National Waste Associates, LLC v. Scharf , 183 Conn. App. 734 ( 2018 )

***********************************************
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.
***********************************************
NATIONAL WASTE ASSOCIATES, LLC v. DANIELLE
SCHARF ET AL.
(AC 39617)
Keller, Elgo and Bear, Js.
Syllabus
The plaintiff brought this action against the defendants, its former employ-
ees, S and D, and its business competitors, W Co. and O Co., for, inter alia,
breach of contract, unjust enrichment and violations of the Connecticut
Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) and the Connecti-
cut Uniform Trade Secrets Act (CUTSA) (§ 35-50 et seq.) in connection
with their alleged improper use of certain confidential information and
breach of contractual obligations. S, who had worked in the plaintiff’s
sales department, had signed a confidentiality and noncompetition
agreement in which he agreed, inter alia, not to disclose confidential
information or trade secrets of the plaintiff and not to solicit the plain-
tiff’s customers or prospective customers for two years following the
termination of his employment. Upon the termination of his employment,
S signed a general release with the plaintiff, under which he agreed to
abide by the terms of the agreement, and, in return, the plaintiff paid
S $50,000. Thereafter, S worked briefly for O Co. and then was employed
by W Co. During that time, S solicited business from a number of the
plaintiff’s customers, including G Co., which awarded a contract to W
Co. following a reverse auction in which the plaintiff had participated.
D also was employed by the plaintiff and thereafter was hired by W Co.
Pursuant to his employment with the plaintiff, D had signed a confidenti-
ality and noncompetition agreement. The trial court granted in part the
motion for summary judgment filed by S, D and W Co., concluding that
there was no genuine issue of material fact that the nonsolicitation
provision in the agreements with S and D regarding prospective custom-
ers was unreasonable and that the provision was enforceable only as
to prospective customers that S and D had solicited on behalf of the
plaintiff during the six months prior to their departures from the plaintiff.
The court also concluded that, as a matter of law, the plaintiff’s CUTPA
claims were preempted by CUTSA unless the CUTPA claim was not
based on a misappropriation of a trade secret. Following a trial, the
court rendered judgment in part in favor of the defendants. The court
concluded that S had breached his agreement with the plaintiff by solicit-
ing its customers and by successfully securing the G Co. contract for
W Co. It awarded the plaintiff $50,000 in restitution, the amount of
consideration that the plaintiff had paid S pursuant to the general release.
The court, however, concluded that S was not liable under any other
theory alleged by the plaintiff. In addition, the court determined that
because S’s agreement had expired before he was employed by W Co.,
it was unreasonable to enforce the agreement against W Co. and that
the evidence did not support a finding of liability against D or O Co.
On the plaintiff’s appeal to this court, held:
1. The plaintiff’s claim that the trial court improperly concluded that its
unjust enrichment claims against W Co. and O Co. were barred by the
existence of the agreement between the plaintiff and S was unavailing:
the plaintiff mischaracterized that court’s holding and confused the
court’s findings as to S with those it made as to W Co. and O Co., as
the plaintiff’s claim was predicated on two sentences in the section of
the court’s memorandum decision in which the court, while analyzing
the plaintiff’s claims against S, determined that the plaintiff could not
recover against S in unjust enrichment for breaching the agreement,
which was not a sufficient basis for this court to conclude that the trial
court barred the subject claims against W Co. and O Co. due to the
existence of the agreement, and the trial court, in addressing the plain-
tiff’s claims against W Co. in a separate section of its decision, character-
ized W Co. as ‘‘innocent’’ and articulated its reasons for finding that
enforcement of the agreement against W Co. would be unreasonable
under any theory, and in doing so, the court applied an analysis consis-
tent with the broad equitable principles inherent in the doctrine of unjust
enrichment; moreover, there was no indication in the record that the
court failed to consider all the facts relevant to an unjust enrichment
claim, nor did the record indicate that the court improperly concluded
that the plaintiff’s unjust enrichment claim against O Co. was barred
by the existence of the agreement, and the broad language employed
by the court to address the multiple claims brought against O Co. encom-
passed an examination of the circumstances and conduct of the parties
based on the principles of equity and good conscience on which the
doctrine of unjust enrichment is based.
2. The trial court’s finding that the nonsolicitation provision in the plaintiff’s
employment agreements with S and D was unenforceable as to prospec-
tive customers was not clearly erroneous: contrary to the plaintiff’s
contention that the court improperly broadened the scope of its summary
judgment ruling regarding prospective customers by erroneously finding
in its decision after trial that the nonsolicitation provision was unenforce-
able as to any of the plaintiff’s prospective customers, the record demon-
strated that the court did not apply a blanket rule in its decision but,
instead, examined whether the plaintiff had proved causation and dam-
ages with respect to any improper solicitation of prospective customers
and concluded that it had not; moreover, the court mentioned the
enforceability of the nonsolicitation provision only in the context of
the plaintiff’s claims against O Co. as to a certain known prospective
customer, S Co., and the record contained evidence that substantiated
the court’s finding that S was unaware that S Co. was a prospective
customer of the plaintiff, and, thus, that the provision was unenforceable
as to S Co.
3. The plaintiff could not prevail on its claim that the trial court improperly
failed to address its CUTPA claims that arose out of the misappropriation
of trade secrets on the basis of its erroneous conclusion that CUTSA
bars such claims, the trial court having found that the plaintiff did
not lose any customers or prospective customers as a result of any
misappropriated trade secret, and the plaintiff having failed to challenge
that factual finding; moreover, the plaintiff’s claim that the trial court
improperly failed to consider its CUTPA claims that were unrelated to the
misappropriation of trade secrets was unavailing, as there was nothing
in the court’s decision to suggest that it failed to consider those claims,
the court determined that the plaintiff failed to prove causation in that
it suffered no ascertainable loss as a result of S’s actions, and the court’s
finding that the plaintiff could not prevail on its CUTPA claims was
supported by the evidence and was not clearly erroneous.
Argued January 31—officially released July 31, 2018
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford and transferred
to the Complex Litigation Docket, where the court,
Dubay, J., granted the plaintiff’s motion to cite in
Omega Waste Management, Inc., as a party defendant;
thereafter, the defendant Omega Waste Management,
Inc., was defaulted for failure to appear; subsequently,
the court, Devine, J., granted in part the motion for
summary judgment filed by the named defendant et al.;
thereafter, the matter was tried to the court, Mou-
kawsher, J.; judgment in part for the defendants, from
which the plaintiff appealed to this court. Affirmed.
Richard F. Wareing, with whom were Anthony J.
Natale and Angela M. Vickery, for the appellant
(plaintiff).
Douglas P. Needham, for the appellee (defendant
Carl Slusarczyk).
Jeffrey F. Allen, pro hac vice, with whom were Calvin
K. Woo and, on the brief, Edward P. Hourihan, Jr., pro
hac vice, and Mary P. Moore, pro hac vice, for the
appellees (defendant Danielle Scharf et al.).
Opinion
ELGO, J. The plaintiff, National Waste Associates,
LLC, appeals from the judgment of the trial court ren-
dered, in part, in favor of the defendants, Danielle
Scharf, Carl Slusarczyk, Waste Harmonics, LLC (Waste
Harmonics), and Omega Waste Management, Inc.
(Omega).1 On appeal, the plaintiff claims that the court
improperly concluded that (1) the plaintiff could not
prevail on its unjust enrichment claims, (2) a nonsolici-
tation provision in agreements between the plaintiff
and its former employees was unenforceable as to its
prospective customers, and (3) General Statutes § 35-
57 (a) bars its claims under the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq. We affirm the judgment of the trial court.
The plaintiff commenced this action in August, 2012.
The following facts, as found by the trial court or as
stipulated to by the parties in their joint trial manage-
ment report, are relevant to this appeal. The plaintiff,
Waste Harmonics, and Omega are waste management
brokers that provide waste removal and recycling ser-
vices for their customers. Slusarczyk began working in
the plaintiff’s sales department in January, 2000. In 2004,
Slusarczyk signed a confidentiality and noncompetition
agreement (2004 agreement) in which he agreed, inter
alia, not to disclose confidential information or trade
secrets of the plaintiff, not to solicit the plaintiff’s cus-
tomers for two years following the termination of his
employment or during the pendency of any violation,
and not to disparage the plaintiff. In February, 2010,
the plaintiff terminated Slusarczyk’s employment. Slu-
sarczyk at that time signed a general release with the
plaintiff, under which he agreed to abide by the terms
of the 2004 agreement, and in return, the plaintiff paid
Slusarczyk $50,000.2 At the time of Slusarczyk’s depar-
ture, the plaintiff’s client list included Guitar Center,
Steak and Shake, Safelite, Daltile, and PetSmart.
In 2011, Slusarczyk worked briefly for Omega. During
that time, Slusarczyk solicited Guitar Center on behalf
of Omega and repeatedly contacted Guitar Center,
Steak and Shake, Safelite, and Daltile. Following the
commencement of this action, Slusarczyk deleted
e-mails and destroyed his computer. The court inferred
from those actions that the e-mails contained disparag-
ing comments about the plaintiff. In May, 2012, Slusarc-
zyk began working for Waste Harmonics.
Scharf was employed by the plaintiff from 2007 to
2011. Like Slusarczyk, Scharf signed a confidentiality
and noncompetition agreement with the plaintiff. In
June, 2012, Scharf was hired by Waste Harmonics.
After its contract with the plaintiff expired on June
30, 2012, Guitar Center conducted a reverse auction to
select its next waste broker. In the auction, the plain-
tiff’s bid was the highest cost bid, while Waste Harmon-
ics was the third lowest bid. In its May 9, 2016
memorandum of decision, the court found that Guitar
Center ultimately awarded the contract to Waste Har-
monics as a result of the professional relationship
between Slusarczyk and a Guitar Center employee.
As to the plaintiff’s other former customers, the court
found no credible evidence that Slusarczyk’s solicita-
tions resulted in the nonrenewal of their contracts with
the plaintiff. More specifically, the court found that
Safelite chose to hire haulers directly rather than use
a waste broker. Waste Management, the largest waste
broker, offered Daltile a deal on landfilling, which Dal-
tile accepted. PetSmart did not renew its contract with
the plaintiff, preferring nontraditional recycling ser-
vices offered by Waste Management. As to Steak and
Shake, the court found that the plaintiff offered no
evidence as to why its contract was not renewed.
Following the commencement of this action, the par-
ties entered into a stipulated temporary injunction order
on October 12, 2012, with respect to the allegedly
improper use of certain confidential information and
breach of contractual obligations by the defendants.
On July 16, 2015, the plaintiff filed a fourth amended
complaint that alleged breach of contract against Slu-
sarczyk and Scharf; unjust enrichment against Waste
Harmonics and Omega; tortious interference against
Slusarczyk, Scharf, Waste Harmonics, and Omega; civil
conspiracy against Slusarczyk and Omega; civil conspir-
acy against Slusarczyk, Scharf, and Waste Harmonics;
violations of the Connecticut Uniform Trade Secrets
Act (CUTSA), General Statutes § 35-50 et seq., against
Slusarczyk, Scharf, and Waste Harmonics; and viola-
tions of CUTPA against Slusarczyk, Scharf, Waste Har-
monics, and Omega. On August 28, 2015, Scharf,
Slusarczyk, Waste Harmonics filed a motion for partial
summary judgment, which the court granted in part on
October, 29, 2015.
A court trial was held over the course of eleven days
in the spring of 2016. On May 9, 2016, the court issued
its memorandum of decision. The court concluded that
Slusarczyk breached his 2004 agreement with the plain-
tiff by soliciting its customers and by successfully secur-
ing the Guitar Center contract for Waste Harmonics.
The court determined that the proper measure of dam-
ages for that breach was restitution of $50,000, the
amount of consideration that the plaintiff paid Slusarc-
zyk in order to keep his promise under the agreement.3
The court nonetheless concluded that Slusarczyk was
not liable under any other theory alleged by the plaintiff.
In addition, the court found that although Slusarczyk
solicited Steak and Shake, Safelite, Daltile, and PetSm-
art, he not only was unsuccessful in those efforts, but
played no role in the plaintiff’s failure to retain them
as customers. The court found that Slusarczyk did not
use any of the plaintiff’s confidential information to
secure Murphy Oil and Pilot Travel as clients for Waste
Harmonics, who also were prospective clients of the
plaintiff. As the court noted in its memorandum of deci-
sion, the plaintiff’s profit margins were high and uncom-
petitive. The court also determined that because the
‘‘objectively identifiable period of Slusarczyk’s nonso-
licitation agreement expired before he went to work
for Waste Harmonics,’’ it was unreasonable to enforce
the 2004 agreement against Waste Harmonics. The court
further found that the evidence did not support a finding
of liability against Scharf or Omega on any count. This
appeal followed.
I
The plaintiff first claims that the court improperly
found that its unjust enrichment claims against Waste
Harmonics and Omega were barred by the existence
of the 2004 agreement between the plaintiff and Slusarc-
zyk. Specifically, the plaintiff claims that a contract with
a third party does not bar a claim of unjust enrichment
against another party. Although the defendants do not
dispute that legal principle, they contend that the plain-
tiff mischaracterizes the court’s holding and confuses
the court’s findings made as to Slusarczyk with the
findings it made as to Waste Harmonics and Omega.
We agree with the defendants.
It is well established that ‘‘[u]njust enrichment is a
very broad and flexible equitable doctrine that has as
its basis the principle that it is contrary to equity and
good conscience for a defendant to retain a benefit that
has come to him at the expense of the plaintiff. . . . All
the facts of each case must be examined to determine
whether the circumstances render it just or unjust, equi-
table or inequitable, conscionable or unconscionable,
to apply the doctrine.’’ (Citations omitted.) Gagne v.
Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001). ‘‘Plain-
tiffs seeking recovery for unjust enrichment must prove
(1) that the defendants were benefited, (2) that the
defendants unjustly did not pay the plaintiffs for the
benefits, and (3) that the failure of payment was to the
plaintiffs’ detriment. . . . Our review of the trial
court’s conclusion that the defendant was unjustly
enriched is deferential. The court’s determinations of
whether a particular failure to pay was unjust and
whether the defendant was benefited are essentially
factual findings . . . that are subject only to a limited
scope of review on appeal. . . . Those findings must
stand, therefore, unless they are clearly erroneous or
involve an abuse of discretion. . . . This limited scope
of review is consistent with the general proposition that
equitable determinations that depend on the balancing
of many factors are committed to the sound discretion
of the trial court.’’ (Citations omitted; internal quotation
marks omitted.) New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 433, 451–52,
970 A.2d 592 (2009).
The plaintiff’s assertion that the court improperly
barred its unjust enrichment claims as to Waste Har-
monics and Omega is predicated on two sentences of
the court’s memorandum of decision, in which the court
was analyzing the plaintiff’s claims against Slusarczyk.
The court stated: ‘‘[The plaintiff’s] unjust enrichment
claim[s] cannot hand Guitar Center’s money to [the
plaintiff] either. The misconduct at issue is covered by
the contract, and as the Supreme Court affirmed in 2009
in New Hartford v. Connecticut Resources Recovery
Authority, [supra, 291 Conn. 455], an action for unjust
enrichment cannot lie in the face of an express con-
tract.’’ (Internal quotation marks omitted.) On the basis
of those statements alone, we cannot conclude that the
court barred the plaintiff’s unjust enrichment claims
against Omega and Waste Harmonics due to the exis-
tence of Slusarczyk’s 2004 agreement with the plaintiff.
As we read those statements, the court merely deter-
mined that the plaintiff could not recover against Slu-
sarczyk in unjust enrichment for breaching the
agreement with the plaintiff as a result of his solicitation
of Guitar Center. Indeed, those statements were made
in a section of the court’s decision entitled ‘‘He [Slusarc-
zyk] won Guitar Center for Waste Harmonics by break-
ing his promise,’’ which section was devoted to
determining the amount of damages the plaintiff was
entitled to as a result of that breach. In this section,
the court found that the plaintiff’s contract with Guitar
Center expired in 2012 and that Slusarczyk solicited
and secured the Guitar Center contract for Waste Har-
monics based on his rapport with a Guitar Center
employee.
Furthermore, the court addressed all of the plaintiff’s
claims against Waste Harmonics later in its memoran-
dum of decision in a separate section entitled ‘‘Waste
Harmonics is Innocent.’’ In that section, the court found
that it would be unreasonable to hold Waste Harmonics
liable for Slusarczyk’s breach of contract when ‘‘[t]he
objectively identifiable period of Slusarczyk’s nonsolici-
tation agreement expired before he went to work for
Waste Harmonics.’’ The court also found that ‘‘[i]t is
not reasonable to hold an employer responsible for
something it did not know, with reference to an
agreement it did not sign, about which it would be ill-
equipped to judge.’’ Because the court clearly found
that it was not reasonable to enforce the 2004 agreement
against Waste Harmonics ‘‘under any theory—conspir-
acy, agency or anything else,’’ we will not presume
that the court failed to consider the plaintiff’s unjust
enrichment claim against Waste Harmonics.
By characterizing Waste Harmonics as ‘‘innocent’’
and articulating its reasons for finding that enforcement
of the 2004 agreement against Waste Harmonics would
not be reasonable, the court applied an analysis consis-
tent with the broad equitable principles inherent in the
doctrine of unjust enrichment. ‘‘[A] right of recovery
under the doctrine of unjust enrichment is essentially
equitable, its basis being that in a given situation it is
contrary to equity and good conscience for one to retain
a benefit which has come to him at the expense of
another. . . . With no other test than what, under a
given set of circumstances, is just or unjust, equitable
or inequitable, conscionable or unconscionable, it
becomes necessary in any case where the benefit of
the doctrine is claimed, to examine the circumstances
and the conduct of the parties and apply this standard.’’
(Citations omitted; internal quotation marks omitted.)
Gagne v. Vaccaro, supra, 255 Conn. 408–409.
Even if the court addressed the plaintiff’s unjust
enrichment claim against Waste Harmonics on the mer-
its, the plaintiff alternatively argues that the court com-
mitted reversible error by failing to consider all the
facts relevant to an unjust enrichment claim and only
considered Waste Harmonic’s innocence. There is no
indication in the record before us, however, that the
court did so. In its memorandum of decision, the court
specifically stated that it considered all of the disputed
evidence. In this regard, we are mindful that ‘‘our appel-
late 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 anal-
ysis of the law and the facts.’’ (Citations omitted; inter-
nal quotation marks omitted.) Brett Stone Painting &
Maintenance, LLC v. New England Bank, 143 Conn.
App. 671, 681, 72 A.3d 1121 (2013).
In addition, we note that the court addressed the
plaintiff’s claims against Omega in a section of its mem-
orandum of decision entitled ‘‘Omega: Damage cannot
be assessed where it does not exist.’’ In that section,
the court concluded that ‘‘[t]o the extent [the plaintiff]
claims Omega profited from Slusarczyk’s wrongdoing,
no damage from the wrongdoing can be calculated if
there was no wrongdoing. . . . [The plaintiff’s] claims
against Omega derive solely from Slusarczyk’s wrongs,
so there can hardly be damages assessed where none
was caused.’’ Although unjust enrichment is not rooted
on a theory of wrongdoing, the broad language
employed by the court to address the multiple claims
brought against Omega encompasses an examination
of the circumstances and conduct of the parties based
on the principles of equity and good conscience on
which the doctrine of unjust enrichment is based. See
Gagne v. Vaccaro, supra, 255 Conn. 408–409. There is
no indication from the court’s decision, either in the
section discussing Omega or in the section regarding
Slusarczyk that contains the language at issue in this
claim, that the court improperly concluded that the
plaintiff’s unjust enrichment claim against Omega was
barred by the existence of the 2004 agreement between
the plaintiff and Slusarczyk. Accordingly, the plaintiff’s
claim fails.
II
The plaintiff next claims that the court erroneously
concluded that the nonsolicitation provision in its
employment agreements with Slusarczyk and Scharf
was unenforceable as to prospective customers (pros-
pects). We disagree.
Connecticut law recognizes that ‘‘[b]y definition, cov-
enants by employees not to compete with their employ-
ers after termination of their employment restrain trade
in a free market. . . . Consequently, these covenants
may be against public policy, and, thus, are enforceable
only if their imposed restraint is reasonable, an assess-
ment that depends upon the competing needs of the
parties as well as the needs of the public.’’ (Citation
omitted.) Deming v. Nationwide Mutual Ins. Co., 279
Conn. 745, 761, 905 A.2d 623 (2006). Analysis of the
validity and enforceability of such covenants entails a
fact-specific inquiry. As our Supreme Court has
explained, ‘‘[t]he five factors to be considered in evalu-
ating the reasonableness of a restrictive covenant ancil-
lary to an employment agreement are: (1) the length of
time the restriction operates; (2) the geographical area
covered; (3) the fairness of the protection accorded to
the employer; (4) the extent of the restraint on the
employee’s opportunity to pursue his occupation; and
(5) the extent of interference with the public’s inter-
ests.’’ Robert S. Weiss & Associates, Inc. v. Wiederlight,
208 Conn. 525, 529 n.2, 546 A.2d 216 (1988).
The parties submit, and we agree, that the clearly
erroneous standard of review governs the finding of
the trial court as to the enforceability of a restrictive
covenant in an employment agreement. Pursuant to that
standard, ‘‘[a] finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 221, 919
A.2d 421 (2007).
The provision in the plaintiff’s employment
agreements with Slusarczyk and Scharf is entitled ‘‘Non-
solicitation of Customers/Prospects’’ and provides that
‘‘[f]or a period of two (2) years following the date of
separation of employment from [the plaintiff] (for any
reason), Employee shall not directly or indirectly solicit
or otherwise seek to perform any competitive business
with, or engage in any competitive business with, any
clients or customers to whom [the plaintiff] has at any
time prior to the date of Employee’s separation of
employment rendered services or sold products, or to
whom [the plaintiff] has attempted to sell services or
products during the six (6) months prior to Employee’s
separation of employment with [the plaintiff].’’
In their memorandum of law in support of their
motion for summary judgment, Slusarczyk, Scharf, and
Waste Harmonics argued that Slusarczyk and Scharf
were entitled to judgment as a matter of law on the
plaintiff’s breach of contract claims because the nonso-
licitation provision in Slusarczyk’s and Scharf’s employ-
ment agreements was unreasonably overbroad and
provided no clarity as to which of the thousands of the
plaintiff’s prospects they were prohibited from solicit-
ing. In its October 29, 2015 memorandum of decision on
the motion for summary judgment, the court concluded
that there was no genuine issue of material fact that
the ‘‘very broad restriction’’ on prospects of the plaintiff
was unreasonable. It stated: ‘‘Six months is not per se
unreasonable, but without either defining prospects or
applying it only to those the employee knows about,
this provision sets itself up to be crushing. How can an
employee obey such a restriction without knowing who
the prospects are? Nothing about what has happened
here changes that the language is subject to the kind
of abuse that would result if an ex-employee can be
charged for soliciting the recipients of an e-mail blast
or other broad sweeping solicitation.’’ In granting the
motion for summary judgment in part, the court deter-
mined that it ‘‘will only enforce the restriction on busi-
ness prospects to the extent that it relates to employer
attempts to sell services or products through the
employee covered by the restriction.’’
Approximately six months later, the court, in in its
May 9, 2016 memorandum of decision, made an isolated
reference to the unreasonableness of the restriction
regarding prospects. In a section of the decision entitled
‘‘Omega: Damage cannot be assessed where it does not
exist,’’ the court remarked that ‘‘[w]here [the plaintiff]
claims Omega won Sonic’s business by virtue of Slusarc-
zyk breaching his nonsolicitation agreement, it is fatal
to any damage claim that there was no such breach
since Sonic was a mere prospect and the agreement is
unenforceable as to prospects.’’
On appeal, the plaintiff argues that the court’s finding
in its May 9, 2016 decision that the nonsolicitation provi-
sion was unenforceable as to prospects was clearly
erroneous because the evidence at trial demonstrated
that the restriction was reasonable and enforceable.
The plaintiff also argues that the court ignored its ruling
on the motion for summary judgment in which it held
that the nonsolicitation provision was enforceable as
to the plaintiff’s prospects solicited by Slusarczyk and
Scharf on behalf of the plaintiff during the six months
prior to their departures from the plaintiff.
In its ruling on the motion for summary judgment, the
court limited the enforceability of the nonsolicitation
provision to a narrow range of prospects, specifically
those to which Slusarczyk and Scharf attempted to sell
products or services during their employ with the plain-
tiff within six months of departure. Relying on this
determination, the plaintiff argues that the court
improperly broadened the scope of its summary judg-
ment ruling by erroneously finding in its May 9, 2016
decision that the nonsolicitation provision was unen-
forceable as to any of the plaintiff’s prospects.
The plaintiff cannot prevail on its claim that the court
abandoned its summary judgment ruling and was pre-
cluded from considering any of its claims relating to
the wrongful solicitation of prospects. Contrary to the
plaintiff’s contention, the record demonstrates that the
court did not apply a blanket rule in its May 9, 2016
decision that the provision was unenforceable as to
prospects. Rather, in its decision, the court examined
whether the plaintiff proved causation and damages
with respect to any improper solicitation of the plain-
tiff’s prospects and concluded that it had not. The court
found that Murphy Oil and Pilot Travel were ‘‘only pros-
pects’’ and that there was no evidence that Slusarczyk
used any secret information about them to win their
business for Waste Harmonics. The court determined
that it was not a secret that Murphy Oil’s contract with
the plaintiff had ended and that the plaintiff only had
an 8.33 percent chance of winning the accounts. The
court also determined that ‘‘[t]here is also no evidence
that any misappropriated trade secret played any role
in Slusarczyk’s approaches to Music & Arts and Sonic.’’
The court further concluded that ‘‘[n]ot much
changes by looking at [the plaintiff’s] claims in tort,
trade and trade secret violations. . . . [N]othing
changes about any [prospects], because [the plaintiff]
has not shown that any misconduct cost it any specific
customer.’’ The court also noted that an examination of
the plaintiff’s ‘‘other weakly presented prospects yields
nothing further. Just because [the plaintiff] has strewn a
variety of additional company names across the record
does not mean they all merit individual scrutiny. Suffice
it to say that the court has reviewed them against the
range of claims [the plaintiff] has brought, but finds no
support for the combination of factors that would have
to be proved for it to recover under any theory . . . .’’
The court mentioned the enforceability of the nonso-
licitation provision only in the context of the plaintiff’s
claims against Omega as to the prospect known as
Sonic. The court stated that ‘‘it is fatal to any damage
claim that there was no such breach since Sonic was
a mere prospect and the agreement is unenforceable
as to prospects.’’ The court provided no factual back-
ground involving Sonic and did not state whether Sonic
was a prospect of which Slusarczyk had knowledge and
had solicited while he was employed by the plaintiff or
whether Sonic was a prospect about which Slusarczyk
was unaware and was merely part of a broad sweeping
solicitation. When read in the context of the entire deci-
sion, in which the court examined the broad range of
claims brought regarding various prospects and ulti-
mately determined that the plaintiff could not prevail
under any theory, and mindful that we do not presume
error on the part of the trial court; see DeNunzio v.
DeNunzio, 320 Conn. 178, 197, 128 A.3d 901 (2016); it
is apparent that the court, albeit unartfully, stated that
Slusarczyk was unaware that Sonic was a prospect of
the plaintiff, and, therefore, the provision was unen-
forceable regarding Sonic. Although conflicting evi-
dence was presented at trial, the record contains
evidence that substantiates that finding, as Slusarczyk
testified that during his employment with the plaintiff,
Sonic was not a customer and he had no knowledge of
whether Sonic was a prospect. In light of the foregoing,
we conclude that the court’s finding that the nonsolicita-
tion provision in the plaintiff’s employment agreements
with Slusarczyk and Scharf was unenforceable as to
prospects was not clearly erroneous.
III
As a final matter, the plaintiff claims that the court
failed to address its CUTPA claims because it improp-
erly concluded that § 35-57 (a) bars such claims. We
are not persuaded.
General Statutes § 42-110g (a) provides in relevant
part: ‘‘Any person who suffers any ascertainable loss
of money or property . . . as a result of the use or
employment of a method, act or practice prohibited by
section 42-110b, may bring an action . . . to recover
actual damages. . . . The court may, in its discretion,
award punitive damages and may provide such equita-
ble relief as it deems necessary or proper.’’ ‘‘The ascer-
tainable loss requirement is a threshold barrier [that]
limits the class of persons who may bring a CUTPA
action seeking either actual damages or equitable relief.
. . . Thus, to be entitled to any relief under CUTPA, a
plaintiff must first prove that he has suffered an ascer-
tainable loss due to a CUTPA violation.’’ (Internal quota-
tion marks omitted.) Neighborhood Builders, Inc. v.
Madison, 294 Conn. 651, 657, 986 A.2d 278 (2010).
‘‘It is well settled that in determining whether a prac-
tice violates CUTPA we have adopted the criteria set
out in the cigarette rule by the federal trade commission
for determining when a practice is unfair: (1) [W]hether
the practice, without necessarily having been pre-
viously considered unlawful, offends public policy as
it has been established by statutes, the common law,
or otherwise—in other words, it is within at least the
penumbra of some common law, statutory, or other
established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; (3)
whether it causes substantial injury to consumers,
[competitors or other businesspersons] . . . . All
three criteria do not need to be satisfied to support a
finding of unfairness. A practice may be unfair because
of the degree to which it meets one of the criteria or
because to a lesser extent it meets all three.’’ (Citation
omitted; internal quotation marks omitted.) IN Energy
Solutions, Inc. v. Realgy, LLC, 114 Conn. App. 262,
273–74, 969 A.2d 807 (2009). ‘‘To the extent that [an
appellant] is challenging the trial court’s interpretation
of CUTPA, our review is plenary. . . . [W]e review the
trial court’s factual findings under a clearly erroneous
standard.’’ (Internal quotation marks omitted.) Updike,
Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 656,
850 A.2d 145 (2004).
In its complaint, the plaintiff claimed that Slusarczyk
and Scharf violated CUTPA by misappropriating the
plaintiff’s trade secrets and using confidential informa-
tion to solicit its customers and prospects to do busi-
ness with Omega and/or Waste Harmonics. The plaintiff
also alleged that Waste Harmonics and Omega violated
CUTPA by misappropriating the plaintiff’s trade secrets
and soliciting the plaintiff’s actual customers and pros-
pects in furtherance of financial gain and profits. In
its October 29, 2015 memorandum of decision on the
defendants’ motion for summary judgment, the court
concluded, as a matter of law, that the plaintiff’s CUTPA
claims were preempted by CUTSA unless the CUTPA
claim was not based on a misappropriation of a trade
secret. Following trial, the court, in its May 9, 2016
memorandum of decision, stated that ‘‘[a]s previously
held, nothing about [trade] secrets can be brought out-
side the contract and [CUTSA] because . . . § 35-57
(a) . . . preempts everything but the contract claim.’’
On appeal, the plaintiff argues that the court erred
in holding that CUTSA bars its CUTPA claims that arise
out of the misuse or misappropriation of trade secrets.
The plaintiff contends that § 35-57 (a) does not preempt
CUTPA claims arising out of the same facts. It also
argues that the court failed to consider its CUTPA
claims, even those unrelated to trade secrets, such as
its claim that Slusarczyk and Scharf violated their post-
termination obligations by systematically soliciting the
plaintiff’s customers and prospects.
We need not address the issue of whether a CUTPA
claim based on misappropriation of a trade secret con-
flicts with CUTSA4 and, therefore, is superseded by it.
The court addressed the issue of misappropriation of
trade secrets and found that the plaintiff did not lose
any customers or prospects as a result of any misappro-
priated trade secret.5 The plaintiff does not challenge
that factual finding. Specifically, the court found that
Slusarczyk secured the Guitar Center contract for
Waste Harmonics but that he did not misappropriate
any trade secrets in order to do so. The court deter-
mined that, prior to Slusarczyk’s departure from the
plaintiff, Elena Boone, a Guitar Center employee, knew
that the plaintiff was concealing its markup, and thus
only that information could have informed Slusarczyk’s
solicitation of Guitar Center. The court also found that
even if Slusarczyk misappropriated a trade secret when
it informed Safelite via e-mail that it could obtain a 30
percent savings, the plaintiff did not lose this customer
as a result of Slusarczyk, and, in any event, neither
Omega nor Waste Harmonics obtained Safelite as a
customer. Regarding prospects, the court found that
the plaintiff had not shown that ‘‘any misconduct cost
it any specific customer’’ nor has it ‘‘shown that any
trade secret information was used to win any prospect
. . . .’’ The court also found that there was no evidence
that Slusarczyk used any misappropriated trade secret
in his dealings with Music & Arts, Sonic, Murphy Oil
or Pilot Travel.
The plaintiff argues that the court failed to consider
its CUTPA claims that Slusarczyk and Scharf violated
CUTPA by systematically violating posttermination
obligations. There is nothing in the court’s decision to
suggest that the court failed to consider the plaintiff’s
CUTPA claims that were unrelated to trade secrets. In
broad strokes, the court rejected a multitude of claims
raised by the plaintiff and concluded that most of the
damages the plaintiff sought were ‘‘unreasonable,’’
because the plaintiff had not shown that it had lost any
customer or prospect as a result of Slusarczyk’s actions.
The court found that the only damages that the plaintiff
was entitled to was ‘‘limited relief’’ in the form of $50,000
in restitution for Slusarczyk’s breach of contract and
concluded that ‘‘not much changes’’ when the plaintiff’s
other claims, sounding in trade secret violations,
CUTPA violations, and tort are examined. The court
stated: ‘‘First, nothing changes about the customers [the
plaintiff] lost because it has not proved that, but for any
wrong, that it would still have any of these customers.
Second, nothing changes about any [prospects],
because [the plaintiff] has not shown that any miscon-
duct cost it any specific customer.’’ The court found
that the plaintiff ‘‘did not lose much of anything to
Waste Harmonics other than a valuable salesman.’’
Although the court discussed many claims only in gen-
eral terms, at its essence, the court found that the plain-
tiff did not prove damages beyond the $50,000 in
restitution and reasonable attorney’s fees. Essentially,
the court determined that the plaintiff failed to prove
causation in that it suffered no ascertainable loss as a
result of Slusarczyk’s actions.
As our Supreme Court has explained, ‘‘in the business
context, a plaintiff asserting a CUTPA claim may satisfy
the ascertainable loss requirement of § 42-110g by
establishing, through a reasonable inference, or other-
wise, that the defendant’s unfair trade practice has
caused the plaintiff to lose potential customers.’’
(Emphasis added.) Service Road Corp. v. Quinn, 241
Conn. 630, 643–44, 698 A.2d 258 (1997). Additionally
‘‘in order to prevail in a CUTPA action, a plaintiff must
establish . . . that the prohibited act was the proxi-
mate cause of harm to the plaintiff.’’ (Emphasis added;
internal quotation marks omitted.) Abrahams v.
Young & Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d
709 (1997).
The court’s rejection of the plaintiff’s claim that Slu-
sarczyk’s violations of the 2004 agreement amounted
to a CUTPA violation was not clearly erroneous. The
court’s related findings demonstrate that the plaintiff
had not proven a loss as a result of Slusarczyk’s actions.
With respect to Guitar Center, the court found that ‘‘[the
plaintiff] has not offered evidence to show that after
coming in last in the auction it had some chance at
winning the business. So, Slusarczyk’s wrongs did not
deprive [the plaintiff] of Guitar Center’s business.’’ The
court determined that the plaintiff’s 46 percent profit
margin with Steak and Shake may suggest a reason
for Steak and Shake’s decision not to renew; that the
plaintiff ‘‘was not even in the running for Safelite’’ and
Safelite chose to hire its haulers directly; the plaintiff
lost Daltile’s business because it did not compete for
renewal; it was reasonable to infer that the plaintiff’s
43 percent profit margin with PetSmart or Waste Man-
agement’s recycling offer played a role in the plaintiff’s
loss of PetSmart’s business; the plaintiff only had a 8.33
percent chance of winning the Pilot Travel and Murphy
Oil accounts; and the plaintiff’s profit margins were
uncompetitive. The court determined that additional
companies mentioned by the plaintiff did not merit indi-
vidual scrutiny and that the plaintiff had not proven
recovery under any theory.
Additionally, the court determined that Slusarczyk’s
actions constituted ‘‘limited wrongs’’ by him. The court
examined the businesses that Slusarczyk solicited and
determined that he won Guitar Center’s business for
Waste Harmonics but that ‘‘Slusarczyk’s wrongs did not
deprive [the plaintiff] of Guitar Center’s business.’’ The
court reasonably could have concluded that Slusarc-
zyk’s actions in soliciting customers amounted to noth-
ing more than a failure to deliver on a promise, which
in the absence of aggravating unscrupulous conduct,
did not amount to a CUTPA violation. The court con-
cluded that ‘‘[g]iven the actual magnitude of the wrong
done here, the length and breadth of this lawsuit is
more likely explained by commercial rivalry and a bitter
break between employer and employee. Courts should
respect postemployment agreements when they are
used as shields but not when they are used as swords.’’
‘‘[N]ot every contractual breach rises to the level of a
CUTPA violation.’’ (Internal quotation marks omitted.)
Naples v. Keystone Building & Development Corp., 295
Conn. 214, 228, 990 A.2d 326 (2010). ‘‘[A]bsent substan-
tial aggravating circumstances, simple breach of con-
tract is insufficient to establish [a] claim under CUTPA.’’
Lydall, Inc. v. Ruschmeyer, supra, 282 Conn. 248.
The court determined that Waste Harmonics was
‘‘innocent’’ and that it was not reasonable to enforce
the terms of Slusarczyk’s 2004 agreement againt Waste
Harmonics ‘‘under any theory.’’ The court found that
the ‘‘objectively identifiable [two year] period of Slusar-
czyk’s nonsolicitation agreement expired before he
went to work for Waste Harmonics. Michael Hess,
Waste Harmonic’s [chief executive officer], confirmed
this before hiring Slusarczyk.’’ The ‘‘limited wrongs’’
the court found Slusarczyk to have committed, which
did not include a violation of CUPTA, rested on his
violation of the 2004 agreement, but the court found that
Waste Harmonics was not responsible for Slusarczyk’s
violations. The court’s finding that Waste Harmonics
did not violate CUTPA was not clearly erroneous.
Furthermore, the court rejected the plaintiff’s claim
against Omega and determined that ‘‘no damage from
the wrongdoing can be calculated if there was no wrong-
doing.’’ The court also determined that the plaintiff’s
claims for damages against Scharf were discharged in
bankruptcy, and the plaintiff does not challenge this
finding. We therefore conclude that the court’s finding
that the plaintiff could not prevail on its CUTPA claims
was supported by the evidence and, thus, was not
clearly erroneous. Additionally, the court did not err as
to the law in its analysis of the plaintiff’s CUTPA claims.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Omega was defaulted due to its failure to appear and has not participated
in this appeal. The plaintiff, however, is challenging the trial court’s decision
not to award it damages from Omega.
2
In its October 29, 2015 memorandum of decision on the motion for
summary judgment filed by Scharf, Slusarczyk, and Waste Harmonics, the
court concluded, as a matter of law, that the 2004 agreement between
Slusarczyk and the plaintiff was unenforceable for lack of consideration.
The court further concluded that the general release Slusarczyk signed in
2010 included the same terms as the 2004 agreement and was supported
by consideration and thus enforceable. Those determinations are not at
issue in this appeal.
3
In light of that determination, the court also ordered Slusarczyk to pay
reasonable attorney’s fees.
4
General Statutes § 35-57 (a) provides: ‘‘Unless otherwise agreed by the
parties, the provisions of this chapter supersede any conflicting tort, restitu-
tionary, or other law of this state pertaining to civil liability for misappropria-
tion of a trade secret.’’
General Statutes § 35-57 (b) provides in relevant part: ‘‘This chapter does
not affect: (1) Contractual or other civil liability or relief that is not based
upon misappropriation of a trade secret . . . .’’
5
The plaintiff’s CUTPA claim was based, in part, on the same basic facts,
namely, misappropriation of trade secrets, as its CUTSA claim.