and concerns his subsequent conduct in locking the plaintiff out of the corporation.

Although CUTPA generally does not apply to intracorporate conflicts, an exception to that rule exists

when a defendant’s actions ‘‘went well beyond governance of the corporation, and placed him in direct competition with the interests of the corporation.’’ Fink v.

Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996).

That exception is implicated when the conduct of a

defendant has ‘‘the effect of usurping the customers,

employees or assets of one business in favor of another

business.’’ Metcoff v. Lebovics, 123 Conn. App. 512, 519,

2 A.3d 942 (2010); see also Larsen Chelsey Realty Co.

v. Larsen, 232 Conn. 480, 493–94, 656 A.2d 1009 (1995).24

In determining whether the exception applies, the critical inquiry does not concern the relationship between

individual parties within a corporation, such as the

plaintiff and the defendant in the present case. Fink v.

Golenbock, supra, 213. Rather, that analysis asks

whether such an individual’s conduct is adverse to the

corporation and its interests.25 Id.

In its terse discussion of the plaintiff’s CUTPA claim,

the court in its memorandum of decision found that

the defendant ‘‘utiliz[ed] the corporate assets for [his]

own benefits’’ and transferred ‘‘assets [of the corporation] to his other business . . . .’’ At the behest of the

defendant, this court subsequently ordered the trial

court to articulate that finding ‘‘by identifying the business and the assets transferred.’’ The trial court thereafter articulated its finding as follows: ‘‘The court

remembers that [the plaintiff] testified that the [defendant] had transferred assets of [the corporation] to

another business owned by [the defendant]. My recollection is thatthe assets were described by [the plaintiff]

and he described the business, but the court . . . does

not recall which business it was and what assets were

transferred. The court . . . used this transfer of the

assets to another business owned by [the defendant]

as a basis, in part, for finding that [the plaintiff] had

proven the elements of his claims of a [CUTPA violation]. Where it was transferred and what assets were

transferred was known by the court at the time but no

amount was put on it.’’ Thus, despite this court’s order

to specify the business and assets referenced in its
memorandum of decision, the trial court’s articulation

indicates that it could not so recall.

Mindful of the clearly erroneous standard that governs factual findings, we have scoured the ample record

before us, with particular attention to the testimony of

the plaintiff. We can discern no evidentiary basis for the

court’s finding that the defendant improperly utilized

corporate assets for his own benefit or transferred

assets of the corporation to another business.

The record reveals that the defendant, for more than

a decade prior to the events in question, routinely withdrew his proceeds from the corporation in the form of

checks to KasicaEnterprises, LLC. The plaintifftestified

that the defendant ‘‘took out a substantial portion of

his share of the monies derived from [the corporation]

through his Kasica Enterprises, LLC.’’ (Emphasis

added.) The plaintiff further testified that Kasica Enterprises, LLC, was an entity formed by the defendant to

save ‘‘hundreds of thousands of dollars’’ in the construction of a personal residence ‘‘by writing all this stuff

off as a business expense.’’26 There is no indication in

the record that Kasica Enterprises, LLC, was a business

that competed with the corporation or that the defendant’s decision to allocate his portion of the corporation’s profits to that entity was improper.

At trial, the plaintiff also offered testimonial and documentary evidence indicating that, in the years after

locking him out of the corporation, the defendant withdrew ‘‘money from [the corporation’s] savings and

operating accounts, put it into his personal [banking]

account, and then kept on moving money from one

account to the other . . . .’’ Nevertheless, when the

court inquired as to whether the defendant ever ‘‘used

any of this money for other than corporate purposes,’’

the plaintiff conceded that ‘‘I don’t have any evidence

of that.’’ Indeed, when the issue of the defendant’s handling of corporate funds arose at trial, the plaintiff

explained that ‘‘[t]he purpose of . . . showing those

[funds] going out of the [corporate] account and going

into [the defendant’s] personal account was not to say

that he took that [money] and kept it for himself. What

it was to show was that he emptied out our accounts

making it impossible to properly manage [the corporation] at the time because he looted our bank accounts.

I’m not saying he took all our money out and kept it

out. He kept on moving it around and putting money

back into [the corporation].’’

In this case, there is no evidence to substantiate a

finding that the defendant’s actions placed him in direct

competition with the interests of the corporation or

that he ‘‘took certain actions designed to usurp the

business and clientele of one corporation in favor of

another.’’ Fink v. Golenbock, supra, 238 Conn. 212; see

also Metcoff v. Lebovics, supra, 123 Conn. App. 519;

Russell v. Russell, supra, 91 Conn. App. 647–48; Spector
v. Konover, 57 Conn. App. 121, 133–34, 747 A.2d 39,

cert. denied, 254 Conn. 913, 759 A.2d 507 (2000). Moreover, the trial court articulated no such findings in either

its July 30, 2014 memorandum of decision or its June

19, 2015 articulation.

At best, the record establishes that the defendant

improperly compensated himself for salary and other

expenses from the general account of the corporation.

DeCaprio’s audit of the corporation, which ultimately

resulted in a supplemental award of $140,322.55 in damages to the plaintiff, included various adjustments

regarding those payments from the general account.

That evidence confirms that the improprieties involved

in this case concern a purely intracorporate conflict.

As the plaintiff admitted in his testimony, there is no

evidence that the defendant utilized assets of the corporation for anything other than corporate purposes. The

present case thus is not one in which the defendant’s

actions ‘‘went well beyond governance of the corporation, and placed him in direct competition with the

interests of the corporation’’; Fink v. Golenbock, supra,

238 Conn. 213; or one in which the defendant usurped

the assets of the corporation ‘‘in favor of another business.’’ Metcoff v. Lebovics, supra, 123 Conn. App. 519.

Accordingly, the court improperly determined that the

exception to the generalrule that CUTPA does not apply

to intracorporate conflicts was implicated in this case.

VI

The defendant next claims that the court improperly

awarded the plaintiff, sua sponte, $326,864 in prejudgment interest pursuant to § 37-3a. He contends that § 37-

3a does not apply because the damages awarded in the

present case do not concern moneys that were detained

after they were due and payable. The applicability of

§ 37-3a presents a question of law over which ourreview

is plenary. See Cadle Co. v. D’Addario, 131 Conn. App.

223, 243–44, 26 A.3d 682 (2011).

As a preliminary matter, we note that the court

awarded prejudgment interest on four distinct aspects

of its damages award—specifically, its award for(1) one

half of the value of the corporation;(2)tax penalties;(3)

lost wages; and (4) obligations that the plaintiff owed

to his former wife in their marital dissolution proceeding. We already have determined that the latter two

awards were improper and, therefore, must be set aside.

See parts II and IV of this opinion. We thus consider

whether the court properly awarded prejudgment interest on its award for one half of the value of the corporation and for tax penalties the plaintiff sustained.

The following undisputed facts are relevant to that

inquiry. The plaintiff did not request an award of prejudgment interest in either his original complaint or his

January 30, 2014 amended complaint, and at no stage

in the proceedings before the trial court did the plaintiff
mention, let alone request, such interest. In a record

that includes boxes of exhibits and more than 1600

pages of transcripts, the only reference to such interest

comes on the final page of the court’s memorandum of

decision, in which the court simply states, ‘‘Sua sponte

interest at 10 percent per annum, for money wrongfully

withheld pursuant to . . . § 37-3a from November 1,

2009 to August 1, 2014 – $326,864.’’ The defendant thus

was not afforded an opportunity to present evidence

on the propriety of that award. See Sears, Roebuck &

Co. v. Board of Tax Review, 241 Conn. 749, 766, 699

A.2d 81 (1997) (in awarding interest pursuant to § 37-

3a, trial court ‘‘should allow the parties, if appropriate,

to submit evidence relative to the rate of interest’’); cf.

Weber v. Fujifilm Medical Systems U.S.A., Inc., 933 F.

Supp. 2d 285, 305 (D. Conn. 2013) (‘‘in light of [d]efendants’ evidence of the low interest rate climate in the

recent past . . . awarding ten percent compounded

interest [pursuant to § 37-3a] would provide an unwarranted windfall to [p]laintiff’’), rev’d in part on other

grounds sub nom. Weber v. Tada, 589 Fed. Appx. 563,

565–67 (2d Cir. 2014).

The defendant maintains that the court improperly

concluded that § 37-3a applied in this case. Our analysis

of that claim begins with the relevant statutory language. Section 37-3a (a) provides in relevant part that

‘‘interest at the rate of ten per cent a year, and no more,

may be recovered and allowed in civil actions . . .

including actions to recover money loaned at a greater

rate, as damages for the detention of money after it

becomes payable. . . .’’ The statute ‘‘applies to interest

as damages and allows a trial court to award interest

as compensation for the detention of money . . . .’’

Sikorsky Financial Credit Union, Inc. v. Butts, 315

Conn. 433, 442, 108 A.3d 228 (2015). Indeed, ‘‘the primary purpose of § 37-3a [is] to compensate parties that

have been deprived of the use of their money.’’ Sosin

v. Sosin, 300 Conn. 205, 230, 14 A.3d 307 (2011); see

also Neiditz v. Morton S. Fine & Associates, Inc., 199

Conn. 683, 691, 508 A.2d 438 (1986)(§ 37-3a ‘‘is intended

to compensate the prevailing party for a delay in

obtaining money that rightfully belongs to him’’); Paulus v. LaSala, 56 Conn. App. 139, 151, 742 A.2d 379

(1999) (purpose of § 37-3a ‘‘is to compensate plaintiffs

who have been deprived of the use of money wrongfully

withheld by defendants’’), cert. denied, 252 Conn. 928,

746 A.2d 789 (2000). Our Supreme Court’s ‘‘earliest

cases interpreting § 37-3a reveal that . . . prejudgment

interest was allowed under the statute, namely, claims

to recover money that remained unpaid after it was due

and payable.’’ (Emphasis added.) DiLieto v. County

Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 51,

74 A.3d 1212 (2013).

The corollary to that principle is that § 37-3a does

not provide for interest on money that is not due and

payable. As this court has noted, ‘‘[§] 37-3a provides a
substantive right that applies only to certain claims.

. . . It does not allow prejudgment interest on claims

that are not yet payable, such as awards for punitive

damages . . . or on claims that do not involve the

wrongful detention of money, such as personal injury

claims. . . . The statute, therefore, applies to claims

involving the . . . detention of money after it becomes

due and payable.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 739–40, 682 A.2d 1026,

cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Accordingly, ‘‘[t]o award § 37-3a interest . . . the claim to

which the prejudgment interest attaches must be a

claim for a liquidated sum of money’’ detained by a

defendant. Ceci Bros., Inc. v. Five Twenty-One Corp.,

81 Conn. App. 419, 428, 840 A.2d 578, cert. denied, 268

Conn. 922, 846 A.2d 881 (2004). The question, then, is

whether the plaintiff’s claims for one half of the value

of the corporation and compensation for certain tax

penalties involve the detention of moneys that were

due and payable to the plaintiff.

We answer that query in the negative. The damages

award for one half of the value of the corporation was

not a sum already payable that the defendant withheld

from the plaintiff, but rather represented the plaintiff’s

portion, as an equal shareholder, of the valuation of the

corporation at the time that the proceeding to dissolve

the corporation was commenced, which valuation was

not determined until the court rendered judgment in

this case. The award of $18,149 for tax penalties sustained by the plaintiff likewise was not for moneys

withheld by the defendant; that award compensated the

plaintiff for moneys that he was obligated to pay to the

Internal Revenue Service. Neither the award for one

half of the value of the corporation nor the award for

tax penalties involved a liquidated sum of money that

the defendant had withheld from the plaintiff.27 See

Nelson v. Tradewind Aviation, LLC, 155 Conn. App.

519, 547–48, 111 A.3d 887, cert. denied, 316 Conn. 918,

113 A.3d 1016 (2015); Reyes v. Chetta, 143 Conn. App.

758, 770, 71 A.3d 1255 (2013). For that reason, the court

improperly awarded prejudgment interest on those portions of its damages award.

VII

As a final matter, the defendant claims that the award

of attorney’s fees should be vacated in this case, arguing

that the outcome of this appeal ‘‘will significantly diminish the results obtained at trial . . . .’’ We do not agree.

Notably, the attorney’s fees awarded to the plaintiff

by the court constituted punitive damages. In its memorandum of decision, the court specifically found that

the defendant was ‘‘liable to [the plaintiff] for punitive

damages in the form of attorney’s fees,’’ noting that

counts two through six of the operative complaint

involved ‘‘intentional torts [on which] punitive damages
in the form of attorney’s fees may be awarded . . . .’’

The defendant does not contest that determination.

As this court has observed, the ‘‘standard of review

for an award of punitive damages is well settled. [T]he

trial court has broad discretion in determining whether

damages are appropriate. . . . Its decision will not be

disturbed on appeal absent a clear abuse of discretion.

. . . If awarded, punitive damages are limited to the

costs of litigation less taxable costs, but, within that

limitation, the extent to which they are awarded is in

the sole discretion of the trier. . . . Limiting punitive

damages to litigation expenses, including attorney’s

fees, fulfills the salutary purpose of fully compensating

a victim for the harm inflicted on him while avoiding

the potential for injustice which may result from the

exercise of unfettered discretion by a [trier of fact].’’

(Citation omitted; internal quotation marks omitted.)

Nelson v. Tradewind Aviation, LLC, supra, 155 Conn.

App. 545.

In this case, the court found the defendant liable

under all eight counts of the operative complaint. It

bears repeating that the defendant in this appeal has

not contested his liability under the first six counts of

that complaint. As a result, the record before us contains undisputed determinations that the defendant

committed various torts against the plaintiff when he

locked the plaintiff out of the corporation—namely,

interfering with the plaintiff’s business relationships,

breaching his fiduciary obligation to the plaintiff,

breaching the implied covenant of good faith and fair

dealing between the parties, breaching the standards

of a corporate director under § 33-756, and breaching

the standards of a corporate officer under § 33-765. The

defendant’s uncontroverted liability thereunder furnishes an adequate basis on which the trier of fact

could conclude that an award of punitive damages was

appropriate. In light of our extensive review of the

ample record in this case, we cannot conclude that the

court abused its discretion in rendering that award.

The judgment is reversed in part and the case is

remanded with direction to vacate the damages award

with respect to $467,786 in lost wages, $103,835 for

obligations owed to the plaintiff’s former wife, and

$326,864 in prejudgment interest, and further to amend

the damages award to reflect an award of $40,500 on

the plaintiff’s claim for one half of the value of the

corporation. The judgment is affirmed in all other

respects.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 System Pros, Inc., also was named as a plaintiff in both the original

complaint and the January 30, 2014 amended complaint. In its memorandum

of decision, the court concluded that System Pros, Inc., was not a proper

party to this case. Neither party challenges that determination in this appeal.

We therefore refer to Majewicz as the plaintiff in this opinion.
2 The operative counterclaim consisted of six counts alleging various transgressions on the part of the defendant. When the court rendered judgment

dissolving the corporation, it ruled in favor of the defendant on that counterclaim, stating that it involved ‘‘the same issues’’ as those raised in the

present action.

3 The third auditor designated by the parties was Philip J. DeCaprio, Jr.,

a certified public accountant with more than forty years of experience. With

respect to designations for what he termed ‘‘specialty work,’’ DeCaprio

testified at trial that ‘‘I’m accredited in business valuation . . . and certified

in financial forensics . . . . I’m a certified valuation analyst . . . . I’m a

certified forensic accountant . . . and I’m also a diplomat of the American

Board of Forensic Accountants.’’

4 Titled ‘‘Majewicz vs. Kasica Damages,’’ exhibit 87 states in full:

‘‘Lost Wages 10/1/2010 to 11/1/2013 – $533,400

‘‘50% of Valenski Payments as of 6/30/2013 – $365,566

‘‘401K Penalties as of 12/31/2012 – $18,194

‘‘Damages as of 12/31/2012 – $533,700

‘‘Administrative cost as of 12/31/2012 – $72,664

‘‘Office Rent as of 12/31/2012 – $12,600

‘‘Alimony Modification Costs as of 10/21/2013 – $103,835

‘‘Custodian Fees as of 6/30/2013 – $11,588

‘‘Attorney Fees – Golas, Golas & Golas as of 10/22/2013 – $95,000

‘‘50% of System Pros Value as of 11/2/2009 – $355,626

‘‘Total as of 11/1/2013 – $2,116,676.’’

5 The defendant does not challenge the award of damages with respect

to DeCaprio’s September 5, 2014 audit of the books and records of the corporation.

6

‘‘[E]specially in the case of non-publicly held corporations, the valuation

of shares of corporate stock can become quite complex and uncertain.’’

Recovery Group, Inc. v. Commissioner of Internal Revenue, 652 F.3d 122,

129 (1st Cir. 2011). Although all three auditors provided valuations of the

corporation, the court in its memorandum of decision elected to credit that

provided by DeCaprio.

7 On April 22, 2015, this court ordered the trial court to articulate ‘‘[t]he

factual and legal basis for awarding the plaintiff one half of the value of

[the corporation] as of December 31, 2012 . . . .’’ In its June 19, 2015

articulation, the court stated: ‘‘[The plaintiff] was an owner of [the corporation] as a stockholder of 50 percent. He was also [its] president and a 50

percent member of the board of directors with [the defendant]. He was,

therefore, entitled to one half[of] the value ofthe corporation since he owned

one half. The amount was determined eitherfrom a report of [DeCaprio] and/

or a three [certified public accountant] panel that decided the value of

[the corporation].’’

8

In its memorandum of decision, the court credited both DeCaprio’s

testimony and his February 25, 2013 report, stating that ‘‘[h]e was a credible

witness . . . . He was devoid of any bias and was independent, and he

gave a good basis for his evaluation of the corporation . . . .’’ We further

note that the court’s award on the accounting count also encompassed

$140,322.55 in damages stemming from DeCaprio’s audit of the books and

records of the corporation. That figure originates from DeCaprio’s September 5, 2014 report, which the court appended to its supplemental judgment.

That report catalogues various adjustments to the corporate account, which

contained funds that the parties divided equally prior to the defendant’s

seizure of the corporation. After detailing various adjustments, the report

concludes that, owing primarily to salary paid to the defendant from that

account for the years 2010 through 2013, there was ‘‘a financial obligation

in favor of [the plaintiff] in the amount of $140,322.55.’’ The court rendered

judgment in favor of the plaintiff in accordance with that report on September 30, 2014. Because the court’s findings in this respect are substantiated

by the evidence in the record, they are not clearly erroneous.

9 The defendant also claims that the court improperly determined that (1)

he breached an oral contract with the plaintiff and (2) the award was not

time barred. In light of our conclusion that the award for lost wages was

not established with reasonably certainty, we need not address those alternative contentions.

10 At trial, the plaintiff described a typical consulting placement as follows:

‘‘You go into a company for a period of time. They may contract you for

six months or a year. It may be for a specific project or a task that they

want you to do, and when that task is done then . . . you wind up working

at another company or another location.’’
11 The plaintiff was employed by Vertex, Inc., to perform consulting work

for Aegon from October, 2011 to July, 2012, at a rate of $50 per hour. On

March 11, 2013, the plaintiff commenced employment with Massachusetts

Mutual in a salaried position that paid him $100,000 annually, which position

he maintained at the time of the trial.

12 The court’s award of $467,786 in damages for lost wages reflects a

reduction for unemployment compensation that the plaintiff received during

the period in question.

13 That prior client was not among those listed in exhibit 70.

14 The plaintiff instituted this action in February, 2010. Trial commenced

on October 30, 2013, and continued over the course of ten additional days,

concluding on January 31, 2014. Over the objection of the defendant, the

court on January 28, 2014—almost two weeks after the plaintiff had rested

his case-in-chief—permitted the plaintiffto file an amended complaint, which

added an eighth count that, for the first time, alleged a breach of contract

on the part of the defendant.

15 Although exhibit 70 also includes an additional placement with Aegon

for a person listed only as ‘‘Reese’’ for a three month period in 2012, Valenski

testified at trial, ‘‘That’s a typo. Foster Reese wasn’t at Aegon. . . . [H]e

worked shortly at ING, and he didn’t work out.’’ Exhibit 71, which consists of

hundreds of pages of invoices from the corporation regarding the placements

detailed in exhibit 70, likewise contains no documentation indicating that

Reese was placed in a service contract with Aegon.

16 The following colloquy transpired during the plaintiff’s testimony on

his proof of damages for lost wages:

‘‘[The Defendant’s Counsel]: [Y]ou didn’t call Aegon to come and testify

on your behalf, did you?

‘‘[The Plaintiff]: Don’t be ridiculous.

‘‘[The Defendant’s Counsel]: I’m not being ridiculous, Mr. Majewicz. It’s

you who’s claiming damages for a job that you claim that for certain you

would have gotten, yet you didn’t bring in any placement person, any representative, or any employee of Aegon to say I would have hired that guy.

‘‘[The Plaintiff]: That’s impractical and wouldn’t happen anyway.

‘‘[The Defendant’s Counsel]: You didn’t even try, did you?

‘‘[The Plaintiff]: No company is going to commit to that.

‘‘[The Defendant’s Counsel]: You didn’t try. You didn’t subpoena a witness.

You didn’t call a witness. You didn’t put the witness on your witness list,

did you?

‘‘[The Plaintiff]: No, we did not.’’

17 In his testimony, the plaintiff stated that ‘‘there were numerous jobs

that were available to me during that period of time that I was not given

an opportunity to apply for . . . and [exhibit 70 reflects] the amount of

money that I would have lost as a result of not having those jobs.’’

18 The record confirms that, after being locked out of the corporation, the

plaintiff was unemployed for more than twenty months from January, 2010

through September, 2011.

19 Passacantano testified that he prepared the plaintiff’s personal tax

returns beginning in 1993, and continued to do so for the next two decades.

20 In his motion for articulation, the defendant stated in relevant part that

‘‘[t]he trial court did not sufficiently articulate the factual and legal basis

for concluding that [the defendant] was liable to pay ‘alimony and other

costs of [the plaintiff’s] divorce’ in the amount of $103,835. . . . The court

did not clearly identify what ‘alimony’ and/or ‘other costs of [the plaintiff’s]

divorce’ amounted to $103,835. The court appears to have accepted, in total,

the amount that [the plaintiff] sought as ‘Alimony Modification Costs’ [on

exhibit 87] based on his submission of his divorce attorney’s invoices . . . .

[The defendant] requests that the court articulate the factual and legal basis

for its finding that [the plaintiff’s] damages recoverable from [the defendant]

include ‘alimony and other costs of [the plaintiff’s] divorce,’ and identify

what costs the court was referring to.’’

21 That list of damages stated simply: ‘‘Alimony Modification Costs as of

10/21/2013 – $103,835.’’

22 The plaintiff also acknowledged that he commenced an alimony modification proceeding in July, 2009, months before any of the transgressions at

issue in this case transpired.

23 For example, the defendant submitted into evidence Marder’s affidavit

of attorney’s fees, in which Marder averred that his fees included work on

the plaintiff’s ‘‘defense of [his former wife’s] motions for contempt, compel,

modification and contempt . . . .’’ The defendant also submitted into evidence copies of Marder’s itemized billing statements for work performed on
behalf of the plaintiff in his postdissolution proceedings. Those statements

describe work on a wide variety of issues, including: ‘‘Preparation — child

support guidelines’’; ‘‘Correspondence — client re: medical insurance application date’’; ‘‘Review document — ex-wife’s financials’’; ‘‘Research — maximum taxable earnings 2012 Social Security’’; ‘‘Pleading preparation —

objection to motion [filed by the plaintiff’s former wife to] modify’’; and

‘‘Review document — child support payment list and transmittal . . . .’’

The record contains no evidence linking such issues, and hence legal fees,

to the conduct of the defendant.

24 Larsen Chelsey Realty Co. is instructive in this regard, as it typifies this

exception. As chronicled by the Supreme Court in its decision, the defendant

was the president of the plaintiff realty company. Larsen Chelsey Realty

Co. v. Larsen, supra, 232 Conn. 484. At the behest of the chairman of the

plaintiff’s board of directors (chairman), the defendant attempted to procure

a buyer or investor for the plaintiff. Id. As the Supreme Court noted, ‘‘[o]n

February 1, [the defendant] met with Barbara Pearce, president of the competing Pearce Company, to learn whether Pearce Company might be interested in buying or investing in the plaintiff. [The defendant] had been a

commercial sales agent for Pearce Company in 1983, and he had a good

relationship with the company and the Pearce family. At this meeting, Pearce

informed [the defendant] that her company was not interested in buying or

investing in the plaintiff, but she did ask whether he would be interested

in taking a position with Pearce Company. At that meeting [the defendant]

gave Pearce a list of the brokers working for the plaintiff. [The defendant]

never discussed this meeting with [the chairman]. [The defendant] again

met with Pearce on February 21, 23 and 24.

‘‘On February 27, unbeknown to [the chairman], [the defendant] told the

plaintiff’s employee brokers that the [plaintiff] was going to close, and he

encouraged them to contact Pearce for jobs. Meanwhile, [the defendant]

prepared a letter to mail to the plaintiff’s clients and business contacts. The

letter, dated and mailed on March 6, 1989, stated that the plaintiff was going

to cease independent operations and would merge with Pearce Company.

That same day, [the defendant] wrote a letter to the New Haven board of

realtors advising it that the plaintiff would be ‘closing,’ that he and two

other realtors would be ‘transferring’ to Pearce Company, and that ‘[w]e

are using the month of March to finish up all old business and to transfer

any new business to [Pearce Company].’ [The defendant] then began to

solicit agents and sign listings on behalf of Pearce Company’’ (Footnotes

omitted.) Id., 485–86. The defendant later ‘‘spoke to a representative of the

owner of the building that leased space to the plaintiff and told her that

the plaintiff was closing and moving that day.’’ Id., 487. On those facts, our

Supreme Court concluded that the plaintiff presented a ‘‘potentially viable

cause of action under CUTPA’’ against the defendant, who ‘‘accepted a job

with a competing [entity] and then, acting as a competitor, took actions

that harmed the plaintiff.’’ Id., 493–94.

25 Accordingly, the tortious conduct perpetrated against the plaintiff by

the defendant, as outlined in counts two through six of the operative complaint, has little bearing on the issue of whether this exception applies.

Those issues pertain to an intracorporate conflict to which CUTPA does

not apply. See Metcoff v. Lebovics, supra, 123 Conn. App. 519 (‘‘[i]t is well

settled that purely intracorporate conflicts do not constitute CUTPA violations’’).

26 The plaintiff testified at trial that he prepared a document detailing the

defendant’s transactions with respect to Kasica Enterprises, LLC, which he

furnished to the Internal Revenue Service approximately one month before

the defendant moved to dissolve the corporation because ‘‘I knew that he

was . . . defrauding the Internal Revenue Service.’’

27 At oral argument before this court, the plaintiff’s counsel stated that

the trial court, in its memorandum of decision, found that the wrongful

detention by the defendant commenced on November 1, 2009. When asked

exactly how much money was due to the plaintiff on that date, counsel

candidly replied, ‘‘I don’t believe that there was a specific amount that was

due at that time.’’