Chugh v. Kalra ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
RAKSHITT CHUGH v. AASHISH KALRA ET AL.
(SC 20562)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Keller, Js.
Syllabus
The plaintiff C sought to recover compensatory and punative damages from
the defendants, K and T Co., for, inter alia, breach of a partnership
agreement in connection with a failed business venture. In 2004, C and
K had agreed to form a partnership to pursue investment opportunities.
In furtherance of that agreement, they established numerous companies,
including and principally T Co., an investment advisory company incor-
porated in the Cayman Islands. C and K each held a 50 percent equity
interest in T Co. through entities controlled by C and K. The shares of
stock representing C’s interest were owned by A Co. and H Co., and
the shares of stock representing K’s interest were owned by P Co. Over
time, C and K’s relationship deteriorated, and, in 2012, with no notice
to C, T Co.’s board of directors voted to remove C as a director, which
left K exclusively in charge of T Co. Thereafter, K proceeded to treat
T Co. and its assets as his own, and C was excluded from any involvement
in T Co.’s affairs. A Co. and H Co. subsequently filed a petition in the
Grand Court of the Cayman Islands to wind up T Co. and to liquidate
and divide its assets between K and C. P Co. opposed the petition by
asserting as an affirmative defense that C had breached his fiduciary
duty to T Co. in numerous ways. The Cayman Islands court granted the
petition and rejected P Co.’s affirmative defense, concluding that there
was no merit to any of the allegations against C. Meanwhile, K, through
P Co., brought an action in federal court against C, A Co., and other
related entities. T Co. was thereafter substituted as the plaintiff in the
federal action and claimed that C had breached his fiduciary duty to T
Co. in numerous ways. T Co.’s specific allegations against C substantially
reprised the allegations P Co. had asserted in the winding up proceeding.
Following the decision of the Cayman Islands court, the District Court
granted the motion for summary judgment filed by the defendants in
the federal action on the ground that T Co. was collaterally estopped
from pursuing its claims. While the federal action was still pending, C
filed the present action against K and T Co., alleging, breach of partner-
ship agreement, breach of fiduciary duty, and libel per se. The libel
claim was predicated on a 2013 press release K had issued following
the decision of the Cayman Islands court, in which K accused C of
stealing T Co.’s customer database and misappropriating its business
opportunities, and of paying Cayman Islands liquidators to interfere in
the federal action. Following a trial, at which C’s expert witness on
damages, S, testified that the press release had cost C more than $20
million in lost profit, the jury returned a verdict in favor of C, awarded
him $9.4 million in damages, and authorized the imposition of punitive
damages, which the trial awarded in the amount of approximately $3
million. K filed a motion to set aside the verdict, arguing, with respect
to the verdict on the libel claim, that the record was devoid of evidence
supporting S’s testimony regarding lost profit because his testimony
was predicated on the false assumption that C’s hedge fund and private
equity fund had $250 million under management in 2012 when it was
undisputed that C and his companies had no money under management
at that time. The trial court denied K’s motion to set aside the verdict,
concluding that any error involving the admission of S’s testimony was
harmless because it was clear that the jury, having awarded C only $4
million in compensatory damages in connection with the libel claim,
did not fully accept S’s testimony and because, although the jury was
instructed that it could award C compensatory damages only if he proved
that he lost profits as a result of the harm to his reputation from the
press release, that instruction was an incorrect statement of the law,
as C was not required to prove actual damages or lost profits in a libel
per se case. Thereafter, the trial court rendered judgment for C, from
which K appealed. Held:
1. K could not prevail on his claim that C’s claims in the present action
were barred by the federal compulsory counterclaim rule (Fed. R. Civ.
P. 13 (a) (1)) on the ground that they were compulsory counterclaims
in the federal action, as that rule was inapplicable because there had
been no decision on the merits of the claims T Co. asserted in the federal
action; in light of the equitable principles of res judicata, estoppel, and
waiver underlying rule 13 (a) (1), a court need not apply the rule when
to do so would be unjust, such as when a decision on the merits was
not rendered in the prior action, and, therefore, regardless of whether
K had been a party to the federal action, rule 13 (a) (1) would not bar
C’s claims in the present action because the District Court determined
that T Co. was collaterally estopped from pursuing it claims in the
federal action, and it would be anomalous for this court to conclude
that C’s claims were barred by principles of res judicata, estoppel, or
waiver due to C’s failure to assert them as counterclaims in an action
that itself was barred by those principles.
2. There was no merit to K’s claims that C’s breach of partnership agreement
and breach of fiduciary duty claims failed as a matter of law under
Karanian v. Maulucci (185 Conn. 320), in which the court indicated
that, if partners adopt the corporate form to insulate against personal
liability, they cease to be partners, and that any partnership C and K
created ceased to exist when they incorporated T Co., among other
entities, in 2006: Karanian did not control C’s claims because, unlike
the partners in that case, who intended to and did reorganize their
partnership into a corporation, there was no evidence in the present
case that C and K ever intended to adopt the corporate form in place
of their partnership, but, rather, the evidence indicated that C and K’s
partnership was an overarching entity comprised of numerous compa-
nies owned by C, K, and their families, acting in concert to further the
remunerative goals of the partnership, and K cited no authority holding
that a partnership cannot operate in such a manner; moreover, insofar
as K claimed that the evidence did not support a finding that he and C
were ever partners, although the evidence of a partnership was not
overwhelming, it was sufficient to support the jury’s finding of an oral
agreement between C and K to carry on, as co-owners, a business for
profit and that they carried on that business from 2004 until at least 2013.
3. The trial court abused its discretion in admitting S’s testimony on damages
with respect to C’s libel per se claim: it was undisputed that S’s testimony
that C sustained more than $20 million in lost profit as the result of
K’s 2013 press release had no basis in fact; moreover, the trial court
improperly instructed the jury that it could award special damages only
if it found that C had proven lost profit and that instructional error was
not harmless, as this court could not conclude that the jury would have
awarded C $4 million in general damages in connection with C’s libel
claim but for that error, there was no other evidence to support the
award for lost profit, and, therefore, the damages award could not stand;
furthermore, because the record revealed that a component of the trial
court’s punitive damages award was a success fee for C’s counsel in
the amount of 25 percent of the total compensatory damages award,
which included the $4 million award for C’s libel claim, the punitive
damages award also could not stand; accordingly, the judgment was
reversed as to C’s libel claim and the case was remanded for a new
trial on that claim and for a hearing in damages.
Argued October 13, 2021—officially released April 12, 2022
Procedural History
Action to recover damages for, inter alia, breach of
a partnership agreement, and for other relief, brought
to the Superior Court in the judicial district of Hartford
and transferred to the Complex Litigation Docket,
where ARC Capital, LLC, and Peak XV Capital, LLC,
were added as plaintiffs; thereafter, the court, Schu-
man, J., granted the defendants’ motion to dismiss cer-
tain counts of the complaint; subsequently, the plaintiffs
withdrew the complaint in part; thereafter, the court,
Schuman, J., granted in part the defendants’ motion
for summary judgment and rendered judgment thereon;
subsequently, the court, Schuman, J., denied in part
the defendants’ motion to preclude certain evidence;
thereafter, the case was tried to the jury before Schu-
man, J.; verdict for the named plaintiff; subsequently,
the court, Schuman, J., denied the named defendant’s
motion to set aside the verdict and for judgment not-
withstanding the verdict, and rendered judgment for
the named plaintiff, from which the named defendant
appealed. Reversed in part; further proceedings.
John W. Cerreta, with whom was Joseph T. Naw-
rocki, for the appellant (named defendant).
John G. Balestriere, pro hac vice, with whom were
Stefan Savic and, on the brief, Matthew W. Schmidt,
pro hac vice, for the appellee (named plaintiff).
Opinion
KELLER, J. This case is the latest in a series of cases
arising out of a failed business venture between the
named plaintiff, Rakshitt Chugh,1 and the named defen-
dant, Aashish Kalra.2 Chugh commenced the present
action seeking compensatory and punitive damages for,
inter alia, breach of partnership agreement, breach of
fiduciary duty, and libel per se. A jury found in favor
of Chugh on those three counts, awarding him damages
in the amount of $9,400,0003 and authorizing the imposi-
tion of punitive damages, which the trial court awarded
in the amount of $2,965,488.29. On appeal,4 Kalra claims
that the trial court improperly denied his motions to
set aside the verdict and for judgment notwithstanding
the verdict because (1) Chugh’s claims are barred by
the compulsory counterclaim rule set forth in rule 13
(a) (1) of the Federal Rules of Civil Procedure,5 (2) as
a matter of law, no partnership existed between the
parties during the relevant time frame, and (3) with
respect to the libel claim, the trial court improperly
admitted the testimony of Chugh’s expert witness on
damages because there was no evidence to support
the testimony. We agree with Kalra’s third claim and,
accordingly, reverse in part the judgment of the trial
court.
Because issues related to the underlying action have
been litigated on prior occasions in numerous other
forums,6 when appropriate, we quote directly from the
decisions in those cases in setting forth the relevant
facts and procedural history. Chugh and Kalra, both of
whom are naturalized citizens of the United States, were
born in India but immigrated to the United States to
pursue postsecondary educational and employment oppor-
tunities. In 2002, Chugh’s brother, who had attended
high school with Kalra in India, introduced them in New
York City. The two men became friends, and, between
2002 and 2004, Kalra worked as a consultant for Byte
Consulting, Inc., a company founded by Chugh in 2000.
By 2004, they were meeting nearly every day for lunch.
It was during one of their lunch meetings, in early 2004,
that they agreed to form a partnership to pursue invest-
ment opportunities in India. At the time, India had just
announced that it would open its doors to foreign invest-
ment in real estate and infrastructure projects in early
2005, an opportunity that they saw themselves as uniquely
positioned to exploit. They agreed that theirs would
be a 50/50 partnership and that all strategic decisions
relating to the business, including where to set up
offices and whom to hire, would have to be unanimous.
In furtherance of the partnership agreement, Chugh
and Kalra established numerous companies around the
world.7 Principal among them was Trikona Advisors
Limited (TAL), an investment advisory company incor-
porated in the Cayman Islands. ‘‘Each man held a [50]
percent equity stake in TAL through entities controlled
by them. Chugh’s shares were owned by ARC Capital,
LLC (ARC Capital), and Haida Investments [Limited
(Haida)], and Kalra’s shares were owned by Asia Pacific
[Ventures Limited (Asia Pacific)]. At the same time,
the two men formed Trinity Capital [PLC (Trinity)], a
closed-end fund listed on the London Stock Exchange,
through which they solicited investments. Kalra and
Chugh managed Trinity through TAL. Trinity paid TAL
a fee for its management services, calculated at [2]
percent of Trinity’s net asset value plus a perfor-
mance fee.
‘‘The 2008 economic crisis took its toll on TAL and
soured the relationship between Chugh and Kalra. Trini-
ty’s shareholders began pressuring the Trinity board
[of directors (board)] to sell the company’s assets and
[to] distribute capital which, while it might benefit the
shareholders, would reduce TAL’s management fees
by lowering Trinity’s net asset value. Chugh and Kalra
differed on how to respond to the Trinity board’s pro-
posed asset sale: Kalra opposed the move, while Chugh
wanted to be more conciliatory to the shareholders.
TAL tried to prevent the sell-off by acquiring the shares
of [QVT Financial LP (QVT)], one of Trinity’s main
shareholders, but the deal collapsed when TAL could
not secure the necessary financing. Frustrated, Kalra
advocated taking legal action against QVT for breach
of contract, but was ultimately dissuaded from that
course by Chugh and outside legal counsel.’’ Trikona
Advisors Ltd. v. Chugh, 846 F.3d 22, 26–27 (2d Cir.
2017).
‘‘The souring of Kalra and Chugh’s relationship culmi-
nated on January 11, 2012, when, with no notice to
Chugh, TAL’s board of directors voted to remove him
as a director. This left Kalra exclusively in charge of
TAL. Thereafter, Kalra proceeded to treat TAL and its
assets as his own and Chugh was excluded from further
involvement in the business.’’ Id., 27. ‘‘TAL’s collapse
spawned a number of legal proceedings in the United
States and abroad, [including] a [winding up] proceed-
ing in the Cayman Islands and [a] federal civil [action]
in Connecticut . . . .’’ Id.‘‘On February 13, 2012, ARC [Capital] and Haida,
which held Chugh’s TAL shares and were controlled by
Chugh, filed a petition in the Grand Court of the Cayman
Islands (Cayman court), seeking to ‘wind up’ TAL, a
Cayman corporation. The [petition] sought to liquidate
the business and [to] divide its assets between Chugh
and Kalra. Asia Pacific, which held Kalra’s TAL shares
and was controlled by Kalra, opposed [the] petition.
Under Cayman Islands law, a court may order a com-
pany to be wound up if it is ‘of [the] opinion that it is
just and equitable’ to do so. . . . [ARC Capital and
Haida] argued to the Cayman court that it would be
just and equitable to liquidate the company because:
(1) TAL had experienced a ‘loss of substratum,’ i.e., a
loss of its ability to ‘carry on the business for which it
was established,’ due to its dire financial condition and
the complete breakdown in trust between Kalra and
Chugh; (2) Kalra had wrongfully caused Chugh to be
removed from TAL’s board and thereby deprived Chugh
of his ‘legitimate expectation of being involved in
[TAL’s] management’; and (3) after he had removed
Chugh from the board, Kalra proceeded to misuse TAL’s
assets for his sole benefit.
‘‘[Asia Pacific] opposed the [winding up of TAL] by
asserting the affirmative defense that Chugh had
breached his fiduciary duty to TAL in several ways, and
that his removal from the board was therefore justified.
Specifically, [it] argued that: (1) Chugh intentionally
sabotaged TAL’s attempt to acquire [QVT’s] shares in
Trinity and had ‘caused’ TAL to pay QVT £2 million for
covenants of ‘extremely limited value’; (2) Chugh had
later ‘prevented’ TAL from bringing suit against QVT for
breach of contract, over Kalra’s objections; (3) Chugh
‘forced’ Kalra to agree to an unfavorable settlement
with Trinity in the breach of contract arbitration arising
out of [a] failed [business] deal; and (4) Chugh ‘stole’
TAL’s assets and customer information for use in estab-
lishing Peak XV [Capital, LLC (Peak XV) and other enti-
ties] and interfered in the distribution of payments due
to Kalra. [Asia Pacific] framed these arguments as juris-
dictional defenses, arguing that if any one of these alle-
gations were true, Chugh would be precluded from
invoking the Cayman court’s equitable jurisdiction
under the doctrine of unclean hands.
‘‘The Cayman court tried the [winding up] proceeding
over seven days in January of 2013. At the trial’s conclu-
sion, the court granted [the] petition. It found that ‘each
of’ [ARC Capital and Haida’s] allegations was supported
by evidence, and that these allegations ‘taken together’
supported a finding that it was just and equitable to
wind up TAL.8 It also rejected each of [Asia Pacific’s]
affirmative defenses, concluding that there was ‘no
merit whatsoever [to] the allegations made against . . .
Chugh.’ ’’ (Citation omitted.) Id., 27–28. Indeed, the Cay-
man court found that Asia Pacific’s allegations against
Chugh, including its claim that Chugh had stolen TAL’s
assets and destroyed its business, were ‘‘completely at
odds with the evidence of what actually happened
. . . .’’ In re Trikona Advisors Ltd., Grand Court of
the Cayman Islands, Docket No. FSD 18 of 2012 (AJJ)
(January 31, 2013). The court concluded that, in fact,
it was Kalra who had engaged in ‘‘blatantly improper
self-dealing,’’ calling Kalra’s testimony to the contrary
‘‘disingenuous’’ and his evidence ‘‘wholly unreliable.’’
Id. The court further stated that, after listening to Kalra
testify over the course of several days, it had come to
the conclusion that there was nothing he would not do,
‘‘no matter how dishonest, to ensure that . . . Chugh
. . . [is] excluded from any share in [TAL’s] remaining
[net asset value].’’ Id. It further stated that Kalra had
commenced an action in the United States District
Court for the District of Connecticut against Chugh in
which he had asserted all of the baseless allegations
against Chugh that he had asserted in the winding up
proceeding. See id. The court described Kalra’s action
in the District Court as ‘‘a thoroughly dishonest abuse
of process.’’ Id. On May 15, 2013, the Cayman court
issued a ‘‘Default Costs Certificate,’’ ordering Asia
Pacific to pay ARC Capital’s and Haida’s litigation
expenses in the winding up proceeding in the amount
of $760,067.65.9
As the Cayman court indicated, ‘‘[o]n December 28,
2011, two months before the commencement of the
[winding up] proceeding . . . Kalra, through Asia
Pacific, sued . . . [Chugh, ARC Capital, and other
related entities (Chugh defendants)] in the [D]istrict
[C]ourt in Connecticut. After TAL’s board removed
Chugh, TAL was substituted as [the] plaintiff. TAL’s
. . . operative complaint . . . assert[ed] eleven
causes of action against the Chugh [d]efendants sound-
ing in breach of fiduciary duty, aiding and abetting
breach of fiduciary duty, unfair competition, theft of
trade secrets, civil conspiracy, conversion, statutory
theft, unjust enrichment, and abuse of process. TAL
alleged that Chugh breached his fiduciary duty by: (1)
undermining TAL’s negotiating positions in the QVT
[deal] and [another business deal]; (2) causing TAL to
enter into an unfavorable settlement of its claims against
Trinity; (3) interfering with payments due to Kalra; and
(4) misappropriating TAL’s customer information and
assets in the course of founding Peak XV to unfairly
compete with TAL. These claims substantially reprised
the allegations [Asia Pacific] asserted as affirmative
defenses to [the winding up] petition in the [Cayman
court].
‘‘Following the ruling of the Cayman court in the
[winding up] proceeding . . . the Chugh [d]efendants
moved for summary judgment in the [D]istrict [C]ourt
based on collateral estoppel. They argued that in decid-
ing the petition the Cayman court had already made
findings of fact in Chugh’s favor on all of [the] assertions
regarding TAL’s collapse, and that [TAL] was therefore
collaterally estopped from relitigating those factual dis-
putes. The [D]istrict [C]ourt agreed, and . . . granted
[the] motion for summary judgment.’’ Trikona Advisers
Ltd. v. Chugh, supra, 846 F.3d 28–29. The United States
Court of Appeals for the Second Circuit affirmed the
District Court’s judgment. Id., 35.
On January 8, 2014, while the federal action was still
pending, Chugh filed the underlying action against the
defendants, alleging, inter alia, breach of partnership
agreement, breach of fiduciary duty, and libel per se.10
The libel claim was predicated on a March 13, 2013
press release Kalra had issued, following the Cayman
court’s ruling, in which Kalra accused Chugh of stealing
TAL’s customer database and misappropriating its busi-
ness opportunities. He also accused Chugh of paying
the Cayman Island liquidators ‘‘$500,000 to interfere in
the Connecticut litigation [then pending in the District
Court] against [Chugh].’’ The trial court subsequently
stayed the state court proceeding pending the outcome
of TAL’s postjudgment motions and appeal in the fed-
eral action. Following the lifting of the stay, the defen-
dants filed a motion for summary judgment in which
they argued, inter alia, that Chugh’s claims11 were barred
by rule 13 (a) (1) of the Federal Rules of Civil Procedure
because all of the claims were compulsory counter-
claims in the federal action. They further argued that
Chugh’s breach of partnership agreement and breach
of fiduciary duty claims failed as a matter of law because
Chugh and Kalra never entered into a partnership agree-
ment and that, even if they had, the agreement ended
as a matter of law in 2006 when TAL incorporated in the
Cayman Islands because, under Karanian v. Maulucci,
185 Conn. 320, 323–24, 440 A.2d 959 (1981), a company
cannot be both a partnership and a corporation at the
same time. Finally, the defendants argued that the libel
claim also failed as a matter of law because the 2013
press release addressed a matter of public concern, and,
therefore, any statement contained therein was consti-
tutionally protected speech. They further argued that
they were entitled to summary judgment on the libel
claim because truth is a complete defense to libel, and
the press release was an ‘‘essentially true’’ recitation of
the federal complaint.
The trial court denied in part the defendants’ motion
for summary judgment. With respect to their contention
that Chugh’s claims were compulsory counterclaims in
the federal action, the court concluded that Chugh was
not required to assert them in the federal action because
Kalra was not a party to that action ‘‘and there is no
authority squarely holding that a party must cite in a
nonparty to assert compulsory counterclaims against
the nonparty.’’ In light of the court’s determination that
rule 13 (a) (1) of the Federal Rules of Civil Procedure
was inapplicable because Kalra was not an opposing
party in the federal action, it did not address Chugh’s
assertion that the rule also was inapplicable because
Chugh’s claims in the present case did not arise out of
the same transaction or occurrence that was the subject
matter of the federal complaint.
The trial court also denied the motion for summary
judgment with respect to the defendants’ contention
that, under Karanian, any partnership between the par-
ties ended with TAL’s incorporation. Citing Bartomeli
v. Bartomeli, 65 Conn. App. 408, 783 A.2d 1050 (2001),
the court concluded that merely because a company
cannot be both a corporation and a partnership does
not mean that the partnership between Chugh and Kalra
ended with TAL’s incorporation. Whether the partner-
ship continued to exist after 2006, the court concluded,
was a genuine issue of material fact for the jury to
decide. The court also noted that, pursuant to Chugh’s
theory of the case, the partnership was not congruent
with TAL but, rather, consisted of all of the companies
comprising the Trikona Group, such that TAL’s incorpo-
ration could not have been a superseding event for the
partnership. Finally, the court rejected the defendants’
argument that they were entitled to summary judgment
on the libel claim because the statements contained
in the 2013 press release involved a matter of public
concern, and, as such, they were protected by the first
amendmentto thefederal constitution.The courtexplained
that the first amendment ‘‘does not absolutely bar defa-
mation claims against public figures or claims involving
matters of public concern but, rather, merely affects
the standard of proof’’ and whether the standard was
met in this case was a question of fact for the jury. The
court similarly rejected the defendants’ contention that
they were entitled to summary judgment because the
statements contained in the press release were factually
true, explaining that whether the statements were true
was also a question of fact properly reserved for the
jury.
After the jury returned a verdict in favor of Chugh
on the breach of partnership agreement, breach of fidu-
ciary duty, and libel claims, Kalra filed a motion to set
aside the verdict on the same grounds asserted in the
motion for summary judgment. Additionally, Kalra argued
that the court should set aside the verdict as to the
libel claim on the ground that the record was devoid
of evidence supporting the testimony of Chugh’s expert
witness on damages, Professor Fabio Savoldelli, that
the 2013 press release cost Chugh between $20.2 and
$27.7 million in lost profits. Kalra argued that Savol-
delli’s testimony was predicated on the false assump-
tion that Chugh’s hedge fund and private equity fund
had $250 million under management in 2012 when, in
fact, it was undisputed that Chugh and his companies
had no money under management in 2012. He further
argued that ‘‘Savoldelli calculated damages based on
an assumption that Chugh raised capital through 2012
and then invested that money thereafter.’’ Given that
assumption, Kalra argued, ‘‘the 2013 press release could
not conceivably have affected Chugh’s ability to raise
capital through 2012.’’
The trial court denied Kalra’s motion to set aside the
verdict. Although the court acknowledged that Kalra’s
argument for setting aside the verdict as to the libel
claim had ‘‘strong logical appeal,’’ it concluded that any
error involving the admission of Savoldelli’s testimony
was harmless because it was clear that the jury, having
awarded Chugh only $4 million in compensatory dam-
ages, ‘‘did not fully accept Savoldelli’s testimony . . . .’’
The trial court further concluded that Savodelli’s testi-
mony was harmless because, although the jury was
instructed that it could award Chugh compensatory
damages only if Chugh proved ‘‘ ‘that he lost profits as
a result of the harm that the statement in question did
to his reputation,’ ’’ that instruction was an incorrect
statement of the law, and, in fact, Chugh ‘‘was not required
to prove actual damages or lost profits in a libel per se
case.’’
On appeal, Kalra renews his claims before the trial
court that (1) Chugh’s entire action is barred by the
federal compulsory counterclaim rule, (2) Chugh’s breach
of partnership agreement and breach of fiduciary duty
claims fail as a matter of law under Karanian, and
(3) there was no evidence to support the testimony of
Chugh’s expert witness on damages relative to the libel
claim, and, therefore, the trial court abused its discre-
tion in admitting that testimony. We address each claim
in turn.
I
We begin with Kalra’s claim that the trial court incor-
rectly concluded that Chugh’s claims were not compul-
sory counterclaims in the federal action because Kalra
was not a party to that action. Rule 13 (a) (1) of the
Federal Rules of Civil Procedure provides in relevant
part that ‘‘[a] pleading must state as a counterclaim any
claim that—at the time of its service—the pleader has
against an opposing party if the claim: (A) arises out
of the transaction or occurrence that is the subject
matter of the opposing party’s claim; and (B) does not
require adding another party over whom the court can-
not acquire jurisdiction.’’ (Emphasis added.) Kalra
argues that, in applying this rule, federal courts have
held that the phrase ‘‘opposing party’’ should be con-
strued liberally to include not only parties who were
formally named in the prior action but any party who
was in privity with the named party or had control over
the action. See Metropolitan Life Ins. Co. v. Kubichek,
83 Fed. Appx. 425, 431 (3d Cir. 2003) (‘‘the rationales
supporting a liberal reading of ‘transaction or occur-
rence’ in [rule] 13 (a) should also apply to ‘opposing
party,’ such that the potential counterclaimant is obli-
gated to assert his or her counterclaim against even an
unnamed party if it arises out of the same transaction
or occurrence and if the unnamed party is the functional
equivalent of the named party, is controlling the litiga-
tion, or is an alter ego of the named party’’). But see 6
C. Wright et al., Federal Practice and Procedure (3d
Ed. 2010) § 1404, pp. 13–14 (‘‘The first sentence of [r]ule
13 (a) requires . . . a pleading to state a counterclaim
that the pleader has against an ‘opposing party’ at the
time of its service. The federal courts have not given a
definitive answer to the question of who is an opposing
party for purposes of a counterclaim, but the point has
caused relatively few difficulties.’’ (Footnote omitted.)).
Chugh responds that the trial court correctly deter-
mined that rule 13 (a) (1) did not bar his claims in the
present case because Kalra was not a party to the fed-
eral action. He further contends that rule 13 (a) (1) is
inapplicable for the additional reason that his claims
in the present case do not arise out of the same transac-
tion or occurrence that was the subject matter of the
federal complaint. We conclude that rule 13 (a) (1) is
inapplicable because there was no decision on the mer-
its in the federal action. Accordingly, we need not
decide whether Kalra was an ‘‘opposing party’’ under
a liberal reading of rule 13 (a) (1), or whether Chugh’s
claims in the present case arose out of the same transac-
tion or occurrence as the complaint in the federal action.
We begin our analysis by noting that Connecticut is
not a compulsory counterclaim state. ‘‘In Connecticut,
the fact that a defendant in a prior action did not assert
a related cause of action in that prior action does not
foreclose the defendant from asserting those claims in
a new action filed in the future. As explained in the
commentary to the Restatement (Second) of judgments:
‘The justification for the existence of such an option is
that the defendant should not be required to assert his
claim in the forum or the proceeding chosen by the
plaintiff but should be allowed to bring suit at a time
and place of his own selection.’ 1 Restatement (Second),
[Judgments] § 22, comment (a), pp. 186–87 [1982].’’
(Footnote omitted.) State v. Bacon Construction Co.,
160 Conn. App. 75, 88, 124 A.3d 941, cert. denied, 319
Conn. 953, 125 A.3d 532 (2015); see also Lowndes v.
City National Bank, 79 Conn. 693, 696, 66 A. 514 (1907)
(‘‘[w]hile the law encourages, it does not compel, the
settlement of all controversies between the same par-
ties by a single action’’); Hansted v. Safeco Ins. Co. of
America, 19 Conn. App. 515, 520 n.4, 562 A.2d 1148(‘‘[b]ecause Connecticut does not have a compulsory
counterclaim rule . . . [the plaintiff] cannot be pre-
cluded from bringing the present claim on the ground
that he failed to bring [it as] a counterclaim in [the prior
action]’’ (citation omitted)), cert. denied, 212 Conn. 819,
565 A.2d 540 (1989).
Remarkably, this is the first time that this court has
been asked to consider the applicability of rule 13 (a)
to, and its preclusive effect on, a state court proceeding.
Other state appellate courts that have considered this
issue, however, generally have held that the rule ought
to be applied in the same manner that it is applied by
the federal courts. See, e.g., Nottingham v. Weld, 237
Va. 416, 420, 377 S.E.2d 621 (1989) (‘‘It has been held
that a state court must give a federal court order, dis-
missing a diversity case for failure to prosecute, the
same preclusive effect it would have been given in the
federal courts, even though state law would have per-
mitted the maintenance of a subsequent action follow-
ing a dismissal by that state’s courts. . . . Although
courts have disagreed, the majority, and we think the
better view is that the forum court must look to the
original court’s construction of its compulsory counter-
claim rule, and accord it full faith and credit.’’ (Citation
omitted; footnote omitted.)). But see Van Pembrook v.
Zero Mfg. Co., 146 Mich. App. 87, 105, 380 N.W.2d 60(1985) (rejecting claim that principles of comity or full
faith and credit required Michigan Court of Appeals to
give effect to Missouri compulsory counterclaim rule:
‘‘[i]n recognizing and enforcing the laws of another
state, this [c]ourt is disinclined to overrule the positive
law of this forum to give foreign law effect especially
when it would contravene the fixed policy of the law
of this state’’); 6 C. Wright et al., supra, § 1417, p. 161
(questioning the applicability of rule 13 (a) to states
that do not have compulsory counterclaim rule: ‘‘The
rule itself and the [a]dvisory [c]ommittee [n]ote accom-
panying it are silent on whether [r]ule 13 (a) was
intended to be a rule of administration for the federal
courts or was expected to have wider application.
Indeed, it is doubtful whether the rulemakers are given
the power by the Rules Enabling Act [28 U.S.C. § 2072(2018)] to decide that question or to extend the effect
of the federal rules to the state courts.’’ (Footnote omit-
ted.)).
Rooted in principles of res judicata, estoppel, and
waiver; see Tyler v. DH Capital Management, Inc., 736
F.3d 455, 460 (6th Cir. 2013); the purpose of rule 13 (a)
of the Federal Rules of Civil Procedure is ‘‘to prevent
multiplicity of actions and to achieve resolution in a
single lawsuit of all disputes arising out of common
matters.’’ Southern Construction Co. v. Pickard, 371
U.S. 57, 60, 83 S. Ct. 108, 9 L. Ed. 2d 31 (1962); see
also Super Natural Distributors, Inc. v. MuscleTech
Research & Development, 140 F. Supp. 2d 970, 978–79
(E.D. Wis. 2001) (‘‘[r]ule 13 (a) was designed to balance
the interest of the counterclaimant in prosecuting the
counterclaim in a forum of its own choosing against
the [court’s] interest in conserving judicial resources’’
(internal quotation marks omitted)). In light of the equi-
table principles underlying the rule, it is apparent that
a court need not apply it when to do so would work an
injustice; see Carnation Co. v. T.U. Parks Construction
Co., 816 F.2d 1099, 1103 (6th Cir. 1987) (‘‘the waiver or
estoppel theory [underlying rule 13 (a)] allows more
discretion not to hold [that a] claim is barred [when]
to do so is manifestly unjust’’); such as when a decision
on the merits was not rendered in the prior action
because it was dismissed on grounds of res judicata or
for failure to state a claim on which relief could be
granted. See, e.g., Tyler v. DH Capital Management,
Inc., supra, 460 (plaintiff’s failure to plead compulsory
counterclaims in prior action was not bar to later action
because ‘‘the principles of res judicata . . . apply
[only] to adjudications on the merits’’); id., 459 (‘‘a party
is not required to assert a counterclaim [when] it suc-
cessfully files a [preanswer] motion to dismiss’’); Mar-
tino v. McDonald’s System, Inc., 598 F.2d 1079, 1083
(7th Cir.) (‘‘[t]he principle of res judicata at issue . . .
treats a judgment on the merits as an absolute bar to
relitigation between the parties and those in privity with
them’’ (emphasis added)), cert. denied, 444 U.S. 966,
100 S. Ct. 455, 62 L. Ed. 2d 379 (1979); see also National
Union Fire Ins. Co. of Pittsburgh v. Jett, 118 F.R.D.
336, 338 (S.D.N.Y. 1988) (‘‘Rule 13 [(a)] requires that a
compulsory counterclaim be raised only when it is
related to the ‘subject matter of the opposing party’s
claim.’ Dismissal of an action is a judicial determination
that the plaintiff has no claim. Therefore, compulsory
counterclaims that were not raised prior to dismissal
are not barred in future proceedings.’’); Horn & Hardart
Co. v. National Railroad Passenger Corp., 659 F. Supp.
1258, 1264 (D.D.C. 1987) (‘‘In this case, the policy driving
rule 13 (a) must give way to a more important concern.
When [the defendant] filed a rule 12 (b) motion in
response to [the plaintiff’s] complaint in [the prior
action], [the defendant] was in effect arguing that [the
plaintiff] had not proffered a valid claim. In holding for
[the defendant], the [c]ourt confirmed the [defendant’s]
contention. The so-called claim did not require a plead-
ing in response. . . . In such a case, the party opposing
an invalid claim should not be required to fully litigate
any claims of its own . . . .’’ (Citation omitted.)), aff’d,
843 F.2d 546 (D.C. Cir.), cert. denied, 488 U.S. 849, 109
S. Ct. 129, 102 L. Ed. 2d 102 (1988); 6 C. Wright et al.,
supra, § 1417, pp. 154–55 (‘‘courts have avoided the
application of [claim preclusion] rules when no decision
on the merits was rendered in the first action’’).
Accordingly, even if Kalra had been a party to the
federal action, rule 13 (a) of the Federal Rules of Civil
Procedure would not bar Chugh’s claims in the present
case in light of the District Court’s determination that
TAL was collaterally estopped from pursuing the claims
in the federal action. As we indicated, after the Cayman
court issued its ruling in the winding up proceeding, the
District Court granted the Chugh defendants’ motion
for summary judgment, stating that ‘‘Asia Pacific . . .
attempted to defend against the winding up of TAL on
the ground of unclean hands, arguing that [ARC Capital
and Haida] . . . were barred from invoking the court’s
equitable jurisdiction because of Chugh’s breaches of
fiduciary duty, which were attributable to [them]. As
evidence of Chugh’s misconduct, Asia Pacific put on
evidence relating to each of TAL’s claims in this litiga-
tion.’’ Trikona Advisers, Ltd. v. Chugh, United States
District Court, Docket No. 3:11-cv-2015 (SRU) (D. Conn.
June 5, 2015), aff’d, 846 F.3d 22 (2d Cir. 2017). The
court further stated: ‘‘The unclean hands defense was
a dispositive issue in the Cayman [court] proceeding,
and the bulk of the winding up proceeding was devoted
to the parties’ attempts to prove or disprove Chugh’s
alleged misconduct.’’ Id. ‘‘Having chosen to fight [through
Asia Pacific] the winding up petition by advancing as
a defense all of the substantive claims raised in this
litigation, [TAL] cannot now avoid the consequences of
its actions. Even under the . . . restrictive approach
[of the Restatement (Second) of Judgments], [its] claims
are barred by the doctrine of issue preclusion.’’ Id.It would be anomalous, to say the least, were we to
conclude that Chugh’s claims in the present case are
barred by principles of res judicata, estoppel, or waiver
due to his failure to assert them as counterclaims in a
case that itself was barred by those principles. We do
not read rule 13 (a) of the Federal Rules of Civil Proce-
dure or the case law interpreting it as requiring such a
result, and, therefore, we will not impose it.12 As the
United States Court of Appeals for the Fifth Circuit
stated in a similar context, ‘‘[i]f one hauled into [c]ourt
as a defendant has a claim but the adversary plaintiff
has not, the nominal defendant ought to be allowed to
name the time and place to assert it. . . . It is one
thing to concentrate related litigation once it is properly
precipitated. It is quite another thing for the [Federal
Rules of Civil Procedure] to compel the institution of
litigation.’’ Lawhorn v. Atlantic Refining Co., 299 F.2d
353, 357 (5th Cir. 1962). In light of the foregoing, we
reject Kalra’s claim that rule 13 (a) (1) bars Chugh’s
claims in the present case on the ground that all of
them were compulsory counterclaims in the federal
action.13
II
We next address Kalra’s claim that Chugh’s breach
of partnership agreement and breach of fiduciary duty
claims fail as a matter of law under Karanian v. Mau-
lucci, supra, 185 Conn. 320, in light of language in that
case that, ‘‘[i]f [partners] adopt the corporate form, with
the corporate shield extended over them to protect
them against personal liability, they cease to be partners
and have only the rights, duties and obligations of stock-
holders. They cannot be partners inter sese and a corpo-
ration as to the rest of the world.’’ (Internal quotation
marks omitted.) Id., 324, quoting Jackson v. Hooper, 76
N.J. Eq. 592, 599, 75 A. 568 (1910). Kalra argues that
‘‘Karanian is fatal to Chugh’s claim of an enduring
partnership agreement that survived corporate forma-
tion . . . . Any oral partnership created over lunch in
2004 . . . definitively ceased to exist when Chugh and
Kalra incorporated TAL, Trinity, and the subsidiary cor-
porate entities in 2006.’’ Chugh responds that Karanian
is irrelevant to the outcome of this case for the simple
reason that ‘‘there is no evidence . . . that Chugh and
Kalra intended to adopt the corporate form and [to]
replace their partnership with a corporation, as
opposed to simply choosing to own corporations within
the Trikona Group partnership.’’ (Internal quotation
marks omitted.) Chugh further contends that, under
Connecticut law, a partnership can own any type of
assets, including corporations, and that the jury reason-
ably found, on the basis of the evidence presented, that
Chugh and Kalra’s partnership consisted of owning and
running a series of companies comprising the Trikona
Group, but the partnership was not itself subsumed
within any one of those companies. We agree with
Chugh.
General Statutes § 34-301 (12) defines ‘‘partnership’’
as ‘‘an association of two or more persons to carry on
as co-owners a business for profit . . . .’’ Section 34-
301 (13) defines ‘‘partnership agreement’’ as ‘‘[an] agree-
ment, whether written, oral or implied, among the part-
ners concerning the partnership, including amendments
to the partnership agreement.’’ This court previously
has recognized that ‘‘general and limited partners are
bound in a fiduciary relationship and, as such, must act
as trustees and represent the interests of each other.’’
(Internal quotation marks omitted.) Hi-Ho Tower, Inc.
v. Com-Tronics, Inc., 255 Conn. 20, 39, 761 A.2d 1268(2000); see also Iacurci v. Sax, 313 Conn. 786, 800, 99
A.3d 1145 (2014) (partners ‘‘are per se fiduciaries’’).
Whether Chugh and Kalra entered into an oral partner-
ship agreement in 2004 was a question of fact for the
jury. See, e.g., Bender v. Bender, 292 Conn. 696, 728, 975
A.2d 636 (2009) (‘‘[i]t is well settled that the existence
of a contract is a question of fact’’). Whether, under
Karanian, that agreement ended as a matter of law in
2006 is a question of law subject to this court’s plenary
review. See, e.g., Fish v. Fish, 285 Conn. 24, 37, 939
A.2d 1040 (2008) (trial court’s determination of proper
legal standard is question of law subject to plenary
review).
We agree with Chugh that Karanian is not controlling
of his breach of partnership agreement and breach of
fiduciary duty claims. To understand why, we must
revisit the facts of that case. In Karanian, the trial
court found that the plaintiff’s father, Charles Karanian,
and the defendant, Richard Maulucci, Sr., ‘‘agreed (1)
to enter into a joint enterprise to open and operate a
roller-skating rink in Wallingford . . . (2) to a 50 per-
cent share for each of them in the business; (3) to
change eventually the joint enterprise into a corporation
and (4) to contribute [$20,000] each to the business as
a capital investment. Karanian made his contribution
and named the plaintiff as the holder of the beneficial
interest of his investment. Maulucci . . . never fulfilled
his promise to make a similar contribution of cash.
‘‘In September, 1977, Maulucci . . . filed with the
[O]ffice of the [S]ecretary of the [S]tate a certificate of
incorporation, an appointment of statutory agent for
service, and an organizational and first annual report.
***
‘‘In the latter part of March, 1978, Maulucci . . .
barred Karanian from the business premises and took
over complete control of the business operation. The
dispute between the parties had escalated to the point
where it was no longer feasible for them to operate
the business as equal owners. As a result, the plaintiff
commenced [an] action, claiming an accounting, dam-
ages, the appointment of a receiver and other relief.
‘‘On the basis of these facts, [the trial court con-
cluded] that [a]s a consequence of the neglect to imple-
ment the agreement to operate as a corporation, the
corporate entity may be a shield for Karanian and Mau-
lucci against the outside world so as to protect them
from personal liability for corporate activities, but as
between themselves, they, in essence and in reality,
have only a partnership, with each having a [50] percent
interest therein.’’ (Emphasis omitted; internal quotation
marks omitted.) Karanian v. Maulucci, supra, 185
Conn. 322–23.
On appeal, both parties claimed that the trial court
erred in concluding that, as between themselves, Kara-
nian and Maulucci were partners, despite having incor-
porated their business by filing the necessary paperwork
with the Secretary of the State. See id., 323. This court
agreed and, in doing so, quoted Jackson v. Hooper,
supra, 76 N.J. Eq. 599, for the proposition that, when
partners in a business venture ‘‘ ‘adopt the corporate
form, with the corporate shield extended over them to
protect them against personal liability, they cease to
be partners and have only the rights, duties and obliga-
tions of stockholders. They cannot be partners inter
sese and a corporation as to the rest of the world.’ ’’
Karanian v. Maulucci, supra, 185 Conn. 324.
Unlike in the present case, however, the trier of fact
in Karanian found not only that the parties intended
to reorganize their joint venture into a corporation but
that they did, in fact, complete such a reorganization.
See id., 322. On appeal, the sole issue before this court
was whether, in light of these findings, the trial court
properly could find, over the parties’ objections, that
their business was both ‘‘a corporation and a partner-
ship at the same time.’’ Id., 324. On the basis of the
record and the undisputed facts, which included a certi-
fied copy of the certificate of incorporation endorsed
by the Secretary of the State, this court concluded that
‘‘the roller-skating business conducted by [the parties]
operated as a corporation and not as a partnership.’’
Id., 324–25. Because the parties in Karanian did not
claim that their partnership survived the incorporation
of the roller-skating rink—indeed, both sides main-
tained that there was no partnership—this court had no
reason to consider whether a partnership could survive
incorporation and, if so, under what circumstances.
Courts that have considered this issue, however, as
Kalra acknowledges in his appellate brief, consistently
have held that a partnership can operate through a
corporation, so long as it is the intent of the partners
to do so and the rights of third parties, such as creditors
or shareholders, are not adversely affected. As the Sec-
ond Circuit Court of Appeals has explained: ‘‘When the
parties intend to merge their entire joint venture agree-
ment, including their rights inter sese and the conduct
of the business enterprise planned or conducted under
the agreement, into the form of a corporation, they are
bound by the result and are relegated to their rights as
corporate stockholders. . . .
‘‘[However] when the parties to a joint venture agree-
ment, in forming a corporation to carry out one or more
of its objectives, intend to reserve certain rights inter
sese under their agreement, which do not interfere with
or restrict the management of the affairs of the corpora-
tion, its exercise of corporate powers, or the rights of
third parties doing business with it, these rights being
extrinsic to the corporate entity and its operations, such
joint venture agreement may be enforced.’’ (Citations
omitted.) Sagamore Corp. v. Diamond West Energy
Corp., 806 F.2d 373, 378 (2d Cir. 1986); see id., 378–79
(citing cases); see also Arditi v. Dubitzky, 354 F.2d
483, 486–87 (2d Cir. 1965) (‘‘There is little logical reason
why individuals cannot be partners inter sese and a
corporation as to the rest of the world, so long as the
rights of the third parties such as creditors are not
involved. . . . The courts of New York and New Jersey
have come to recognize this . . . at least to the extent
of permitting suit [on] joint venture obligations if it is
apparent that the intention of the parties was that the
corporation should be only a means of carrying out the
joint venture . . . or a way of organizing different
branches of a wide-reaching joint enterprise . . . .’’
(Citations omitted; internal quotation marks omitted.));
Paretti v. Cavalier Label Co., 702 F. Supp. 81, 83–84
(S.D.N.Y. 1988) (‘‘[i]n New York, entrepreneurs may
consider themselves to be partners even though their
business is organized as a corporation, so long as the
partnership agreement does not interfere with the rights
of third parties such as creditors’’); Eng v. Brown, 21
Cal. App. 5th 675, 696, 230 Cal. Rptr. 3d 771 (2018)
(‘‘Partners may, by agreement, continue their relations
as copartners in conjunction with their relationship as
stockholders of a corporation, and the law would take
cognizance of such dual relationship and deal with the
parties in the light of their [agreements between them-
selves], independently of their incorporation . . . .
[C]ourts will enforce preincorporation agreements among
partners or joint venturers who have incorporated in
order to carry out the agreement between or among the
partners or joint venturers.’’ (Citations omitted; internal
quotation marks omitted.)), review denied, California
Supreme Court, Docket No. S248552 (July 11, 2018);
Gruber v. Wilner, 213 Ga. App. 31, 34, 443 S.E.2d 673(1994) (‘‘[i]t is generally held that a joint venture agree-
ment continues in effect following the formation of a
corporation created to implement it if the intention of
the parties to this effect is clear’’ (emphasis omitted;
internal quotation marks omitted)); Koestner v.
Wease & Koestner Jewelers, Inc., 63 Ill. App. 3d 1047,
1050, 381 N.E.2d 11 (1978) (‘‘[a]n emphasis on substance
over form has led numerous courts to conclude that
. . . [t]here is little logical reason why individuals can-
not be partners inter sese and a corporation as to the
rest of the world, so long as the rights of third parties
such as creditors are not involved’’ (internal quotation
marks omitted)); Blank v. Blank, 222 App. Div. 2d 851,
853, 634 N.Y.S.2d 886 (1995) (‘‘[l]acking a compelling
reason to preclude individuals from acting as partners
between themselves and as a corporation to the rest
of the world . . . courts have sanctioned such an
arrangement as long as the rights of third parties, like
creditors, are not involved and the parties’ rights under
the partnership agreement are not in conflict with the
corporation’s functioning’’); Schuster v. Largman, 308
Pa. 520, 531, 162 A. 305 (1932) (principle that business
cannot be partnership and corporation at same time ‘‘does
not mean that a partnership may not organize corpora-
tions to handle a portion of its business and own all of
the stock in them’’); Jolin v. Oster, 44 Wis. 2d 623, 630,
172 N.W.2d 12 (1969) (citing cases and noting that ‘‘a
preincorporation joint adventure or partnership agree-
ment providing for the use of a corporation as a medium
for the venture survives the corporation’’).
In the present case, there is simply no evidence that
Chugh and Kalra ever intended to adopt the corporate
form in place of their partnership. To the contrary, as
the trial court stated in denying Kalra’s motion to set
aside the verdict, the partnership, as presented to the
jury, was an ‘‘overarching entity’’ comprised of numer-
ous companies owned by Chugh, Kalra, and their
respective families, acting in concert to further the
remunerative goals of the partnership. Kalra cites no
authority, and we are aware of none, holding that a
partnership cannot operate in this manner.14 Nor did
Kalra argue at trial that a partnership cannot operate
in this manner or take exception to the trial court’s
instruction to the jury that it could.15 His sole con-
tention, rather, was that the evidence did not support
a finding that he and Chugh were ever partners.16 The
jury evidently disagreed.
Chugh’s and Kalra’s testimony in this regard could
not have been more diametrically opposed. Whereas
Chugh testified that the two men were introduced in
2002, that they were eating lunch with one another
nearly every day by 2004, and that they decided to form
a partnership to pursue investment opportunities in
India at the beginning of 2004,17 Kalra testified that he
did not know Chugh in 2004, that the two men ‘‘never
ever discussed a partnership agreement,’’ and that it
was ‘‘completely unthinkable’’ that he would have
entered into such an agreement with Chugh, in 2004
or any other time. During cross-examination, however,
Kalra acknowledged that he repeatedly referred to
Chugh as his ‘‘partner’’ during the Cayman winding up
proceeding in 2013—and elsewhere over the years—
and that he testified during that proceeding that he ‘‘did
not want [a] winding down [of TAL],’’ but, rather, he
just ‘‘did not want to be partners with . . . Chugh any-
more.’’ He also acknowledged that he and Chugh ‘‘asso-
ciate[d] for a profit in business’’ under the umbrella of
the Trikona Group and that ‘‘a substantial benefit of
working in the Trikona Group was to make . . . money
for [themselves and their respective families].’’
Although Chugh’s evidence of a partnership was not
overwhelming, we agree with the trial court that it was
sufficient to support the jury’s finding of an oral agree-
ment between Chugh and Kalra to carry on, as co-
owners, a business for profit—to wit, the Trikona
Group—and that the two men carried on that business
from 2004 until at least 2013.
III
We turn, therefore, to Kalra’s claim that the trial court
abused its discretion in admitting the testimony of
Chugh’s expert witness on damages, Savoldelli, because
there was insufficient evidence to support his testi-
mony. Chugh responds that the trial court correctly
determined that any error in the admission of Savol-
delli’s testimony was harmless because the jury obvi-
ously did not ‘‘fully accept’’ his testimony and the trial
court incorrectly instructed the jury that Chugh was
required to prove damages relative to the libel per se
claim when, in fact, he was not required to prove dam-
ages. We agree with Kalra.
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to trial,
Kalra filed a motion in limine to preclude Savoldelli’s
testimony on the ground that it had no basis in scientific
fact but was wholly speculative and conjectural. Kalra
argued that Savoldelli had testified, during his deposi-
tion, that his damages estimate assumed that Chugh
could have raised $250 million for his investment fund,
Peak XV, but for Kalra’s defamatory statements, because
‘‘Chugh was one of two partners at [Trinity] and that
fund had raised on the order of $500 million . . . .’’
Savoldelli stated that ‘‘[he] conservatively just assumed
that each of the two [partners]’’ had raised one half of
Trinity’s funds and, therefore, that Chugh would have
been able to raise that same amount for his own invest-
ment fund. In his motion in limine, Kalra argued that
Savoldelli’s expert testimony was inadmissible under
State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d
645 (1998), which requires that ‘‘proposed scientific
testimony . . . be demonstrably relevant to the facts
of the particular case in which it is offered, and not
simply . . . valid in the abstract.’’ Id., 65. Kalra argued
that, under this standard, Savodelli’s testimony must
be excluded because it was undisputed that Chugh and
Peak XV failed to raise any funds between 2009 and
2015.
In its ruling on the motion in limine, the trial court
noted that it had ‘‘heard the parties in chambers’’ with
respect to the issues raised in the motion and that it
had decided to ‘‘allow [their] experts to testify about
the market conditions during the time in question and
the qualities or conditions necessary to raise funds
. . . .’’ The court further stated that it would ‘‘allow
the experts to render a damages opinion or analysis
that focuses on the amount that the market would yield
assuming a particular base amount, provided there is
evidence to support that assumption.’’
At trial, Savoldelli testified that the 2013 press release,
which accused Chugh of bribery, would have been ‘‘fatal’’
to Chugh’s two investment funds. He further testified
that his damages estimate ‘‘assum[ed]’’ that the two
funds ‘‘had 250 million [dollars] under management as
of 2012’’ and that, by applying a ‘‘cash flow analysis
begin[ning] effectively midway through the year in
2012,’’ he was able to determine that the companies
would have earned $20.2 to $27.7 million between 2012
and 2026, but for the 2013 press release. At the conclu-
sion of the evidence, the trial court instructed the jury in
relevant part: ‘‘[If] you reject the defendant’s affirmative
defense [with respect to the libel claim], then you
should consider what damages, if any, to award the
plaintiff for libel. Ordinarily, the plaintiff would have
to prove that a libelous statement caused harm to his
reputation. However, certain written defamatory state-
ments are so harmful in and of themselves that the
plaintiff is entitled to recover at least nominal damages
for injury to reputation without proving that the publica-
tion actually caused harm to the plaintiff. I have deter-
mined that the statement in question falls into this cate-
gory; therefore, if you find that the plaintiff has proven
the first two elements of libel and that the defendant
has not proven his affirmative defense, then you must
award the plaintiff at least $1 in nominal damages.
‘‘Nominal damages should be awarded if you find
that the defamatory material is of an insignificant char-
acter, or because you find that the plaintiff ha[s] bad
character, so that no substantial harm has been done
to the plaintiff’s reputation, or because there is no proof
that serious harm has been done to the plaintiff’s reputa-
tion.
‘‘It is up to you to decide whether to award . . .
Chugh only nominal damages or, instead, to award him
compensatory damages for any proven injury to his
reputation and economic loss; thus, on this count, if
you reach the issue of damages in accordance with
these instructions, and if [Chugh] proves that he lost
profits as a result of the harm that the statement in
question did to his reputation, you should award com-
pensatory damages instead of nominal damages.’’
During deliberations, the jury sent a note to the judge
inquiring whether there was ‘‘a cap’’ on what it could
award in nominal damages. In response, the trial court
instructed the jury: ‘‘No, but here is some additional
guidance on the meaning of nominal damages. Nominal
damages are a trivial sum of money awarded to a litigant
who has established a cause of action but has not estab-
lished that he is entitled to compensatory damages.’’
Following the jury’s verdict, Kalra filed a motion to
set aside the verdict as to the libel claim on a variety
of grounds, but primarily because there was no evi-
dence to support Savoldelli’s testimony that Chugh had
lost more than $20 million as a result of the 2013 press
release. Kalra argued that the trial court should have
recognized that Savoldelli’s testimony was irrelevant
and, therefore, inadmissible under Porter given that
his damages estimate assumed that Chugh’s investment
funds had $250 million under management in 2012
when, in fact, according to Chugh’s own testimony, they
had no money under management in 2012. The trial
court denied the motion, reasoning that any error relat-
ing to Savoldelli’s testimony was harmless. Specifically,
the court reasoned: ‘‘[Kalra’s] argument, which he pre-
sented to the jury, has strong logical appeal. Unfortu-
nately, [Chugh’s] brief does not respond to it. . . . The
court is left with little guidance as to how to handle
this newly raised issue.
‘‘The court concludes that any error involving the
admission of Savoldelli’s testimony was harmless. To
begin with, the jury did not fully accept Savoldelli’s
testimony of damages exceeding $20 million. Instead,
the jury awarded $4 million in lost profits on the libel
[claim] . . . .
‘‘Further, [Chugh], under our law, was not required
to prove actual damages or lost profits in a libel per se
case. The court charged that, because the [2013] press
release was libelous per se, the jury should award
[Chugh] at least nominal damages and then decide to
award him compensatory damages ‘if [he] proves that
he lost profits as a result of the harm that the statement
in question did to his reputation . . . .’ In contrast,
[Chugh] requested the following charge: ‘If you find that
. . . Kalra’s statements were libelous per se, you must
award . . . Chugh general damages for injury to repu-
tation regardless of whether he demonstrated special
damages. In determining the amount of general dam-
ages to award for the injury to [Chugh’s] reputation,
you should consider what reputation [Chugh] had in
the community when the writing was made and all
of the circumstances surrounding the making of the
writing. You may also compensate [Chugh] for damages
that he will likely incur in the future. . . . General and
special damages together comprise what are called
compensatory damages, or damages that compensate
. . . Chugh for his loss.’ . . . [Chugh’s] request to
charge . . . was a correct statement of the law. . . .
Although [Chugh] does not raise the jury charge issue
in his own postverdict briefs, the fact remains that the
charge as given was more favorable to [Kalra] than that
to which he was entitled. . . . Therefore, [Kalra] can-
not prevail on his challenge to the damages award on
libel.’’ (Citations omitted; footnotes omitted.)
It is well established that, ‘‘[b]efore a party is entitled
to a new trial because of an erroneous evidentiary rul-
ing, he or she has the burden of demonstrating that the
error was harmful. . . . In other words, an evidentiary
ruling will result in a new trial only if the ruling was
both wrong and harmful.’’ (Citation omitted; internal
quotation marks omitted.) Klein v. Norwalk Hospital,
299 Conn. 241, 254, 9 A.3d 364 (2010). The same standard
applies to claims of instructional error. That is, ‘‘not
every improper jury instruction requires a new trial
because not every improper instruction is harmful. [W]e
have often stated that before a party is entitled to a new
trial . . . he or she has the burden of demonstrating the
error was harmful. . . . An instructional impropriety
is harmful if it is likely that it affected the verdict.’’
(Internal quotation marks omitted.) Burke v. Mesniaeff,
334 Conn. 100, 121, 220 A.3d 777 (2019).
It is true, as the trial court stated, that Chugh was not
required to prove lost profits to recover compensatory
damages. In a libel per se case, the jury may award
the plaintiff general damages in an amount it deems
sufficient to compensate him for the injury to his reputa-
tion and the mental suffering caused by the defamatory
statement. See, e.g., Battista v. United Illuminating
Co., 10 Conn. App. 486, 492, 523 A.2d 1356 (‘‘When
the defamatory words are actionable per se, the law
conclusively presumes the existence of injury to the
plaintiff’s reputation. He is required neither to plead
nor to prove it. . . . The individual plaintiff is entitled
to recover, as general damages, for the injury to his
reputation and for the humiliation and mental suffering
[that] the libel caused him.’’ (Citation omitted; internal
quotation marks omitted.)), cert. denied, 204 Conn. 802,
525 A.2d 1352 (1987), and cert. denied, 204 Conn. 803,
525 A.2d 1352 (1987); see also Gleason v. Smolinski,
319 Conn. 394, 435, 125 A.3d 920 (2015) (‘‘there is no
dispute that the subject matter of these statements is
defamatory per se because they charge crimes punish-
able by imprisonment and, therefore, the plaintiff is
relieved from the burden of pleading and proving dam-
ages to her reputation’’); Proto v. Bridgeport Herald
Corp., 136 Conn. 557, 572–73, 72 A.2d 820 (1950)
(upholding general damages award of $5150 in libel per
se case and concluding that, ‘‘[i]n view of the seri-
ousness of the calumny published by the defendant and
of the widespread publication given to it throughout
the community in which the plaintiff had been brought
up, had attended school and had engaged in business,
we cannot say that the amount is excessive’’); Miles v.
Perry, 11 Conn. App. 584, 587, 594, 529 A.2d 199 (1987)
(upholding general damages award of $25,000 in libel
per se case).
In order to recover lost profits, however, ‘‘[a] plaintiff
must present sufficiently accurate and complete evi-
dence for the trier of fact to be able to estimate those
profits with reasonable certainty.’’ Beverly Hills Con-
cepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247
Conn. 48, 70, 717 A.2d 724 (1998); see also Simone
Corp. v. Connecticut Light & Power Co., 187 Conn. 487,
495, 446 A.2d 1071 (1982) (‘‘[d]amages for losses of
profits are recoverable only to the extent that the evi-
dence affords a sufficient basis for estimating their
amount in money with reasonable certainty’’ (internal
quotation marks omitted)). This applies equally to a
case of libel per se. See, e.g., DeVito v. Schwartz, 66
Conn. App. 228, 235, 784 A.2d 376 (2001) (‘‘The . . .
plaintiff is entitled to recover, as general damages, for
the injury to his reputation and for the humiliation and
mental suffering which the [defamation] caused him.
. . . To recover special damages, however, the plaintiff
must prove that he suffered economic loss that was
legally caused by the defendant’s defamatory state-
ments, even [when] the defamation is per se. See 3
Restatement (Second), Torts § 622 (1977). General and
special damages together comprise compensatory dam-
ages. See 4 Restatement (Second), Torts, § 904 (1979).’’
(Citation omitted; internal quotation marks omitted.)).
In the present case, it is undisputed that Savoldelli’s
testimony that Chugh sustained lost profits in excess
of $20 million had no basis in fact. Because the jury
was instructed to award special damages only if it found
that Chugh had proven lost profits, and because there
was no other evidence to support the lost profits award,
the damages award cannot stand.
In reaching a contrary conclusion, the trial court cited
State v. Gradzik, 193 Conn. 35, 475 A.2d 269 (1984),
for the proposition that any evidentiary insufficiency
occasioned by that court’s instructional error was harm-
less. Gradzik, however, does not support the trial
court’s ruling. In that case, the defendant was convicted
of burglary in the third degree. Id., 36. At the close of
evidence, the trial court instructed the jury that it could
find the defendant guilty only if it found that ‘‘the defen-
dant had unlawfully entered the building by entering
the cellar.’’ Id., 37–38. On appeal, the defendant claimed
‘‘that the court erred in denying his motion [for a judg-
ment of acquittal] because there was insufficient evi-
dence from which the jury could conclude that he had
entered the cellar. The state counter[ed] that the motion
was properly denied because there was sufficient evi-
dence that the defendant had entered the cellar and,
in the alternative, that the defendant had unlawfully
entered the hatchway which is part of the building.
Because [this court] agree[d] that the defendant’s pres-
ence in the hatchway constituted an unlawful entry into
the building, we [concluded that we did not need to]
decide whether there was sufficient evidence that the
defendant had entered the cellar’’ because it was
‘‘beyond cavil that the hatchway is part of the building
in question’’ and the defendant had ‘‘concede[d] that
he was in the hatchway . . . .’’ Id., 38.
Thus, we concluded in Gradzik that, even if the evi-
dence was insufficient to support a finding that the
defendant had entered the cellar, the error was harm-
less because the evidence was undeniably sufficient to
support a conviction under the correct standard. Id.,38–39. In the present case, however, there is simply no
evidence that Chugh sustained lost profits in the amount
of $4 million—or in any other amount—as a result of
the 2013 press release. Nor are we able to conclude
that the jury would have awarded him $4 million in
general damages but for the instructional impropriety.18
A properly instructed jury might have awarded him
more or less; we simply have no way of knowing. In
light of the foregoing, we cannot conclude that the
instructional error in this case was harmless. Accord-
ingly, the verdict must be set aside as to the libel claim,
and the case remanded for a new trial on that claim.19
In addition, we agree with Kalra that a new hearing on
punitive damages is also required because the record
reveals that a component of the punitive damages award
was a ‘‘success fee’’ for Chugh’s attorney in the amount
of 25 percent of the total compensatory damages award,
which included the $4 million libel award.
The judgment is reversed with respect to the libel
per se claim and the punitive damages award, and the
case is remanded for a new trial on that claim and for
a hearing in damages consistent with this opinion; the
judgment is affirmed in all other respects.
In this opinion the other justices concurred.
1
Two companies controlled by Chugh, Peak XV Capital, LLC (Peak XV),
and ARC Capital, LLC (ARC Capital), were also added as plaintiffs in this
action. The trial court granted the defendants’ motion to dismiss ARC Capital
from the case for lack of standing and to dismiss Peak XV from the case
with respect to every claim except the libel claim. For the sake of clarity,
we refer in this opinion to Chugh, Peak XV, and ARC Capital by name.
2
Trikona Advisers Limited (TAL) was also named as a defendant in this
case. For the sake of clarity, we refer in this opinion to Kalra and TAL
collectively as the defendants and individually by name when appropriate.
3
The trial court later ordered a remittitur in the amount of $451,171.24.
4
Kalra appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2.
5
Rule 13 (a) of the Federal Rules of Civil Procedure provides in relevant
part: ‘‘(1) In General. A pleading must state as a counterclaim any claim
that—at the time of its service—the pleader has against an opposing party
if the claim:
(A) arises out of the transaction or occurrence that is the subject matter
of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot
acquire jurisdiction. . . .’’
6
In Trikona Advisers Ltd. v. Haida Investments Ltd., 318 Conn. 476, 479
n.5, 122 A.3d 242 (2015), this court observed that ‘‘[t]hese parties have filed
several actions in multiple domestic and international courts. For example,
other than the present action, the parties have filed actions in the United
States District Court for the District of Connecticut, the New York Supreme
Court, the Grand Court of the Cayman Islands, India, and Mauritius.’’
7
Evidence adduced at trial reveals that, as of September 27, 2012, twelve
companies comprised what the parties referred to as the ‘‘Trikona Group’’:
TAL in the Cayman Islands, Trikona Capital Advisers, LLC, in Delaware,
Trinity Capital Limited, TSF Advisers Mauritius Limited, Trikona Advisers
Mauritius Limited, Trikona Capital Limited in the Cayman Islands, Trikona
Capital Advisers Limited in the United Kingdom, Sankalp Buildwell PVT
Limited in India, Trikona Capital Mauritius Limited, Trikona Investments
Limited in Mauritius, Trikona Asset Holdings Limited in Mauritius, and TCK
Advisers PVT Limited in India.
8
A copy of the Cayman court’s memorandum of decision was entered
into evidence at the trial in the present case.
9
ARC Capital brought an action in the trial court against Asia Pacific and
Kalra, seeking to domesticate and enforce the Cayman court’s costs order.
The trial court later consolidated that case and the present case for trial.
‘‘In count three of the domestication complaint, [ARC Capital] sought to
pierce the corporate veil of Asia Pacific and to hold Kalra liable for the full
amount of the costs judgment.’’ The jury found in favor of ARC Capital on
count three, but the trial court granted Kalra’s motion to set aside the verdict
on the ground that the evidence was insufficient to support the jury’s finding
that Kalra had used his control of Asia Pacific to commit a fraud or wrong
that proximately caused ARC Capital’s inability to collect what Asia Pacific
owed it under the costs order. ARC Capital did not appeal from that ruling.
10
The operative complaint alleged three additional claims that were dis-
missed or withdrawn before trial: breach of an ancillary settlement agree-
ment, breach of an implied contract to form a joint venture, and breach of
the implied covenant of good faith and fair dealing.
11
See footnote 1 of this opinion.
12
Kalra contends, nonetheless, that, because the Chugh defendants filed
an answer in the federal action several months before filing their motion
for summary judgment, Chugh’s claims in the present case were compulsory
counterclaims in that action. Kalra argues that rule 13 (a) of the Federal
Rules of Civil Procedure requires a compulsory counterclaim to be filed at
the time of the defendant’s responsive ‘‘pleading,’’ regardless of the final
disposition of the case, and that only in the absence of such a pleading is
the defendant relieved of the obligation to file such a counterclaim. See,
e.g., Bluegrass Hosiery, Inc. v. Speizman Industries, Inc., 214 F.3d 770, 772
(6th Cir. 2000) (‘‘Rule 13 (a) . . . only requires a compulsory counterclaim
if the party who desires to assert a claim has served a pleading. . . . In
other words, [r]ule 13 (a) does not apply unless there has been some form
of pleading.’’ (Citation omitted.)) Under Kalra’s reading of rule 13 (a), there-
fore, if the Chugh defendants had moved for summary judgment prior to
filing their answer, Chugh’s claims in the present case would not be barred
because a motion for summary judgment is not a pleading under the Federal
Rules of Civil Procedure. See National Union Fire Ins. Co. of Pittsburgh
v. Jett, supra, 118 F.R.D. 337–38 (‘‘[The plaintiff] never filed a pleading in
the [prior] action. Its motion to dismiss or for summary judgment was not
a pleading as defined in [rule 7 of the Federal Rules of Civil Procedure].
Therefore, its claims were not required to be raised in the [prior] action.’’)
For the reasons previously set forth, we conclude that Kalra’s interpretation
of rule 13 (a) is not only inconsistent with the equitable principles underlying
that rule but is in no way compelled by the case law interpreting it. Indeed,
if Chugh had asserted his claims as counterclaims in the federal action,
there is no reason to think that the District Court would not have allowed
him to withdraw them without prejudice once that court determined that
all of TAL’s claims were barred by collateral estoppel.
13
We note, moreover, that it is not at all clear that rule 13 (a) of the Rules
of Civil Procedure has any applicability to a state court action that was
commenced while the federal court action was still pending, which occurred
here. ‘‘Although it is well established [in the federal courts] that a party is
barred from suing on a claim that should have been pleaded as a compulsory
counterclaim in a prior action, one closely related question remains unset-
tled. What would prevent a defendant who does not want to assert a claim
as a compulsory counterclaim in the opposing party’s suit from bringing an
independent action on that claim while the first action still is pending?
Neither claim preclusion nor waiver or estoppel [is an] appropriate [theory]
for barring a second suit of this type. Preclusion becomes operative only
upon the termination of an action and therefore can have no bearing on
the second action in the situation under discussion since the first suit still
is pending.’’ (Footnote omitted.) 6 C. Wright et al., supra, § 1418, p. 164
‘‘Clearly the language of [r]ule 13 (a) cannot be construed as empowering
the federal court to restrain [state court] proceedings. Thus, if a party asserts
a claim in a state court that should be a compulsory counterclaim in an
already pending federal action, the federal court cannot enjoin the prosecu-
tion of the state proceeding. In this situation the general objective underlying
[r]ule 13 (a) of avoiding multiple suits is outweighed by the express statutory
policy prohibiting federal interference with the functioning of state judicial
systems. The result is that in the absence of voluntary restraint by one of
the courts, both the federal and the state actions will proceed toward judg-
ment and the first to reach that point will serve as the basis for asserting
a defense of claim or issue preclusion in the action that still is being adjudi-
cated.’’ (Footnote omitted.) Id., pp. 174–75.
14
Although acknowledging the substantial body of law holding that the
intent of the parties controls whether a partnership survives incorporation
of the partnership business, Kalra argues that there are numerous courts,
such as the New York Court of Appeals, that have ‘‘never abrogated’’ the
so-called ‘‘categorical rule’’ set forth in Jackson v. Hooper, supra, 76 N.J.
Eq. 599, the 1910 New Jersey case cited in Karanian, that a partnership
cannot be both a partnership and a corporation at the same time. Kalra
cites just one case, D’Orazio v. Mainetti, 24 App. Div. 3d 915, 805 N.Y.S.2d
455 (2005), as an example of a court that ‘‘enforce[ed] the categorical . . .
rule and recognize[d] no exceptions [to it].’’ We disagree that the court in
D’Orazio applied a different standard from any of the other New York cases
cited in this opinion. Although the court in D’Orazio recognized the general
rule that, ‘‘[w]hen parties adopt the corporate form, with the corporate
shield extended over them to protect them against personal liability, they
cease to be partners and have only the rights, duties and obligations of
stockholders’’; (internal quotation marks omitted) id., 916; the court
‘‘agree[d] that the record as a whole contain[ed] sufficient proof to raise a
question of fact as to whether the firm operated as a partnership despite
its legal incorporation, [but it did] not find such proof sufficient to establish,
as a matter of law, that [the parties] indeed continued to operate as a de
facto partnership following the firm’s incorporation . . . .’’ Id., 917. Thus,
the court reversed the trial court’s summary judgment and remanded the
case for a trial to determine the ‘‘factual issue’’ of whether the parties
intended for their partnership to survive the incorporation of their busi-
ness. Id.
15
The trial court instructed the jury that, ‘‘[a]lthough one company cannot
be both a corporation and a partnership, it is possible that there can be a
partnership separate and apart from a corporate entity or group of corporate
entities. . . . Ultimately, the existence of a partnership is a question of the
intention of the parties to be determined by you from all the facts and
circumstances.’’
16
During closing arguments, Kalra’s counsel argued: ‘‘As further evidence
[that the partnership] didn’t exist, [Chugh] testified that he never registered
the partnership here in Connecticut where he and . . . Kalra lived, that,
when he filed tax returns, he never disclosed the partnership to the Internal
Revenue Service. Remember, partnerships are about profits, and profits are
taxable. He never disclosed the partnership to any department of the [United
States] Treasury. He never disclosed the partnership to any regulator like
the Securities and Exchange Commission here in the United States. . . .
Why is this important? It is important because it is clear evidence that the
partnership did not exist.’’ Counsel further argued: ‘‘Ladies and gentlemen,
there is either a partnership or there is not. . . . And we know certainly,
it was never written. As a matter of fact, there isn’t even a memorandum
or a note, nothing, [no] writing of any kind that was submitted by [Chugh]
that you could say, here’s proof, here’s proof there was a partnership.’’
17
Specifically, Chugh testified that, ‘‘in early 2004, we were having . . .
lunch at a Chinese restaurant, and, at that time, I proposed that [we] partner
up for this Indian real estate opportunity. We agreed that it was going to
be a 50/50 partnership. In my mind at [the] time, you know, it was a pretty
simple relationship. We trusted each other. We said everything is going to
be equal . . . . And we’re going to make decisions . . . completely equally
on every single thing. . . . So, it was a 50/50 partnership in that every
single decision that we made, whether it was any spending that we did, any
employees that we hired, any offices that we opened, any strategic decisions
that we made, any investments that we made, every single decision was
unanimous, both of [us] checked with each other, and we agreed on it. If
there was some disagreement between us, one of us convinced the other
person . . . to go ahead or not to go ahead with [a] decision. But pretty
much everything was unanimously decided between the two of us.’’
18
We do not doubt that a properly instructed jury would have awarded
Chugh general damages given the jury’s finding that Kalra acted with malice
in publishing the 2013 press release and its award of punitive damages in
connection with the libel claim. Indeed, it is clear that the jury struggled
with the limitations imposed on it by the trial court’s instructions with
respect to the damages award, i.e., that special damages could be awarded
only if the jury found that Chugh had proven lost profits—which he clearly
had not proven—but, otherwise, the jury could award only nominal damages.
This is evident in the jury’s question asking the court whether there was
an upper limit on the amount of nominal damages it could award. What we
cannot determine, however, without resort to conjecture, is the amount of
general damages that the jury would have awarded but for the trial court’s
error. It is for this reason that a new trial on the libel claim is required.
19
We note that Kalra also sought plain error review of the trial court’s
instruction to the jury, in accordance with Kalra’s request to charge, that
Kalra bore the burden of proving the truth of the matter asserted in the
2013 press release. Because we conclude that Kalra is entitled to a new trial
due to the court’s error relative to the damages instruction, we need not
decide whether he is entitled to plain error review of this additional instruc-
tional error claim.