Opinion
CV146006933S
06-15-2016
Krall Coal and Oil Company v. Robert Gambardella
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kathleen E. McNamara, Judge.
PROCEDURAL HISTORY
On December 31, 2015, the plaintiff, Krall Coal and Oil Company (Krall), filed an amended complaint alleging claims of tortious interference with business relations, unfair competition and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b, against the defendant, Robert Gambardella.
The court finds the following facts. The plaintiff is a Connecticut corporation engaged in the business of home heating oil sales and delivery. Since 1979, the defendant has worked in the home heating oil sales and delivery business. From 1997 until September 29, 2012, the defendant was a member of a Connecticut limited liability company, RVG, LLC (RVG). RVG conducted business as Vadney and was a competitor of the plaintiff. On September 29, 2012, the plaintiff purchased the assets of RVG, which included the trade name, Vadney Oil, and also included a list of approximately 800 customers for fuel oil deliveries, annual cleanings, services contracts, service calls, and installations. The defendant entered into a three-year employment contract with the plaintiff, where he agreed to work as a customer service representative for sales and services. As prior owner of Vadney, the defendant had access to the plaintiff's confidential business information including customer lists, business relationships, sales data, and pricing information.
On September 29, 2009, Vadney sent a written notification to its customers that the plaintiff and Vadney had " teamed up" for customer oil service and sales. The notice stated that the defendant and his wife, Linda, would continue to run the Vadney office and if customers had any questions to call " Bob or Linda Gambardella." The plaintiff also entered into a three-year agreement with a realty company to lease space for the Vadney office location.
On June 1, 2012, the plaintiff notified the realty company that the lease would not be renewed upon its expiration on September 30, 2012. By way of written correspondence, customers of Vadney were notified of the merger between the plaintiff and Vadney, and were also notified that the main office would be moved to the plaintiff's main office located in New Haven, Connecticut. The contact phone number and the employees would remain the same. The defendant continued to work for the plaintiff until December 7, 2012.
In February of 2013, the defendant entered into an employment agreement to work for Oyster River Petroleum, Inc., currently known as Oyster River Energy (Oyster River), which is in the business of home heating oil sales and delivery and is a competitor of the plaintiff. The defendant's responsibility was to generate new accounts for Oyster River. During the defendant's working relationship with Oyster River, he generated new customers and accounts for the company in the New Haven County area. Of these new customers, approximately forty were former customers and/or accounts from Vadney/Krall. Phone records from the defendant's cell phone showed calls between the defendant and Vadney/Krall customers during his employment with Oyster River. On March 13, 2013, the plaintiff, through counsel, sent the defendant a cease and desist from engaging in activities for other oil companies. On March 19, 2013, the plaintiff, through counsel, advised Oyster River that there was a restrictive covenant which prevented the defendant from working for any other oil company for three years commencing at the separation date of December 7, 2012. The defendant continued to work for Oyster River until he was terminated in June of 2013.
The restrictive covenant is not an issue in the present case as the terms of the covenant expired prior to the commencement of trial.
On July 13, 2013, the defendant formed Allstar Fuel, LLC, a limited liability company, which is in the business of home heating oil sales and delivery within New Haven County. New customers generated by the defendant for Allstar Fuel, LLC, included twelve former Vadney/Krall customers. The defendant did not report any income from Allstar Fuel, LLC, for the year 2013, and reported $10,000 in income for the year 2014.
At trial and in its amended complaint, the plaintiff further alleged the following. The defendant tortuously interfered with the plaintiff's business relations when the defendant unfairly and improperly caused the plaintiff's customers to cancel their accounts with the plaintiff for the defendant's own financial benefit and to the detriment of the plaintiff. As a result of the defendant's intentional, willful, wanton, and reckless conduct, the plaintiff suffered damages and losses including, loss of business, loss of competitive advantage, and loss of profits. The plaintiff further alleged that the defendant's conduct constitutes unfair acts of competition, that the defendant's acts were without justification, and that as a result of unfair competition, the plaintiff has suffered damages. The plaintiff also alleged that the conduct of the defendant constitutes an unfair method of competition and unfair or deceptive acts in violation of CUTPA. As a result of the defendant's conduct, the plaintiff suffered harm and seeks damages.
A bench trial was held and began on January 7, 2016. Evidence was presented on January 7, February 3, and February 4, 2016. At the close of trial, in lieu of closing arguments, the parties filed closing briefs.
DISCUSSION
A.
Tortious Interference with Business Relations
" Connecticut has long recognized a cause of action for tortious interference with business relations . . . Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 768-69, 706 A.2d 1379 (1998). " [I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32-33, 761 A.2d 1268 (2000). " [A]n action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means . . . The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but 'intentional interference without justification.' . . . In other words, the [plaintiff] bears the burden of alleging and proving 'lack of justification' on the part of the actor." (Citations omitted.) Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 805-06, 734 A.2d 112 (1999).
The evidence presented to the court shows that there is no dispute that there was a contractual agreement between the plaintiff and the Vadney/Krall customers, that the defendant knew of that relationship, that the defendant intended to interfere with that relationship, and that the defendant's interference caused the plaintiff to suffer a loss. Thus, the sole issue before the court is whether the defendant's interference was tortious.
In support of his argument, the defendant argues that there is not any evidence that his conduct was tortious and there is not any evidence of interference by the defendant with the plaintiff's business relations. The court, however, is unpersuaded by the defendant's argument.
Our Appellate Court has recognized that an individual has undertaken a tortious act when, acting with an improper motive, they urge one party to cancel its contract with another. Reyes v. Chetta, 143 Conn.App. 758, 766, 71 A.3d 1255 (2013). In Reyes, the defendant sold his landscaping business to another individual. Id., 760-61. In turn, that individual sold the landscaping business, along with its accounts, to the plaintiff. Id., 761. When the defendant discovered the subsequent sale, he began contacting his former customers, asking them to cancel their accounts with the plaintiff and rehire the defendant. Id. In so doing, he managed to take roughly 70% of his former customers from the plaintiff. Id. Thereafter, the plaintiff successfully sued on a theory of tortious interference with business expectancies. Id., 762-63.
On appeal, the Appellate Court affirmed the judgment. In particular, the court noted that it was proper to ignore the defendant's claimed justification for his conduct-that the individual to whom he had first sold the landscaping business was in default on that contract-because (a) the defendant had legal remedies available on that contract, and (b) the defendant made statements indicating simply that he wanted the business back for himself. Id. In the absence of any justification or proper motive for his actions, there was ample evidence on the record to support a finding of tortious conduct.
In Reyes, the court noted that there are numerous factors to consider for a finding of tortious conduct, including: " (a) the nature of the actor's conduct, (b) the actor's motive, (c) the interests of the other with which the actor's conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor's conduct to the interference and (g) the relations between the parties." (Internal quotation marks omitted.) Reyes v. Chetta, supra, 143 Conn.App. 764.
Similarly, in the present case, the defendant offered several reasons to the court as to why his conduct was justified. First, the defendant testified that the sale of Vadney to the plaintiff had been a " distress sale" and that Inland Fuel, the holder of the debt, for the amount of $1,182,304, had sold the business to the plaintiff for $200,000 in order to " force the defendant out of business." See Trial Tr. February 4, 2016, p. 9. Further testimony of the defendant revealed that the defendant's original work location was closed by the plaintiff, forcing the defendant and his wife to drive to the new location in New Haven. The commute to the new office location along with an earlier start time made it difficult for the defendant to care for his elderly father. See Trial Tr. February 4, 2016, pp. 1, 4. Finally, the defendant testified that his wife, Linda, was subject to a hostile work environment by Bob Katzman, the manager of Krall. See Trial Tr. February 4, 2016, p. 2. Katzman, however, testified that Linda's work performance was poor and that she refused to complete tasks assigned by Katzman because Katzman was not her boss and she worked only for Vadney. See Trial Tr. February 4, 2016, pp. 2, 3. The court finds that none of the aforementioned reasons offered by the defendant justify his improper motive for his actions, when he contacted his former customers, asking them to cancel their accounts with the plaintiff. Therefore, in the absence of any justification or proper motive for his actions, there is ample evidence on the record to support a finding of tortious conduct.
In light of the foregoing, the plaintiff has proven, by a preponderance of the evidence, that the defendant tortiously interfered with the plaintiff's business relations, namely with its customers for home heating oil service and sales, causing the plaintiff actual loss. Accordingly, the court renders judgment for the plaintiff as to count one.
B.
Unfair Competition
The common law action of unfair competition is a valid claim recognized by Connecticut Courts. " Competition is of two kinds. Fair and unfair, and unfair competition, in turn, is capable of being divided into the ethically unfair and the legally unfair. Courts will concern themselves only with the latter." Savoy Laundry and Linen Supply v. Morgan Linen Service, Inc., 16 Conn.Supp. 408, 410 (1949). It is a principle of common law that " [o]ne who causes loss of business or occupation to another merely by engaging in a business or occupation in good faith is not liable to the other for the loss so caused, though he knows that the loss will result." 3 Restatement, Torts § 708, p. 519. " It is only 'unfair' competition that is prohibited." 1 F. Harper & F. James, Jr., Torts (1956) § 6.13, p. 517. These substantive principles have engendered correlative jurisdictional rules. Although an allegation merely of competition likely to result in lost revenues is ordinarily insufficient to confer standing, this court has frequently assumed jurisdiction as a matter of course over claims of unfair or illegal competition. See Shop-Rite Durable Supermarket, Inc. v. Mott's Shop Rite, 173 Conn. 261, 265, 377 A.2d 312 (1977).
The defendant testified that while employed with the plaintiff, he had access to the confidential customer lists of former Vadney customers. See Trial Tr. February 4, 2016, p. 82-83. Additionally, evidence produced during the trial showed that the defendant had personal possession of Vadney's customer list (up to the letter K) from 2007 until 2015. See Pl.'s Exhibit 30. Phone records produced at trial also showed that the defendant made a series of calls to Vadney/Krall customers. See Pl.'s Exhibit 31. The defendant gave a myriad of reasons for the calls to these Vadney/Krall customers. One call was to a high school classmate of his who called him the night before. See Trial Tr. February 3, 2016, p. 124. Others included his father's barber, a family friend and mother of a son who the defendant coached in baseball, his former high school science teacher and a doctor who the defendant's son was employed by for two years. See Trial Tr. February 3, 2016, pp. 118-29. The court, however, does not find the defendant's testimony credible regarding his series of phone calls, especially in light of the evidence presented by the plaintiff, who demonstrated that all of the above Vadney/Krall customers left or cancelled their contracts with the plaintiff shortly after the phone calls were made by the defendant. See Pl.'s Exhibits 11 and 23.
In light of the foregoing, the plaintiff has proven, by a preponderance of the evidence, that the defendant's conduct constitutes unfair competition. Accordingly, the court renders judgment for the plaintiff as to count two.
C.
Connecticut Unfair Trade Practices
General Statutes § 42-110b(a) provides 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." " It is well settled that in determining whether a practice violates CUTPA [our Supreme Court has] adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission 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 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 . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . ." (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350-51, 994 A.2d 153 (2010).
" [T]he essential difference between a tort claim for interference with business expectancies and a claim under CUTPA is the standard by which the alleged acts are measured. While liability in tort is imposed only if the defendant maliciously or deliberately interfered with a competitor's business expectancies, CUTPA liability is premised on a finding that the defendant engaged in unfair competition and unfair or deceptive trade practices. The Connecticut General Assembly deliberately chose not to define the scope of unfair or deceptive acts proscribed by CUTPA so that courts might develop a body of law responsive to the marketplace practices that actually generate such complaints." Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 755, 474 A.2d 780 (1984).
Additionally, " [a]lthough our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Citation omitted.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269 (2006). " To state a claim under CUTPA, the plaintiff must allege that the actions of the defendant were performed in the conduct of trade or commerce . . . Moreover, a CUTPA violation may not be alleged for activities that are incidental to an entity's primary trade or commerce." (Citations omitted; internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 493-94, 977 A.2d 228 (2009). " [M]ere unscrupulousness in the conduct of business activities is not actionable under CUTPA unless it occurs in that portion of such activities which constitutes the conduct of any trade or commerce, within the meaning of [§ ]42-110a(4). The focus of the statute is thus not on unscrupulous behavior by businessmen in every aspect of their business lives, but on those specific types of unscrupulous behavior that take place in, and adversely affect others who take part in, the particular trade or commerce in which the defendant is engaged . . . Hence, though the statute is indeed remedial, and must be broadly construed in light of its protective purpose-to ensure fairness to consumers, competitors and other business people who take part in the defendants' relevant marketplace-its scope cannot be stretched beyond that purpose to reach other forms of business misconduct that do not occur in or affect the proper functioning of the defendants' marketplace." (Citation omitted; internal quotation marks omitted.) Phillips Industrial Service Corp. v. Connecticut Light & Power Co., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-98-04099665-S (June 18, 1999, Sheldon, J.) (24 Conn.L.Rptr. 641, 643, ).
Our Supreme Court has recognized that, although " [c]onduct that might be actionable under CUTPA may not rise to a level sufficient to invoke tort liability . . . [t]he reverse of that proposition . . . is seldom true." Id. Indeed, we have noted that " it is difficult to conceive of a situation where tortious interference would be found but a CUTPA violation would not." Sportsmen's Boating Corp. v. Hensley, supra, 192 Conn. 757. Moreover, " [w]hether a practice is unfair and thus violates CUTPA is an issue of fact . . ." Willow Springs Condominium Ass'n., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43, 717 A.2d 77 (1998).
In the present case, the plaintiff has proven its claims of tortious business interference and common law unfair completion by a preponderance of the evidence. The court finds that, in the present case, it is implausible to render judgment for the plaintiff on these two claims, but not on the CUTPA claim. Nonetheless, in analyzing the plaintiff's CUTPA claim, the court finds that the defendant's conduct was in furtherance of trade or commerce as he was engaged in the home heating oil sales and delivery business and generated income while being employed by the plaintiff, by Oyster River, and by All-Star Fuel, LLC. With respect to whether the defendant's conduct constituted an unfair trade practice, the defendant's conduct, by contacting Vadney/Krall customers and soliciting their business, constitutes immoral and unethical conduct under the second prong of the cigarette rule. Therefore, the next issue the court must address is whether the plaintiff suffered a substantial loss that was caused by the defendant's conduct.
The ascertainable loss requirement [of § 42-110g] is a threshold barrier which 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 ascertainable loss due to a CUTPA violation." (Internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217-18, 947 A.2d 320 (2008). CUTPA, however, " is not limited to providing redress only for consumers who can put a precise dollars and cents figure on their loss . . ." Hinchliffe v. American Motors Corp., 184 Conn. 607, 618, 440 A.2d 810 (1981). Accordingly, our Supreme Court has concluded that, for purposes of § 42-110g, an ascertainable loss " is a deprivation, detriment [or] injury that is capable of being discovered, observed or established . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . . Under CUTPA, there is no need to allege or prove the amount of the actual loss." (Citation omitted; emphasis added; internal quotation marks omitted.) Service Road Corp. v. Quinn, 241 Conn. 630, 638-39, 698 A.2d 258 (1997).
Moreover, " [w]hen plaintiffs seek money damages, the language as a result of in § 42-110g(a) requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff . . . [P]roximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act." (Citation omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. 218.
In the present case, as further discussed in the below section on damages, the plaintiff did not present the exact amount of loss, but rather submitted to the court damages that are speculative. Nonetheless, CUTPA does not require a plaintiff to prove an exact dollar amount, but rather an ascertainable loss. While the precise amount of loss cannot be determined by reasonable certainty, the plaintiff has demonstrated a deprivation of customers that is capable of being discovered. Based on the testimony and evidence presented to the court, the court finds that the plaintiff suffered an ascertainable loss of revenue when customers left or cancelled their contracts with the plaintiff. The court further finds that the plaintiff suffered an ascertainable loss under CUTPA and that the defendant's actions were the proximate cause of the plaintiff's loss, i.e., its inability to profit from customers who left and cancelled their contracts with the plaintiff. Accordingly, the court renders judgment in favor of the plaintiff as to count three.
D.
Damages
" Although we recognize that damages for lost profits may be difficult to prove with exactitude . . . such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty . . . Consequently, we have permitted lost profits to be calculated by extrapolating from past profits. See, e.g., Westport Taxi Service, Inc. v. Westport Transit District, [235 Conn. 1, 32-33, 664 A.2d 719 (1995)] (proper to base lost profits award on profits from preceding year); Humphrys v. Beach, [149 Conn. 14, 21, 175 A.2d 363 (1961)] (" [i]n the absence of evidence to the contrary, the court was entitled to draw the inference that the plaintiff's business would continue to be as profitable as it had been in the year and a half before the fire"). We have stated, however, that the plaintiff cannot recover for 'the mere possibility' of making a profit. See Goldman v. Feinberg, 130 Conn. 671, 674-75, 37 A.2d 355 (1944) (in context of tortious interference claim, plaintiff must show more than that he was 'about to' enter into contract and must, instead, show that he 'would have' done so). A damage theory may be based on assumptions so long as the assumptions are reasonable in light of the record evidence . . . In order to recover lost profits, therefore, the plaintiff must present sufficiently accurate and complete evidence for the trier of fact to be able to estimate those profits with reasonable certainty." (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 70-71, 717 A.2d 724 (1998).
Moreover, in order to establish that he was entitled to punitive damages, the plaintiff is required to show that the defendant's behavior evidenced " a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008).
At trial, the plaintiff claimed that, for the reasonable period of five years, when the plaintiff interfered with its business expectancies, it suffered lost profits on the delivery of home heating and oil and the maintenance of customers who used the services of the plaintiff, but left/cancelled contracts with the plaintiff when the defendant was employed by a competitor of the plaintiff. In support of its claim for lost profits, the plaintiff introduced the following evidence: a list of Vadney/Krall customers with addresses and phone numbers that the defendant had in his possession; phone calls made to Vadney/Krall customers by the defendant after he left his employment with Vadney/Krall; and letters given to Vadney/Krall customers. See Pl.'s Exhibits 23, 29, and 30. At trial, Katzman testified that the plaintiff's net profit from the sale of home heating oil ranges from seventy to eighty cents per gallon. See Trial Tr. February 4, 2016, pp. 2, 3. Katzman further testified that he calculated the average annual usage of each Vadney customer that was lost to Oyster River and Allstar and then multiplied the gallons from the date each Vadney customer began with Oyster River and/or Allstar through the first day of trial. See Trial Tr. February 4, 2016, pp. 2, 3. Lastly, Kaztman used the range of net profits per gallon to determine the total lost net profit. See Trial Tr. February 4, 2016, p. 11; see also Pl.'s Exhibit 29.
In response, the defendant contended that this evidence was insufficient to establish the plaintiff's lost profits with reasonable certainty. At trial, three different witnesses testified that customer turnover in the home heating and oil business is high because people often switch supplies for better prices. The defendant testified that " there's no loyalty in the oil business" when referring to customers. Trial Tr. February 3, 2016, p. 66. The defendant further testified that " in the old days if you went back to 1979 . . . [customers] stayed with a very high price, because they had excellent service . . . that's how people were back then. [Today there is] no chance they would stay at a high price." Trial Tr. February 3, 2016, p. 66. Katzman testified " So anyone is basically free, and we all understand that. And customers move around all the time." Trial Tr. January 7, 2016, p. 1. Finally, Edward Granfield, the owner of Oyster River, stated that in this line of business " customer turnover is high." Trial Tr. February 3, 2016, p. 40.
The plaintiff's evaluation of loss was based on a series of assumptions, namely, that customers of the defendant would still be customers of the defendant up and to the start of trial. The court finds that such assumptions are not reasonable in light of the testimony of the defendant, Granfield, and Katzman. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 70. All three witnesses have decades of experience in the home heating oil sales and delivery business and have been engaged in the home heating oil sales and delivery business for many years. As stated above, each witness testified that the customer retention rate is low in this type of business. The court finds all three witnesses credible as to the customer turnover rate, given their experience and knowledge of the home heating and oil business. Accordingly, when viewing the evidence as a whole, the court gives more weight to the witnesses' testimony than to the plaintiff's speculative evidence of the evaluation of loss. Whether the witnesses' testimony was credible in light of the evidence was a determination for the trier of fact to make. See, e.g., Kervick v. Silver Hill Hospital, 309 Conn. 688, 717, 72 A.3d 1044 (2013) (" [n]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony"). Therefore, the court finds that the plaintiff's assumption that customers would have continued to be customers of the plaintiff up and to the start of trial is not reasonable in light of the record evidence presented to the court. Accordingly, the court finds that the plaintiff did not present sufficiently accurate and complete evidence for this court to be able to estimate its lost profits with reasonable certainty.
Furthermore, the court finds that while the defendant's conduct was immoral and unethical, his conduct did not constitute a reckless indifference to the plaintiff's rights. Accordingly, the court finds that it is improper to award punitive damages in the present case.
" Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss; it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss." (Citations omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 33. " [P]roof that some damage has been sustained is necessary to [support a cause of action for tortious interference]." W. Prosser, supra, § 129, p. 948. " A major problem with damages of this sort, [however], is whether they can be proved with a reasonable degree of certainty . . . If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant's interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was 'made hypothetical by the very wrong' of the defendant. Sometimes, when the court is convinced that damages have been incurred but the amount cannot be proved with reasonable certainty, it awards nominal damages." Restatement (Second), Torts § 774A, comment (c) (1979).
Accordingly, the court finds that while the damages presented to the court by the plaintiff are speculative, it is within the court's discretion to award nominal damages. In light of the evidence and testimony presented to the court, the court finds that the plaintiff is entitled to nominal damages in the amount of $25,000, plus attorneys fees.
CONCLUSION
Based on the foregoing, the court renders judgment in favor of the plaintiff as to all three.