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*********************************************** 
DEREK J. DELEO v. EQUALE AND

CIRONE, LLP, ET AL.

(AC 38527)

Lavine, Prescott and Bright, Js.

Syllabus

The plaintiff sought to recover damages from the defendants for, inter alia,

breach of fiduciary duty and conversion. The plaintiff, a certified public

accountant, was a partner at the defendant accounting firm, where the

defendant C was managing partner. In April 2013, C decided to terminate

his partnership with the plaintiff after it became known that the plaintiff

had engaged in a relationship with a staff accountant. The plaintiff

retained his 38 percent partnership interest through June 30, 2018, and,

after his departure, continued to provide accounting services in New

Milford. The plaintiff thereafter brought the present action, alleging,

inter alia, that he still held a 38 percent interest in the partnership, that

C had excluded him from the daily operations of the partnership, and

that C’s conduct frustrated the economic purpose of the partnership

such that it was no longer reasonable to continue the partnership’s

business in accordance with the partnership agreement. The plaintiff

sought, inter alia, a dissolution and winding up of the partnership and

restoration of his partnership rights. The defendants filed a counterclaim,

special defenses and a claim of setoff. Following a trial to the court,

the trial court rendered judgment in favor of the defendants on the

complaint and on their special defenses, finding, inter alia, that the

plaintiff voluntarily withdrew as partner of the partnership, that C did

not waive the partnership’s right to enforce a noncompete provision in

the partnership agreement, and that the plaintiff had agreed to terminate

his partnership interest as of June 30, 2013. On the plaintiff’s appeal to

this court, held:

1. The plaintiff could not prevail on his claim that the trial court committed

plain error by not ordering the dissolution of the partnership, which

was based on his claim that the partnership could not continue to exist

as a single partner partnership; the record was factually inadequate to

permit this court to find an error so obvious that reversal was required,

the plaintiff’s claim that the partnership was a single partner partnership

that could not exist pursuant to statute (§ 34-301 [12]) was not raised

at trial and to allow him to raise the claim for the first time on appeal

would permit trial by ambuscade, and even if the trial court committed

error, no manifest injustice resulted from this court’s refusal to entertain

the claim newly raised on appeal, which contradicted the plaintiff’s

position in the trial court.

2. The plaintiff’s claim that the trial court improperly estopped him from

contesting the enforceability of a noncompete provision in the partnership agreement was unavailing; although that court stated that the plaintiff was estopped from asserting that the noncompete provision was

unenforceable, it did not apply the doctrine of estoppel to preclude the

plaintiff from asserting his claim, as the court set forth the legal principles that governed the plaintiff’s claim but did not set forth any legal

principles regarding estoppel, it addressed six reasons for its conclusion

that the noncompete provision was enforceable, if the court had applied

the doctrine of estoppel to bar the claim there would have been no need

for it to have addressed the merits of the claim, and it was reasonable

to interpret the court’s discussion of estoppel as a comment on the

plaintiff’s credibility rather than an application of the doctrine.

3. The trial court’s finding that C had not waived enforcement of the noncompete provision in the partnership agreement was not clearly erroneous; the record supported the trial court’s findings that C, as managing

partner of the partnership, repeatedly asserted that the partnership

agreement controlled the plaintiff’s departure, despite statements that

expressed his desire to avoid hurting the plaintiff, all of C’s representations were consistent with the terms of the noncompete provision in

the partnership agreement, which did not prohibit a departing partner

from continuing to practice accounting or from servicing former clients
of the partnership but required that the former partner compensate the

partnership for any clients taken from the partnership.

4. The trial court incorrectly treated the noncompete provision as a liquidated

damages clause and improperly failed to consider the reasonableness

of the restraint imposed by the noncompete provision; because the

plaintiff’s actions did not constitute a breach of contract and the noncompete provision did not require that the plaintiff breach the partnership agreement before the partnership was entitled to compensation

for work that the plaintiff performed for the partnership’s former clients,

the noncompete provision could not be viewed as a liquidated damages

clause designed to fix compensation for a breach of contract, and given

that the noncompete provision did not differ meaningfully from a prohibitive covenant not to compete, the enforceability of the noncompete

provision had to be judged by the same standard used for covenants

not to compete.

Argued December 11, 2017—officially released April 10, 2018

Procedural History

Action to recover damages for, inter alia, alleged

breach of fiduciary duty, and for other relief, brought

to the Superior Court in the judicial district of Danbury,

where the defendants filed a counterclaim; thereafter,

the matter was tried to the court, Truglia, J.; judgment

in favor of the defendants on the complaint and in part

on the counterclaim, from which the plaintiff appealed

to this court. Reversed in part; further proceedings.

Brendon P. Levesque, with whom were Karen L.

Dowd and, on the brief, Scott T. Garosshen, for the

plaintiff (appellant).

Daniel J. Krisch, with whom was Kevin J. Greene,

for the defendants (appellees).
Opinion

BRIGHT, J. The plaintiff, Derek J. DeLeo, appeals

from the judgment of the trial court rendered in favor

of the defendants, Equale & Cirone, LLP (partnership),

and Anthony W. Cirone, Jr., on the plaintiff’s complaint

and the defendants’ special defenses, claim of setoff,

and counterclaim. Specifically, the plaintiff claims that

the trial court (1) committed plain error when it failed to

order the dissolution of the partnership; (2) improperly

estopped him from challenging the noncompete provision in the partnership agreement; (3) improperly found

that the defendants did not waive the enforcement of

the noncompete provision; and (4) improperly concluded that the noncompete clause in the partnership

agreement was enforceable. We agree with the plaintiff’s final claim, and we, therefore, affirm in part and

reverse in part the judgment of the trial court.

The following facts and procedural history, as found

by the trial court or as undisputed in the record, are

relevant to our review. The partnership, an accounting

firm, is a limited liability partnership located in Bethel.

Joseph A. Equale, Jr., and Cirone formed the partnership in 1999. In 2005, the plaintiff, a certified public

accountant, joined the partnership as an equity partner.

The partnership operated under an oral partnership

agreement until January, 2009, when Equale, Cirone,

and the plaintiff executed a written partnership

agreement (partnership agreement). Pursuant to the

partnership agreement, Cirone held a 40 percent interest, Equale held a 35 percent interest, and the plaintiff

held a 25 percent interest. The partnership agreement

was intended to govern all aspects of the partnership.

In January, 2012, the partnership purchased the

assets of Allen & Tyransky, an accounting firm located

in Danbury. As a result of the acquisition, Jack Tyransky

became a nonequity ‘‘contract’’ partner of the partnership. Shortly after the acquisition of Allen & Tyransky,

several of the partnership’s employees began to suspect

that the plaintiff was involved in a romantic relationship

with a female staff accountant at the partnership. In

October, 2012, Cirone learned about the suspicions

regarding the plaintiff’s relationship with the staff

accountant. Thereafter, Cirone confronted the plaintiff

about the alleged relationship, but the plaintiff denied

any such relationship. Later, Cirone approached Equale,

who was preparing to retire from the partnership at the

end of 2012, to discuss the plaintiff’s alleged relationship. Both Equale and Cirone decided to believe the

plaintiff’s denial, and they did not take any further

action at that time.

Equale retired, effective January 1, 2013, but he continued to work for the partnership through the end

of the 2013 tax season. Pursuant to the partnership

agreement, Equale’s shares were acquired by the part-
nership upon his retirement. Cirone and the plaintiff

agreed that following Equale’s retirement Cirone would

own 62 percent of the partnership and the plaintiff

would own the remaining 38 percent.

On April 26, 2013, after the completion of the 2013

tax season, Cirone, Tyranksy, and the plaintiff met at

a diner to discuss the future of the partnership in light

of the plaintiff’s suspected relationship with the staff

accountant. At this meeting,1 Cirone told the plaintiff

that they needed to fire the staff accountant and terminate their partnership. The court credited Cirone’s testimony regarding this meeting, finding that ‘‘given

[Cirone’s] position as managing partner of the firm and

also given the risks that [the plaintiff’s] actions posed

to the firm, [Cirone] had no choice but to separate [the

plaintiff] from the partnership.’’ The plaintiff and Cirone

agreed that their business relationship had to end, and

they acknowledged that any plan for the plaintiff’s

departure would begin with the partnership agreement.

Following their meeting, Cirone and the plaintiff

exchanged several e-mails during May and June, 2013,

regarding the plaintiff’s departure from the partnership.

In these e-mails, the plaintiff did not deny that he was

leaving the partnership, and there was no indication that

he believed that the partnership was being dissolved.

Following these exchanges, Cirone sent an e-mail to

the partnership’s employees informing them that the

plaintiff would be ‘‘transitioning out of the firm’’ beginning on June 17, 2013. The plaintiff retained his 38

percent partnership interest through June 30, 2013, and,

after leaving the partnership, he continued to provide

accounting services in New Milford. Following the

plaintiff’s departure, Cirone first transferred the plaintiff’s interest in the partnership to himself, and then he

transferred a 1 percent interest to Tyransky.

In September, 2013, approximately two months after

leaving the partnership, the plaintiff commenced the

present action against the defendants. The operative

amended complaint was filed on September 29, 2014,

and contained seven counts alleging, inter alia, that the

plaintiff held a 38 percent interest in the partnership,

and that Cirone had excluded him from the daily operations of the partnership. He further alleged that Cirone’s

conduct had frustrated the economic purpose of the

partnership such that it was no longer reasonably practicable to continue the partnership’s business in accordance with the partnership agreement. Additionally, the

plaintiff alleged claims of breach of fiduciary duty and

conversion. The plaintiff sought, inter alia, a dissolution

and winding up of the partnership pursuant to General

Statutes §§ 34-339 (b) (2) (C) and 34-372 (5); restoration

of his partnership rights pursuant to § 34-339 (b) (1);

an accounting and access to the partnership’s books

and records pursuant to General Statutes §§ 34-337 and

34-338; appointment of a receiver pursuant to General
Statutes § 52-509; and money damages.

On January 6, 2015, the defendants filed an answer

denying the plaintiff’s allegations or leaving him to his

proof, asserted various special defenses and a claim

for setoff. The defendants alleged the following special

defenses: the plaintiff’s complaint failed to state a claim

upon which relief could be granted; the plaintiff’s claims

were barred by his own conduct and breach of fiduciary

duties; the plaintiff’s claims were barred by the doctrine

of unclean hands; and the plaintiff had waived any claim

against the defendants because he had terminated his

partnership interest voluntarily. In their claim for setoff,

the defendants alleged, inter alia, that the plaintiff was

liable to the partnership for damages as a result of: selfdealing, violations of his fiduciary duties, and amounts

due pursuant to the noncompete provision in the partnership agreement.

The defendants also filed a four count counterclaim

against the plaintiff, claiming that the partnership had

terminated the plaintiff’s partnership interest for cause,

or, in the alternative, that the plaintiff had terminated

his partnership interest voluntarily. In both counts the

defendants claimed that the value of the plaintiff’s partnership interest was limited to the accrual basis capital

value,2 as defined in the partnership agreement. Additionally, the defendants claimed that the plaintiff is subject to the noncompete provision in the partnership

agreement, requiring him to compensate the partnership for any former clients of the partnership for whom

the plaintiff had provided accounting services following

his departure. In counts three and four, the defendants

alleged that the plaintiff breached his fiduciary duty

pursuant to the partnership agreement and/or pursuant

to §§ 34-338 and 34-339.

The plaintiff denied all the allegations as set forth in

the defendants’ special defenses and claim for setoff.

He also denied the allegations in the defendants’ counterclaim and, by way of special defense, asserted that

the defendants had waived the enforcement of the noncompete provision.

The case was tried to the court over the course of

six days in September, 2015. In its memorandum of

decision dated October 22, 2015, the court rendered

judgment in favor of the defendants on the plaintiff’s

complaint and the defendants’ special defenses. The

court did not credit the plaintiff’s testimony, finding

that the plaintiff, ‘‘through his words and actions, starting with the April 26 meeting through July of 2013,

voluntarily withdrew as a partner of [the partnership].’’

The court credited Cirone’s testimony, finding that Cirone did not waive the partnership’s right to enforce the

noncompete provision in the partnership agreement,

and that the plaintiff had agreed to terminate his partnership interest as of June 30, 2013. The court further

found that the voluntary termination provision3

in the
partnership agreement determined the amount due to

the plaintiff. Accordingly, the court rendered judgment

in favor of the defendants on their counterclaim and

on the plaintiff’s special defense. The court awarded

the defendants $740,783. The court credited the testimony of the defendants’ expert witness with respect

to the calculation of the plaintiff’s accrual basis capital

as of June 30, 2013, and the amount owed by the plaintiff

to the partnership, pursuant to the noncompete provision in the partnership agreement. The court found that

the plaintiff was overdrawn in his partnership income

account by $143,496 as of June 30, 2013, and that his

accrual basis capital as of June 30, 2013, was $165,079.

The court also found that the plaintiff owed $762,366 to

the partnership pursuant to the noncompete provision.

This appeal followed.

I

The plaintiff does not challenge on appeal the court’s

finding that he voluntarily withdrew from the partnership. Instead, he argues that the court committed plain

error by not ordering the dissolution of the partnership

because a single partner partnership cannot exist. At

oral argument, the plaintiff conceded that this claim

was not preserved pursuant to our rules of practice.

Nevertheless, he contends that reversal is appropriate

pursuant to the plain error doctrine. The defendants

argue that this court should not review the plaintiff’s

claim because it contradicts the plaintiff’s pleadings

and arguments in the trial court. We agree with the

defendants.

The following legal principles inform our review.

‘‘[T]he plain error doctrine . . . is not . . . a rule of

reviewability. It is a rule of reversibility. That is, it is a

doctrine that this court invokes in order to rectify a

trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for

reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations

where the existence of the error is so obvious that it

affects the fairness and integrity of and public confidence in the judicial proceedings. . . .

‘‘[Our Supreme Court] recently clarified the [twopronged] framework under which we review claims of

plain error. [Under the] [f]irst [prong], we must determine whether the trial court in fact committed an error

and, if it did, whether that error was indeed plain in

the sense that it is patent [or] readily discernable on

the face of a factually adequate record, [and] also . . .

obvious in the sense of not debatable. . . . [T]his

inquiry entails a relatively high standard, under which

it is not enough for the defendant simply to demonstrate

that his position is correct. Rather, the party seeking

plain error review must demonstrate that the claimed

impropriety was so clear, obvious and indisputable as
to warrant the extraordinary remedy of reversal. . . .

‘‘[U]nder the second prong of the analysis we must

determine whether the consequences of the error are

so grievous as to be fundamentally unfair or manifestly

unjust. . . . Only if both prongs of the analysis are

satisfied can the appealing party obtain relief.’’ (Emphasis omitted; internal quotation marks omitted.) Healey

v. Haymond Law Firm, P.C., 174 Conn. App. 230, 245,

166 A.3d 10 (2017).

After filing the present appeal, the plaintiff filed a

motion for articulation on September 19, 2016,

requesting that the trial court state ‘‘the factual and legal

basis for [its] finding that [the partnership] continued

as a single partner partnership after the plaintiff’s’’ voluntary departure on June 30, 2013. The court denied

the motion for articulation, however, the court stated

that ‘‘[t]he evidence at trial showed (and the court

found) that [the partnership] (1) existed as a for profit

venture between Cirone, [the plaintiff] and Tyransk[y]

prior to [the plaintiff’s] departure from the firm; and

(2) continued after [the plaintiff’s] departure between

Cirone and Tyransk[y], with Cirone as an equity partner

and Tyransk[y] as a nonequity contract partner.’’

Relying on the court’s statement in its order denying

his motion for articulation, the plaintiff contends that

because the court found that Tyransky was not an equity

partner of the partnership after the plaintiff’s departure,

the partnership could not have continued to exist.

Therefore, according to the plaintiff, the court should

have ordered the dissolution of the partnership. The

plaintiff also argues that had the trial court properly

ordered the dissolution of the partnership, the noncompete provision would have been inapplicable

because the plaintiff could not have been in competition

with a partnership that no longer existed. We cannot

conclude under the facts and circumstances of this case

that reversal for plain error is warranted.

First, there is not a factually adequate record.

Although the plaintiff claims that ‘‘the trial court

expressly found that the partnership continued . . .

with . . . Tyransk[y] as a nonequity contract partner’’

after he withdrew from the partnership, he also

acknowledges that ‘‘[t]he testimony at trial . . . conflicted as to when, if ever, Tyransky actually received

the [1] percent equity interest.’’ Indeed, the court’s order

denying the plaintiff’s motion for articulation does not

make any finding as to the duration of Tyransky’s status

as a ‘‘nonequity contract partner.’’ Accordingly, this

court cannot find an error so obvious that reversal is

required on the basis of this record.

Second, it is axiomatic that this court ‘‘should not

consider different theories or new questions if proof

might have been offered to refute or overcome them

had they been presented at trial. . . . Our rules of pro-
cedure do not allow a [party] to pursue one course of

action at trial and later, on appeal, argue that a path

he rejected should now be open to him. . . . To rule

otherwise would permit trial by ambuscade.’’ (Citation

omitted; internal quotation marks omitted.) Nweeia v.

Nweeia, 142 Conn. App. 613, 620, 64 A.3d 1251 (2013).

At trial, the plaintiff did not claim that the partnership

was a single partner partnership that could not exist

pursuant to General Statutes §§ 34-301 (12).4

In fact,

the plaintiff argued the opposite position, claiming that

he continued to hold a 38 percent interest in the partnership. He further alleged that Cirone unlawfully converted his 38 percent interest in the partnership and

transferred 1 percent of that interest to Tyransky. In

light of the plaintiff’s pleadings and arguments at trial,

the defendants had no reason to offer evidence regarding when Tyransky became a partner. To allow the

plaintiff to raise this claim for the first time on appeal

would permit trial by ambuscade. See id.

Finally, even if we assume that the trial court committed error in the present case, ‘‘no manifest injustice

results from our refusal to entertain an argument fashioned anew for appellate purposes, particularly where

the freshly minted argument contradicts the position

that the plaintiff advanced in the trial court.’’ Gladstein

v. Goldfield, 163 Conn. App. 579, 586-87, 137 A.3d 60

(2016), appeal dismissed, 325 Conn. 418, 159 A.3d 661

(2017). Accordingly, we decline to apply the extraordinary remedy of plain error to rescue the plaintiff from

his failed trial strategy.

II

The plaintiff next claims that the court improperly

estopped him from contesting the enforceability of the

noncompete provision in the partnership agreement.

The plaintiff argues that his inclusion of a payment

pursuant to the noncompete provision as a line item in a

submission for his divorce mediation ‘‘do[es] not satisfy

the legal standard for any kind of estoppel.’’ Although

we agree with the plaintiff that estoppel does not apply

under these circumstances, we conclude that the court

did not apply any form of estoppel.

It is well established that ‘‘an opinion must be read

as a whole, without particular portions read in isolation,

to discern the parameters of its holding. . . . Furthermore, we read an ambiguous trial court record so as

to support, rather than contradict, its judgment.’’ In re

Nevaeh W., 317 Conn. 723, 733, 120 A.3d 1177 (2015).

‘‘Additionally, our appellate courts do not presume

error on the part of the trial court. . . . Rather, we

presume that the trial court, in rendering its judgment

. . . undertook the proper analysis of the law and the

facts.’’ (Citations omitted; internal quotation marks

omitted.) Rogan v. Rungee, 165 Conn. App. 209, 223,

140 A.3d 979 (2016).
The trial court addressed the plaintiff’s claim that the

noncompete provision was unenforceable because it

was a penalty. After setting forth the legal standard for

determining whether a particular provision in a contract

is for liquidated damages or is an unenforceable penalty,

the court then proceeded to evaluate the noncompete

provision, listing six reasons supporting its conclusion

that the amount due pursuant to the noncompete provision is for liquidated damages. In the final two sentences

of its analysis, the court stated that ‘‘[the plaintiff]

included the noncompete payment as a line item in his

calculation of the value of his partnership in his divorce

mediation submission. . . . He is, therefore, estopped

from asserting that the noncompete provision is unenforceable.’’ (Emphasis added.)

Although the court stated that the plaintiff is estopped

from asserting that the noncompete provision is unenforceable, our review of the court’s decision convinces

us that the court did not apply the doctrine of estoppel

to bar the plaintiff’s claim. First, the court correctly set

forth the legal principles governing the plaintiff’s claim,5

but did not set forth any legal principles regarding estoppel. Second, the court addressed six reasons for its

conclusion that the noncompete provision was enforceable, before stating that the plaintiff was ‘‘estopped’’

from challenging it. Thus, the plaintiff’s interpretation

of the court’s decision is in tension with the court’s

entire discussion of his claim. Indeed, if the court had

applied the doctrine of estoppel to bar the claim, there

would have been no need for it to have addressed the

merits of the plaintiff’s claim. See State v. Jones, 98

Conn. App. 695, 696, 911 A.2d 353 (2006) (‘‘[b]ecause

we conclude that the defendant’s claim is barred by the

doctrine of res judicata, we do not review the merits

of his claim’’), cert. denied, 281 Conn. 916, 917 A.2d

1000 (2007). Furthermore, in the context of the whole

opinion, it is reasonable to interpret the court’s discussion of estoppel as a comment on the plaintiff’s credibility rather than an application of the judicial doctrine

of estoppel. In fact, the court acknowledged that it

considered the plaintiff’s conflicting position in his

divorce case when it assessed his credibility.6 Accordingly, after reviewing the court’s memorandum of decision in its entirety, we conclude that the court did not

apply any form of estoppel to preclude the plaintiff

from asserting that the noncompete provision was

unenforceable. For that reason, we find no error.

III

The plaintiff also claims that the court improperly

found that Cirone had not waived enforcement of the

noncompete provision in the partnership agreement.

We disagree.

‘‘Waiver is the intentional relinquishment of a known

right. . . . Intention to relinquish [must] appear, but
acts and conduct inconsistent with intention [to assert

a right] are sufficient. . . . Thus, [w]aiver does not

have to be express, but may consist of acts or conduct

from which waiver may be implied. . . . In other

words, waiver may be inferred from the circumstances

if it is reasonable to do so. . . . Whether conduct constitutes a waiver is a question of fact. . . . Our review

therefore is limited to whether the judgment is clearly

erroneous or contrary to law.’’ (Internal quotation

marks omitted.) R.S. Silver Enterprises, Inc. v. Pascarella, 163 Conn. App. 1, 32, 134 A.3d 662, cert. denied,

320 Conn. 929, 133 A.3d 460 (2016). ‘‘A court’s determination is clearly erroneous only in cases in which the

record contains no evidence to support it, or in cases

in which there is evidence, but the reviewing court is

left with the definite and firm conviction that a mistake

has been made.’’ (Internal quotation marks omitted.)

Coppola Construction Co. v. Hoffman Enterprises Ltd.

Partnership, 157 Conn. App. 139, 181, 117 A.3d 876,

certs. denied, 318 Conn. 902, 122 A.3d 631, 123 A.3d

882 (2015).

The plaintiff has failed to establish that the court’s

factual finding was clearly erroneous. The plaintiff

directs this court to portions of the April 26, 2013 conversation that he believes support his position that Cirone waived the noncompete provision. The plaintiff

contends that Cirone expressed his desire not to hurt

him, and Cirone acknowledged that the clients would

decide to go with whomever they wanted. He further

contends that Cirone encouraged him to take his clients,

and that Cirone never expressed an intention to enforce

the noncompete provision until the plaintiff commenced this action. According to the plaintiff, Cirone’s

conduct and representations caused him to believe that

he ‘‘could rest assured that his book of business would

be permitted to leave with him, unassailed by [the partnership’s] enforcement of the noncompete [provision].’’

The court, however, found that Cirone, as managing

partner of the partnership, did not ‘‘waive the firm’s

rights to receive amounts due pursuant to the noncompete provision.’’ Additionally, the court found that

‘‘[a]t no point during the April 26 meeting or later in

their e-mail correspondence did [the plaintiff] deny the

existence or enforceability of the partnership

agreement.’’ Our review of the record supports the

court’s findings. Specifically, during the recorded conversation on April 26, 2013, Cirone asked the plaintiff

if he had a copy of the partnership agreement. The

plaintiff replied: ‘‘I have it. I know it in and out.’’ Cirone

confirmed: ‘‘[T]hat’s what we’re gonna follow.’’ Then,

again, at the end of that conversation, Cirone stated:

‘‘[W]e are not gonna try to stop any client of the firm

from leaving with you. We’ve only gotta discuss how

it’s gonna work in [the] confines [of] the partnership

agreement.’’
Despite Cirone’s statements expressing his desire to

avoid hurting the plaintiff, Cirone repeatedly asserted

that the partnership agreement controlled the plaintiff’s

departure. Moreover, all of Cirone’s representations are

consistent with the terms of the noncompete provision

in the partnership agreement.7 The noncompete provision does not prohibit a departing partner from continuing to practice accounting or from servicing former

clients of the partnership. The provision requires that

a former partner compensate the partnership for any

clients that he or she takes from the partnership. Thus,

the evidence adduced at trial supports the court’s finding that Cirone did not waive the partnership’s rights

pursuant to the partnership agreement. Because there

is evidence in the record to support the court’s finding,

we conclude that the court’s finding was not clearly

erroneous.8

IV

The plaintiff’s final claim is that the trial court improperly concluded that the noncompete provision was

enforceable. Specifically, he argues that the noncompete provision is a restraint of trade and, accordingly, the court improperly failed to evaluate the

reasonableness of the restraint. The defendants argue

that the noncompete provision is not a restraint of trade

and thus not subject to a reasonableness analysis.

Instead, the defendants claim that the noncompete provision is, in reality, an inaptly titled liquidated damages

clause. We agree with the plaintiff.9

Our review of the plaintiff’s claim requires us to construe the contract. ‘‘[W]ith any issue of contract interpretation, we begin with the language of the contract.

. . . 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 commitments is a question of law.’’ (Citation omitted; internal quotation marks

omitted.) Financial Freedom Acquisition, LLC v. Griffin, 176 Conn. App. 314, 338–39, 170 A.3d 41, cert.

denied, 327 Conn. 931, 171 A.3d 454 (2017). The relevant

language in the partnership agreement is plain and

unambiguous and, therefore, our review is plenary.

The language of the noncompete provision cannot

be read as a liquidated damages clause. ‘‘A provision

for liquidated damages . . . is one the real purpose of

which is to fix fair compensation to the injured party

for a breach of contract.’’ (Internal quotation marks

omitted.) Tsiropoulos v. Radigan, 163 Conn. App. 122,

127-28, 133 A.3d 898 (2016). In the present case, the

noncompete provision does not require that the plaintiff

breach the partnership agreement before the partnership is entitled to compensation for work that the plaintiff performs for the partnership’s former clients. In
fact, under the terms of the partnership agreement, the

plaintiff had every right to provide services to former

clients of the partnership; he just had to compensate

the partnership if he did so. Because the plaintiff’s

actions do not constitute a breach of contract, the noncompete provision cannot be viewed as a liquidated

damages clause designed to fix compensation for a

breach of contract.

Instead, under controlling law, the noncompete provision is exactly that because it imposes a financial disincentive on the plaintiff to deter competition with the

partnership. In the present case, the noncompete provision10 in the partnership agreement requires a former

partner to forfeit his Deferred Income Amount11 if the

partner provides any accounting, auditing, tax or consulting services for one of the partnership’s former clients during the first five years following his departure

from the partnership. Additionally, the former partner

is required to pay 150 percent of the average annual

fees that the partnership billed to the former client

during the previous two years prior to the partner’s

departure. The provision does not prohibit a former

partner from providing accounting services to former

clients of the partnership; rather, it requires that the

former partner compensate the partnership. Simply put,

a partner may leave the partnership and engage in the

business of accounting subject to certain economic disincentives.

Our interpretation of the noncompete provision at

issue in this case is controlled by our Supreme Court’s

decision in Deming v. Nationwide Mutual Ins. Co., 279

Conn. 745, 761, 905 A.2d 623 (2006). In Deming, the

court considered whether a forfeiture provision in an

employment contract was, in effect, a covenant not to

compete. Id., 760–68. The provision provided that if

an employee engaged in certain competitive conduct,

following the cancellation of the contract, the employee

would forfeit any deferred compensation that had been

earned during the employee’s employment. Id., 750. The

court recognized that ‘‘the contract does not require

an employee’s express promise not to compete after

termination of employment; instead, it requires a forfeiture of the employee’s benefits if he or she engages in

competition after termination of employment.’’ Id., 761.

Nevertheless, the court concluded that the provision

needed to be analyzed under the reasonableness test

for covenants not to compete. Id., 767. The court reasoned that ‘‘[p]ermitting a forfeiture clause that is not

subject to a reasonableness assessment is essentially

no different than enforcing a covenant not to compete,

which, not properly circumscribed, is the classic example of a direct restraint.’’ Id., 768.

The facts of this case are also remarkably similar to

those in Holloway v. Faw, Casson & Co., 319 Md. 324,

572 A.2d 510 (1990), which our Supreme Court cited
with approval in Deming. See Deming v. Nationwide

Mutual Ins. Co., supra, 279 Conn. 767. In Holloway,

the plaintiff, a former partner of an accounting firm,

challenged provisions in the partnership agreement that

required him to forfeit certain deferred income payments and pay the partnership ‘‘100% of the prior year’s

fees for any clients’’ for whom the departing partner

continued to provide accounting services. Holloway v.

Faw Casson & Co., supra, 319 Md. 328. The Maryland

Supreme Court held that ‘‘[t]he covenants in [the partnership agreement] are sufficiently similar to covenants

not to compete to invoke, in general, the analysis

applied under the law bearing on covenants not to compete.’’ Id., 333.

In the present case, the noncompete provision does

not differ meaningfully from a prohibitive covenant not

to compete. Just as in Deming and Holloway, the partnership agreement imposes financial disincentives,

including a forfeiture of the former partner’s deferred

income amount, instead of requiring a partner’s express

promise not to compete. The financial disincentives for

competition discourage a former partner from continuing to provide accounting services to the partnership’s

clients. Thus, although the provision at issue is an indirect restraint on competition, much like the forfeiture

provision at issue in Deming, it accomplishes the same

result as a covenant not to compete: a restraint of trade.

Deming v. Nationwide Mutual Ins. Co., supra, 279

Conn. 767. ‘‘[A] covenant not to compete and a forfeiture

upon competing are but alternative approaches to

accomplish the same practical result. . . . When

pruned to their quintessence, they tend to accomplish

the same results and should be treated accordingly.’’

(Internal quotation marks omitted.) Id., 768–69. Consequently, the enforceability of the noncompete provision

must be judged by the same standard used for covenants

not to compete.

‘‘A covenant that restricts the activities of an

employee following the termination of his employment

is valid and enforceable if the restraint is reasonable.’’

New Haven Tobacco Co. v. Perrelli, 18 Conn. App. 531,

533, 559 A.2d 715, cert. denied, 212 Conn. 809, 564 A.2d

1071 (1989). Whether a restraint is reasonable ‘‘depends

upon the competing needs of the parties as well as

the needs of the public. These needs include: (1) the

employer’s need to protect legitimate business interests, such as trade secrets and customer lists; (2) the

employee’s need to earn a living; and (3) the public’s

need to secure the employee’s presence in the labor

pool.’’ Deming v. Nationwide Mutual Ins. Co., supra,

279 Conn. 761.

In his posttrial brief, the plaintiff argued that the

noncompete provision is unenforceable because it is

unreasonable as a matter of law. He claimed that

enforcement would ‘‘eliminate [his] ability to pursue
his occupation in an economically tenable way.’’ The

court, however, did not consider the reasonableness of

the restraint imposed by the noncompete provision.

Instead, the court concluded that the noncompete provision was enforceable as a liquidated damages provision. For the reasons set forth previously in this opinion,

we conclude that the court incorrectly treated the noncompete provision as a liquidated damages clause and

improperly failed to consider the reasonableness of the

restraint imposed by the noncompete provision.

The judgment is reversed only as to the award of

damages pursuant to count two of the defendants’ counterclaim and the case is remanded for further proceedings limited to determining whether the noncompete

provision in the partnership agreement is reasonable

under applicable law; the judgment is affirmed in all

other respects.

In this opinion the other judges concurred.

1 The plaintiff secretly recorded this meeting on his cell phone and the

parties agreed to enter a transcript of the recording into evidence.

2 Section II E of the partnership agreement defines accrual basis capital

value as ‘‘the cash basis financial statement prepared by the [partnership]

on a monthly basis modified for inclusion of accounts receivable as defined

in [Item F] and work in process in [Item G] with the appropriate adjustments

for liabilities and expense accruals including but not limited to payroll

accruals, malpractice accruals, and other operating expenses.’’ (Emphasis

omitted.)

3 Section III D 1 of the partnership agreement provides in relevant part:

‘‘Any Partner may terminate his interest in the [partnership] at any time

provided that the Partner gives the partnership at least one hundred eighty

(180) days prior notice in writing of his intention to terminate his interest

. . . . The only amounts that will be due to such Partner will be his [accrual

basis capital], unless, at the discretion of the remaining Partners, they choose

to provide any additional payments. . . . As noted in part F3 of Section III

of this Agreement, the withdrawing partner is subject to the [noncompete

provision] of that section.’’ (Emphasis omitted.)

4 General Statutes § 34-301 (12) defines a partnership as ‘‘an association

of two or more persons to carry on as co-owners a business for profit . . . .’’

5 Although the court applied the correct test for determining whether a

contractual provision for payment of money arising out of a breach of

contract is a liquidated damages clause or an unenforceable penalty, for

the reasons set forth in part IV of this opinion, that was not the correct

legal test to apply to the noncompete provision at issue in the present case,

which cannot properly be considered either a liquidated damages clause or

an unenforceable penalty.

6 The court stated: ‘‘Although it is not necessary to the court’s final determination in this case, when evaluating [the plaintiff’s] credibility, the court

also takes into consideration [his] calculation of the value of his partnership

interest in the divorce case. The court finds it highly suspect that [he] would

value his partnership interest in the dissolution of marriage action in 2013

or 2014 as $354,000, and then attempt to value it at $1,300,000 in this case

less than a year later.’’

7 The noncompete provision is contained in Section III F 3 of the partnership agreement. It provides in relevant part: ‘‘If during the (5) five year period

after any retirement/withdrawal/termination [of a partner] he provides any

accounting, auditing, tax or consulting services for a client that was represented by the [partnership] during the two (2) year period prior to his

termination, he will pay to [the partnership] as compensation for the goodwill

and know-how of [the partnership] relating to such client an amount equal

to 150% of the total average annual fees billed to such client or to any related

persons or entities by the [partnership] during the two (2) year period prior

to such termination. Such amount shall be payable to the partnership in

equal monthly installments over the 36 month period commencing with the

date of termination. At the option of [the partnership], such installments

may be recovered by the [partnership] by set-off against any payments that
may be due to such [p]artner by the [partnership]. . . . Any [p]artner who

violates the noncompete provisions of this section is not entitled to any

[Deferred Income Amount] payments. . . .’’ (Emphasis omitted.)

8 The plaintiff also argues that Cirone’s ‘‘representation that the noncompete [provision] would be waived induced substantial reliance by the

plaintiff that would result in severe detriment if the noncompete’s enforcement is not estopped.’’ As noted previously, the trial court found that Cirone

made no such representation. Consequently, there was no representation

of waiver on which the plaintiff could rely. Accordingly, we reject the

plaintiff’s equitable estoppel argument.

9 Because we agree with the plaintiff that the trial court erred in failing

to evaluate the reasonableness of the noncompete provision, we do not

address his argument that the noncompete provision is an unenforceable

penalty.

10 See footnote 7 of this opinion for the relevant portion of the noncompete provision.

11 Section III F 2 (b) of the partnership agreement provides that Deferred

Income Amount ‘‘will equal the Goodwill value for the most recently completed fiscal year computed by taking two (2) times the average of the

partner’s past three years’ total annual compensation (per IRS form K1).’’

(Emphasis omitted.)