Opinion
No. WWM CV06 4004952-S
October 27, 2009
MEMORANDUM OF DECISION
The plaintiff, Ives Brothers, Inc., brought this action against the defendant seeking monetary damages and injunctive relief for breach of contract, breach of fiduciary duty, unjust enrichment and violation of the Connecticut Unfair Trade Practices Act (CUTPA). The matter came before the court in May 2009, for a trial on the merits. Witnesses included Lewis Ives, Matthew Butler, Theodore Laythe, Jr. and the defendant. The court finds the testimony of Ives, Butler and Laythe to be generally credible and the testimony of the defendant to be generally not credible. The court has reviewed and considered the testimony, the exhibits and the parties' memorandum of law. After applying the law to the facts, judgment enters in favor of the plaintiff.
At the time of the events which are the subject of this action, Ives was the owner of the plaintiff corporation. Ives thereafter sold the business to Butler and Laythe and retired in January 2007.
Butler has worked for the plaintiff for twenty years and is presently the vice president and treasurer.
Laythe has worked for the plaintiff since 2000 and is presently the president and secretary.
FINDINGS OF FACT
The plaintiff, Ives Brothers, Inc. is a full-service heating oil company which has been in business in the Windham area for more than fifty years. The defendant, Don Keeney, is a burner service technician and has been employed in that field in the Windham area for fifty-four years. The defendant started his career with the plaintiff and thereby became acquainted with Lewis Ives. Soon thereafter, the defendant went on to start his own burner service company, Serve-All Burner Company. The defendant, however, continued to visit Ives on a weekly basis.
In early 2006, the defendant indicated to Ives that he was interested in scaling back his workload. The defendant represented to Ives that he had an active customer base of approximately 1,000 persons, that many of these were customers of long standing, that he was working six days a week to keep up with the work and that most of his service work took place in the summer. The defendant further represented that he had a garage full of HVAC equipment which had been worth $25,000 at the time it was purchased. Based on these representations, Ives offered to buy the defendant's business and to employ him part time. Ives reasoned that by acquiring the defendant's business, he could accommodate the defendant's desire to work part time and could alleviate his own need to lay off service technicians in the summer.
The defendant accepted Ives proposal and on February 6, 2006, the parties entered into a written asset purchase agreement and a written independent employment contract. By the terms of the asset purchase agreement, the plaintiff acquired all of the defendant's right, title and interest to his HVAC related inventory; a complete customer list, including all records or invoice of service work to these customers; all equipment and tools designed exclusively for HVAC work; and the Serve-All phone number and yellow page ads. In exchange, the defendant received $25,000.
According to the contract the allocation of the purchase price was as follows: $23,000.00 for the HVAC inventory; $1,000.00 for HVAC-related tools and equipment; and $1,000.00 for customer lists, phone number and yellow page ads.
The plaintiff also guaranteed the defendant the opportunity to work twenty hours per week on service calls, agreed to reimburse the defendant for the expenses associated with his truck and agreed to pay him a commission for each new customer that he found. In return the defendant agreed to work to secure his old customers for the plaintiff and also agreed not to compete with the plaintiff in the sale or service of oil or oil burners for the next five years. After the contracts were executed, the plaintiff embarked on an advertising campaign to incorporate the defendant into its business. At the cost of $9,488, the plaintiff paid for a yellow pages ad with the defendant's phone number, had brochures and postcards printed for mailing, printed business cards for the defendant and had magnetic signs made for the defendant's truck.
For tax reasons, the defendant did not want to become an employee of the plaintiff. Accordingly, the parties entered into an employment contract by which the defendant remained an independent contractor.
The defendant agreed to work without compensation to assist the plaintiff to secure as many of his former service customers as possible. The defendant agreed to do this by calling his former customers from the plaintiff's office.
Shortly thereafter, the defendant gave the plaintiff a thirteen-page customer list dated April 8, 2005 as well as a box of paperwork containing invoices of work performed for his customers. The customer list included phone numbers but did not contain addresses and some of the invoices did not have names or addresses. In an effort to secure addresses, the plaintiff's office staff began to phone the names on the customer list. They soon discovered that many of the phones on the list had been disconnected and other phone numbers had been reassigned to people whose names did not appear on the list. The plaintiffs quickly concluded that the list was virtually worthless. As part of the agreement, the plaintiff had also acquired the defendant's phone number and had a line installed in its offices with that number. According to Butler, this phone rang an average of once per day which suggested to Butler that the defendant's claim of 1,000 customers was grossly inflated.
Ives, Butler and Laythe credibly testified that the final yield from the defendant's list was approximately two dozen customers.
The HVAC inventory which the defendant sold to the plaintiff was stored in a garage in Willimantic. Laythe went to the garage to conduct an inventory and discovered that eighty percent of the parts were used. Those parts had minimal value to the plaintiff since it does not utilize used parts in its business. Laythe valued all of the parts at $4,000 — 5,000.
At the beginning of their relationship, the defendant spent time in the plaintiff's offices calling his former customers and trying to convert them to the plaintiff. By April 2006, however, the defendant was spending less and less time at the plaintiff's offices and was also making himself unavailable for service calls. On many occasions when the plaintiff called the defendant to assign service calls, the defendant would reply that he was not available; at other times, the plaintiff would call on the morning of an assignment to beg off. These actions of the defendant necessitated that the plaintiff, at the last minute, reassign other technicians to perform the defendant's work. As a further result of these actions, the plaintiff began to suspect that the defendant was working in violation of the non-compete clause and in July 2006, photographed the defendant performing burner work at Colonial Townhouse Apartments. When confronted with this evidence, the defendant denied that he was the individual pictured in the photograph, but then offered to give the plaintiff a commission. Additionally, the plaintiff discovered that the defendant was receiving calls from customers for whom the plaintiff had no account.
Records introduced at the trial show that the defendant performed a total of $12,225.00 worth of burner work for Colonial on June 28, June 29, June 30, July 3, July 5, July 6, July 8, July 10, July 11, October 1, October 2, October 3, October 8, October 10, October 11, October 12, October 23, October 24, October 26, October 27, October 28, October 30, November 8, November 13, November 14, November 15, November 16 and November 17, 2006.
On July 17, 2006, Ives, Butler and Laythe met with the defendant and expressed their displeasure with the customer list and his violation of the non-compete clause. As a result of this meeting, the parties agreed that the plaintiff would no longer pay for the expenses attributable to the defendant's vehicle. They agreed, however, to revisit this issue on August 31, 2006. The defendant further agreed to provide and did thereafter provide the plaintiff with another customer list. The new customer list was nothing more than a duplication of the list which the defendant had provided in February with the exception that at the top of the list, the words "Cooperative Oil" were visible through the white-out which had been placed over them. This list was as worthless to the plaintiff the second time as it had been the first time. In his deposition taken in connection with this case, the defendant admitted not turning over all of his customer names to the plaintiff.
Cooperative Oil was another full service heating oil company operating in the Windham area.
In late August 2006, the defendant appeared at the plaintiff's office and demanded that the plaintiff purchase vehicle insurance for his truck or else he would quit. Butler refused to comply with the defendant's demand and the defendant responded that he quit. Thereafter, the plaintiff unloaded its equipment from the defendant's truck and ultimately this action was commenced.
The plaintiff claims because the defendant used certain HVAC specific equipment while at Colonial, this proves the defendant did not turn over all of his HVAC related equipment as required by the asset purchase agreement. This claim lacks credibility in light of the plaintiff's admission it provided the defendant with HVAC equipment to service burners.
Additional facts will be discussed as necessary.
DISCUSSION A. Breach of Contract
In the first count of the complaint, the plaintiff alleges that the defendant breached the asset purchase agreement by failing to transfer a complete list of customers to the plaintiff and breached the independent employment contract by failing to notify the plaintiff of new service contracts, by servicing oil-fired equipment for non-Ives customers, by failing to remit to the plaintiff sums received for servicing oil-fired equipment and by failing to meet with former customers of Ives.
"The elements of a breach of contract action are the formation of an agreement performance by one party, breach of the agreement by the other party and damages." (Citations omitted; internal quotation marks omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81, 887 A.2d 420 (2006). At the trial in the present case, the defendant admitted that he failed to turn over to the plaintiff the names of four or five of his pre-February 6, 2006 customers. Additional evidence shows that up until the time he quit, the defendant only sporadically attempted to contact his former customers and convert them to customers of the plaintiff and still other evidence shows that the defendant did not notify the plaintiff of new customers and new contracts, including a contract with Colonial Townhouse Apartments. Evidence also shows that on twenty-eight occasions between June 28 and November 17, 2006, the defendant serviced oil-fired equipment at Colonial Townhouse Apartments and that he retained the payments made to him by Colonial. The defendant received $12,225 for the work performed at Colonial. It is abundantly clear, therefore, that in a variety of ways, the defendant breached both of his contracts with the plaintiff.
The plaintiff claims damages for advertising and marketing expenses in the amount of $9,488 which were incurred in order to integrate the defendant into its company. These expenses included the printing of brochures, postcards and business cards, a Yellow Pages advertisement and magnetic signs for the sides of the defendant's truck. The plaintiff also claims damages in the amount of $12,225 for the work performed at Colonial.
"It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach . . . The concept of actual loss accounts for the possibility that the breach itself may result in a saving of some cost that the injured party would have incurred if he had had to perform . . ." (Citations omitted; internal quotation marks omitted.) Hees v. Burke Construction, Inc., 290 Conn. 1, 7-8, 961 A.2d 373 (2009).
"[T]he burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty." (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 512, 853 A.2d 460 (2004). "Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006).
"If a party has suffered no demonstrable harm . . . that party may be entitled . . . to nominal damages for breach of contract . . ." News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 535, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005). See Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 254, 919 A.2d 421 (2007). In other words, "[an] award of nominal damages is appropriate when there is a clear invasion of a legal right . . . but no finding of a compensable injury." (Internal quotation marks omitted.) Devito v. Schwartz, 66 Conn.App. 228, 235, 784 A.2d 376 (2001).
In the present case, there is no dispute that had the contract been performed as contemplated, the plaintiff would nevertheless have spent the sum it actually expended for marketing and advertising. Thus an award of damages for these sums would not put the defendant in the position it would have been in had the contracts been performed. Accordingly, the court declines to award damages for these expenses. Additionally, although the plaintiff proved that the defendant failed to turn over the names of five of his pre-February 2006 customers, that he failed to cooperate in securing his former customers and that he did not notify the plaintiff of new service contracts obtained and services performed, with the exception of the losses attributable to Colonial, the plaintiff has failed to prove any quantifiable loss directly resulting from these actions. Accordingly it would be speculation to conclude that the plaintiff had suffered anything but nominal damages.
The defendant denies that he competed with the plaintiff and claims that Colonial would never have hired the plaintiff for its burner service work. At trial, the sole evidence in support of this assertion was the defendant's own uncorroborated testimony to that effect. Like most of the defendant's testimony, the court finds this testimony not credible. Other more credible evidence shows that on at least one occasion, the defendant drove to Colonial in a truck with the plaintiff's name on the sides and on at least seven other occasions, the defendant billed Colonial using invoices preprinted with the plaintiff's name and address. Moreover, there is no evidence that Colonial expressed any reservation or refusal to pay these bills. The plaintiff has proved that the defendant competed against it, that he serviced oil-fired equipment, that he received compensation of $12,225 for this work and that it suffered a loss thereby. Accordingly, the plaintiff is entitled to be compensated for its loss and the court awards damages of $12,225.
Finally, paragraph 9 of the Independent Employment Contract between the parties provides that "if [the plaintiff] is required to enforce any part of this contract through litigation, [the defendant] will be held liable for [the plaintiff]'s attorneys fees based on reasonable hourly rates, and costs of suit." Accordingly, the court also awards attorneys fees to the plaintiff.
B. Breach of Fiduciary Duty
In the second count, the plaintiff claims that the defendant breached his fiduciary duty to the plaintiff by failing to turn over his complete customer list, by servicing former customers, by failing to cooperate in the transfer of business to the plaintiff, by failing to notify the plaintiff of new customers, by failing to remit sums for service work to new customers and by soliciting customers for his own benefit.
"[A] prerequisite to finding a fiduciary duty is the existence of a fiduciary relationship . . ." Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). "Simply classifying a party as a fiduciary inadequately characterizes the nature of the relationship." Konover Development Corp. v. Zeller, 228 Conn. 206, 223, 635 A.2d 798 (1994). "The determination of whether a fiduciary relationship exists between the parties is a question of fact." Miller Foods, Inc. v. Schubert-Loughran, Superior Court, judicial district of Hartford, Docket No. CV 020815760 S (May 20, 2009, Tanzer, J.).
"In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another . . . In the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." (Internal quotation marks omitted.) Biller Associates v. Peterken, 269 Conn. 716, 723-24, 849 A.2d 847 (2004).
"The essential elements to . . . a cause of action for breach of fiduciary duty under Connecticut law are: 1. That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff; 2. That the defendant advanced his or her own interests to the detriment of the plaintiff; 3. That the plaintiff sustained damages; 4. That the damages were proximately caused by the fiduciary's breach of his or her fiduciary duty." T. Merritt, 16 Connecticut Practice Series: Elements of an Action (2009-2010 Ed.) § 8:1. "The plaintiff may recover his or her actual damages on a claim for breach of fiduciary duty. Leisnre Resort Technology, Inc. v. Trading Cove Assocs., 277 Conn. 21, 889 A.2d 785 (2006) (damages must be established with reasonable certainty and not calculated based on a contingency or conjecture)." Id.
In the present case, by virtue of the employment contract between the parties, the defendant owed the plaintiff a duty of loyalty and an obligation to act in the plaintiff's best interest and in good faith. In contravention of these duties and obligations, the defendant failed to turn over his complete customer list, failed to notify the plaintiff of new customers, failed to remit sums for service work performed at Colonial and failed to cooperate in the transfer of his old customers. As such, the defendant advanced his own interests to the detriment of the plaintiff and the plaintiff was harmed by the defendant's actions. Inasmuch as the court has previously determined and awarded these same damages under the breach of contract count, it would be inappropriate to give the plaintiff the windfall of a double award. Accordingly, the court declines to award damages.
C. Unjust Enrichment
In the third count, the plaintiff alleges that the defendant was unjustly enriched by his receipt of $25,000 and his failure to transfer all of the assets of the defendant's business including a complete customer list. The evidence adduced at trial demonstrates that as required by the asset purchase agreement, the defendant turned over his HVAC related inventory, his equipment and tools and his Serve-All phone number and yellow pages ads. The defendant additionally turned over a customer list containing approximately 1,000 names and his records and invoices of service to these customers. The only asset which the defendant failed to turn over was the names of five customers which were omitted from the list. This action of the defendant constituted a breach of an explicit provision of the parties' contract. Thus the plaintiff had a remedy under the contract and recovery for unjust enrichment is not available. Hartford Whalers Hockey v. Uniroyal Goodrich Tire, 231 Conn. 276, 282, 649 A.2d 518 (1994) (Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by action on the contract.)
D. CUTPA
In the fourth count, the plaintiff alleges that the defendant violated the Connecticut Unfair Trade Practices Act by his breach of contract, breach of fiduciary duty and unjust enrichment.
"CUTPA provides that [n]o person shall engage in unfafr methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . .
"It is well settled that in determining whether a practice violates CUTPA [the Connecticut Supreme Court] has 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 previously 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 business persons] . . . 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. (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
"CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, § 42-110b(a), states merely that `[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.' Trade or commerce, in turn, is broadly defined as `the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.' General Statutes § 42-110a(4). The entire act is remedial in character . . . and must `be liberally construed in favor of those whom the legislature intended to benefit.'" (Citations omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995).
"Breaches of contract that are considered `egregious and unconscionable' can . . . arise to CUTPA violations . . ." (Citations. omitted; internal quotation marks omitted.) Webster Financial Corp. v. McDonald, Superior Court, judicial district of Waterbury, Docket No. CV 08 4016026 (January 28, 2009, Brunetti, J.). Additionally, allegations which have as their common denominator an employer-employee relationship may give rise to a CUTPA claim under certain circumstances. Larsen Chelsey Realty Co. v. Larsen, supra, 232 Conn. 480. Notably, "[A]ctions [of the defendant] outside the scope of the employment relationship designed to usurp the business and clientele of one corporation in favor of another may fall under CUTPA." (Citation omitted; internal quotation marks omitted.) Kelly v. Noble Environment Power, LLC, judicial district of Middlesex, Docket No. CV 08 5005444 (September 2, 2009, Jones, J.)
In the present case, it is beyond dispute that the defendant was engaged in trade or commerce. Additionally, the evidence shows that in the practice of his trade or commerce, the defendant fraudulently represented to the plaintiff on multiple occasions that he had one thousand active oil burner customers. This fraudulent representation and others induced the plaintiff to enter into a contract to purchase the defendant's business and assets and a second contract to employ the defendant. Thereafter, in breach of these contracts, the defendant delivered to the plaintiff a fraudulent and incomplete customer list and failed to perform other obligations required by the contracts. Moreover, in derogation of an explicit provision of the employment contract, the defendant has repeatedly engaged in direct competition with the plaintiff. These actions of the defendant were intentional, unfair, unethical and unscrupulous.
General Statute § 42-110g(a) provides that "[t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." "The standard for awarding punitive damages under CUTPA was set forth in Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987), where [this Court] explained, `[i]n order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.'" Tessman v. Tiger Lee Construction Co., 228 Conn. 42, 54 (1993). The defendant's conduct, as recited above, warrants the imposition of punitive damages. Accordingly the court awards $5,000.
D. Permanent Injunction
Finally, in the sixth count of the complaint, the plaintiff alleges that the defendant has violated the Independent Employment Contract and that it has no adequate remedy at law. The plaintiff thus seeks a permanent injunction.
"A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion . . . The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm . . ." (Citations omitted; internal quotation marks omitted.) Tighe v. Town of Berlin, 259 Conn. 83, 87-88 (2002).
The Independent Employment Contract signed by the parties on February 6, 2006, provides that "during the term of this contract, or during the next five (5) years after its termination, [the defendant] shall not, directly or indirectly engage in the promotion or sale, or be in any manner, either as an individual, partner, stockholder, director, officer, clerk, principal, agent, employer, employee, trustee, lender of money or in any other relation or capacity whatsoever, directly or indirectly (except in the capacity of agent, employee or stockholder of [the plaintiff]), engaged or interested in the sale of oil to retail customers, or the sale or service of any oil burners used in the heating of any structure in a 20-mile radius of the offices of [the plaintiff], or elsewhere in Windham County." The contract further provides that "the parties agree that [the plaintiff] may obtain such preliminary, temporary, or permanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect [the plaintiff] against, or on account of, any breach of the provisions of this contract."
On February 21, 2007, after a contested hearing, the court (Booth, J.) issued a temporary injunction enjoining and restraining the defendant from, inter alia, "directly or indirectly contacting and/or soliciting individuals within a 20-mile radius of [the plaintiff] or elsewhere in Windham County . . . Provided . . . nothing in the order shall enjoin or prohibit [the defendant] from soliciting/contacting and/or otherwise communicating with or providing services to Colonial Townhouse Apartments." In its decision to exclude Colonial, the court considered and balanced the injury complained of against the interference to the defendant by the injunction and found that the defendant would be seriously disadvantaged, and the plaintiff not disadvantaged, if the defendant were enjoined as to Colonial. See Tighe v. Town of Berlin, supra, 259 Conn. 88. (The court may consider and balance the injury complained of with that which will result from interference by the injunction.)
". . . [T]he Court . . . finds that [the defendant] would be seriously disadvantaged if he were enjoined with regard to Colonial Townhouse Apartments, while [the plaintiff] would not be disadvantaged if [the defendant] were not enjoined because the evidence established that Colonial Townhouse Apartments would not transfer its business to [the plaintiff]." Temporary Injunction, February 21, 2007, Booth, J.
At trial, the plaintiff requested that this court find that the temporary injunction issued by Judge Booth be the law of the case and that this court convert it into a permanent injunction with a duration of September 1, 2006 to August 31, 2011. "A temporary injunction is a preliminary order of court, granted at the outset or during the pendency of an action, forbidding the performance of the threatened acts described . . . until the rights of the parties . . . shall have been finally determined by the court. Deming v. Bradstreet, 85 Conn. 650, 659 (1912). The primary purpose of a temporary injunction is to maintain the status quo until the rights of the various parties can be sorted out, after a hearing on the merits. Clinton v. Middlesex Assurance Co., 37 Conn.App. 269, 279 (1995)." (Internal quotation marks omitted.) Poirier v. Enfield, Superior Court, judicial district of Tolland, Docket No. CV 09 4010961 (August 24, 2009, Sferrazza, J.) "A court may transform a temporary injunction into a permanent injunction by the consent of the parties . . . or upon the motion of one of the parties. Dunham v. Dunham, 217 Conn. 24, 26-27, 584 A.2d 445 (1991)." (Internal quotation marks omitted.) George Weiss Associates v. Christiani, Superior Court, judicial district of Hartford, Docket No. CV 95 0705613 (March 13, 1995, Berger, J.) (14 Conn. L. Rptr. 124).
The evidence at trial shows that due to his lengthy employment in the oil burner service business in the Hebron/Windham area, the defendant has amassed a favorable reputation and considerable good will in the area. Significantly, the plaintiff's business also encompasses the Hebron/Windham area. Other evidence shows that in violation of the non compete clause of the employment contract and within months of the defendant's employment by the plaintiff, the defendant began to solicit customers and perform burner service work within miles of the plaintiff's office in Willimantic. These actions were in direct competition with the plaintiff and undertaken in bad faith by the defendant. The evidence also shows that the employment contract between the parties was negotiated at arm's length by two parties with more than eighty years experience in the oil service business.
The court finds that it is unfair to the plaintiffs to allow the defendant to solicit business and directly compete with the plaintiff in the same geographic region, that the geographic and temporal restrictions of the covenant are reasonable under the circumstances, that the plaintiff has no adequate remedy at law and that any hardship inflicted on the defendant is ameliorated by his informed acceptance of this condition of employment. The plaintiff seeks extension of the injunction to prohibit the defendant from working at Colonial. As stated previously, the sole evidence that Colonial would not have hired the plaintiff to do its oil burner service work was the defendant's uncorroborated testimony to that effect, which the court has previously found not credible. The court, therefore, finds no reason to exclude the defendant's employment at Colonial Townhouse Apartments from the permanent injunction.
CONCLUSION
For the foregoing reasons the court enters judgment in favor of the plaintiff on counts 1, 2, 4 and 5 of the complaint and in favor of the defendant on count 3. Accordingly, the defendant is ORDERED:
Count five seeks a temporary injunction which was issued by the court on February 21, 2007 and which is superceded by this decision.
1. To pay the plaintiff the sum of $12,225 in compensatory damages.
2. To pay the plaintiff the sum of $5,000 in punitive damages.
3. To refrain from engaging in oil burner sales, service or repair within a 20-mile radius of 1244 Main Street, Willimantic, CT. or elsewhere in Windham County from September 1, 2006 until August 31, 2011.
4. To pay attorneys fees to the plaintiff in a sum to be determined at a subsequent hearing.