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SCHIMENTI CONSTRUCTION COMPANY, LLC
v. JOSEPH SCHIMENTI
(AC 44274)
Bright, C. J., and Cradle and Seeley, Js.
Syllabus
The plaintiff construction management firm sought to recover damages from
the defendant, a former employee, for, inter alia, breach of contract and
breach of the covenant of good faith and fair dealing. The plaintiff hired
the defendant in 1998. In 2014, the defendant was promoted and, in
connection therewith, received and signed a promotion letter, which
confirmed his promotion, described the responsibilities, compensation
and benefits of his new position, stated that he remained an at-will
employee, and provided that he was required to execute a nondisclosure
agreement as a condition of his continued employment. The nondisclo-
sure agreement, which the defendant also signed, included a provision
that prohibited him from competing with the plaintiff’s business for the
duration of his employment and for two years following the termination
of his employment. In 2018, the defendant resigned from his employment
with the plaintiff and accepted a position with a competitor construction
company. Thereafter, the plaintiff commenced this action, claiming that
the defendant had breached the nondisclosure agreement. The defendant
filed a motion for summary judgment as to two counts of the plaintiff’s
complaint, claiming that the restrictive covenants set forth in the nondis-
closure agreement were unenforceable because the agreement lacked
consideration. The trial court granted the defendant’s motion, determin-
ing that the nondisclosure agreement was unenforceable for a lack of
consideration, and it denied the plaintiff’s motion for a determination
in favor of an immediate appeal. Thereafter, the plaintiff withdrew the
remaining counts of its complaint, and it appealed to this court. Held
that the trial court erred in granting the defendant’s motion for summary
judgment as there was at least a genuine issue of material fact as to
whether the defendant’s continued employment constituted sufficient
consideration for the nondisclosure agreement: pursuant to Roessler v.
Burwell (119 Conn. 289), which was binding precedent, the continued
employment of an at-will employee could constitute sufficient consider-
ation for the execution of a restrictive covenant, and the Superior Court
decisions that have held to the contrary since that decision either failed
to consider Roessler or distinguished it on the basis of circumstances
that were inapplicable to the present case; moreover, the evidence before
the trial court, when viewed in the light most favorable to the plaintiff,
showed that, by signing the nondisclosure agreement, the plaintiff
received the benefit of the defendant’s services and the benefit of the
restrictive covenant and the defendant received the benefit of continued
employment, as the defendant was an at-will employee who could be
terminated at the plaintiff’s discretion, the promotion letter explicitly
stated that the execution of the nondisclosure agreement was a condition
of the defendant’s continued employment, and the defendant continued
his employment with the plaintiff for four years after executing the
nondisclosure agreement before he voluntarily resigned; furthermore,
the trial court’s reliance on Thoma v. Oxford Performance Materials,
Inc. (153 Conn. App. 50), in granting the defendant’s motion for summary
judgment, was misplaced because the holding in Thoma that continued
employment was insufficient consideration for a restrictive covenant
was limited to the facts of that case and was not inconsistent with, nor
did it undermine, the reasoning of Roessler, as the court in Thoma did
not conclude or suggest that continued employment could not constitute
adequate consideration for a restrictive covenant.
Argued May 10, 2022—officially released January 17, 2023
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 Danbury and transferred
to the judicial district of Hartford, Complex Litigation
Docket, where the court, Moukawsher, J., granted the
defendant’s motion for summary judgment with respect
to certain counts of the complaint; thereafter, the court,
Moukawsher, J., denied the plaintiff’s motion for a writ-
ten determination in favor of an immediate appeal; sub-
sequently, the plaintiff withdrew the remaining counts
of the complaint; judgment for the defendant, from
which the plaintiff appealed to this court. Reversed;
further proceedings.
Robert M. Barrack, with whom, on the brief, was
Peter E. Strniste, Jr., for the appellant (plaintiff).
Lori B. Alexander, with whom, on the brief, was
Stephen P. Rosenberg, for the appellee (defendant).
Opinion
SEELEY, J. The plaintiff, Schimenti Construction
Company, LLC, appeals from the summary judgment
rendered by the trial court in favor of the defendant,
Joseph Schimenti, on counts one and two of its com-
plaint alleging breach of an employment contract and
breach of the covenant of good faith and fair dealing.
On appeal, the plaintiff claims that the court erred in
determining that continued employment of an at-will
employee1 does not constitute consideration for a
restrictive covenant.2 We agree with plaintiff’s claim
and, therefore, reverse the summary judgment rendered
in favor of the defendant and remand the case for fur-
ther proceedings.
The following facts and procedural history, viewed
in the light most favorable to the plaintiff, as the non-
moving party, are relevant to our resolution of this
appeal. See, e.g., DAB Three, LLC v. Fitzpatrick, 215
Conn. App. 835, 837, 283 A.3d 1048 (2022). The plaintiff,
a construction management firm organized and existing
under the laws of the state of New York, with its head-
quarters located in Ridgefield, Connecticut, employs
more than 200 employees. The president and sole owner
of the plaintiff is Matthew Schimenti (Matthew), the
cousin of the defendant.3 The plaintiff employed the
defendant beginning in 1998. On various dates in 2013,
the defendant informed Matthew that he ‘‘wanted more
responsibility and to be involved in the strategic growth
of [the plaintiff] and the overall management’’ and indi-
cated that his ultimate goal included obtaining an own-
ership interest in the plaintiff. Matthew responded that
he would consider creating a new position that included
additional responsibilities and increased compensation
for the defendant but noted that providing him with an
ownership interest ‘‘was not possible at that time
. . . .’’ At the beginning of 2014, the defendant held
the title of project executive4 and received a salary of
$165,000 per year. At some point in January or February,
2014, the defendant was promoted to managing direc-
tor.5
On February 25, 2014, Matthew presented the defen-
dant with two documents, a promotion letter and a
nondisclosure agreement.6 The promotion letter, dated
February 25, 2014, confirmed the defendant’s promo-
tion to managing director, effective February 1, 2014.
This promotion letter described, inter alia, the responsi-
bilities, compensation, and benefits of the new position.
It stated that the defendant’s initial base salary as man-
aging director would start at $165,000 per year and that,
effective August 1, 2014, it would increase to $185,000
per year, provided that he achieved performance objec-
tives and was actively employed with the plaintiff. The
promotion letter further stated that the defendant’s sal-
ary was subject to an annual review, benchmarked on
relevant industry data, and was subject to adjustment
based on an appraisal of the defendant’s work perfor-
mance and the finances of the plaintiff. It also detailed
additional benefits that the defendant would be eligible
for, including fringe benefit plans and an incentive pro-
gram.
The promotion letter further provided in relevant
part: ‘‘This letter will outline the terms and conditions
of [the defendant’s] employment with the [plaintiff]. It
does not create an employment contract between the
[plaintiff] and [the defendant]. [The defendant] shall
at all times be an employee at will of the [plaintiff],
and both [the defendant] and the [plaintiff] may termi-
nate [the defendant’s] employment at any time for any
reason, with or without cause . . . . Nothing con-
tained in this offer constitutes a promise of employment
for any particular duration or [the defendant’s] receipt
of compensation or benefits of any level for any particu-
lar duration.’’ (Emphasis added.) The promotion letter
specifically stated: ‘‘As a condition of your continued
employment by the [plaintiff], you must execute a Non-
Disclosure, Assignment of Developments & Non-Solici-
tation Agreement ([nondisclosure agreement]),’’ which
the promotion letter indicated was attached to it. The
nondisclosure agreement provided in relevant part: ‘‘In
consideration and as a condition of my employment by
[the plaintiff] . . . the [defendant] hereby agrees with
the [plaintiff] as follows . . . .’’ Section one of the non-
disclosure agreement was titled ‘‘Confidentiality of
Information; Developments,’’ section two was titled
‘‘Covenant Not to Compete/Solicit,’’ and section three
was titled ‘‘Miscellaneous.’’ Section two prohibited the
defendant from competing with the plaintiff’s business
for the duration of his employment and for two years
after the termination of his employment.7 In section
three, the nondisclosure agreement provided in relevant
part that ‘‘[t]he [defendant] acknowledges and agrees
that [he] is an ‘employee-at-will’ and this [a]greement
does not create any obligation on the [plaintiff] or any
other person or entity to continue the [defendant’s]
employment or to exploit any [d]evelopments.’’
The promotion letter directed the defendant to sign
and date both the promotion letter and the nondisclo-
sure agreement. It also stated these two documents
contained ‘‘the entire understanding’’ of the defendant’s
employment by the plaintiff. The defendant signed the
nondisclosure agreement on February 28, 2014, and the
promotion letter on March 17, 2014.
Approximately four years later, in March, 2018, the
defendant resigned from his employment with the plain-
tiff and accepted a position at JRM Construction Man-
agement, a construction company in New York City.
The plaintiff commenced this action on June 25, 2018,
claiming that the defendant had breached the nondisclo-
sure agreement. The plaintiff sought both monetary
damages and injunctive relief. Thereafter, the plaintiff
filed an amended complaint (operative complaint) that
contained seven counts.8 Only counts one and two of
the operative complaint, in which the plaintiff alleged
claims of breach of contract and breach of the covenant
of good faith and fair dealing, respectively, are relevant
to this appeal. On March 12, 2019, the defendant filed
a revised answer and special defenses, including that
(1) the covenant not to compete in the nondisclosure
agreement was unreasonable and, thus, unenforceable,
(2) the covenant not to compete was unenforceable
due to the lack of consideration, (3) the covenant not
to compete was unenforceable due to the plaintiff’s
anticipatory breach, and (4) the plaintiff failed to miti-
gate its alleged damages and harm.
On September 20, 2019, the defendant filed a motion
for summary judgment as to counts one and two of the
plaintiff’s operative complaint. The defendant claimed,
inter alia, that the restrictive covenants set forth in the
nondisclosure agreement were unenforceable because
the nondisclosure agreement lacked consideration.9
Specifically, he claimed that ‘‘the only item of value
that [the defendant] arguably received for his [signing
of the nondisclosure agreement] was his continued
employment by [the plaintiff]’’ and that, ‘‘[b]ecause in
this case there was no consideration for the [nondisclo-
sure agreement] beyond [the defendant’s] continued
employment, the [nondisclosure agreement] is unen-
forceable as a matter of law.’’
On October 25, 2019, the plaintiff filed a memoran-
dum of law in opposition to the defendant’s motion for
summary judgment. In addressing the defendant’s claim
of lack of consideration, the plaintiff argued that the
promotion letter provided that the defendant’s elevation
to managing director became ‘‘effective February 1,
2014, that as part of that promotion he would be entitled
to a raise to $185,000 per year (a $20,000 raise) effective
August 1, 2014, and that as a condition of his continued
employment in his new position he would sign the [non-
disclosure agreement].’’ The plaintiff identified the pro-
motion, additional employment responsibilities, and the
promise of the $20,000 raise as consideration for the
nondisclosure agreement. Finally, the plaintiff noted
that Matthew ‘‘ ‘would have never promoted [the defen-
dant] to managing director and provided him with
increased compensation unless he signed [the nondis-
closure agreement].’ ’’
On December 11, 2019, the court issued its memoran-
dum of decision granting the defendant’s motion for
summary judgment with respect to counts one and two
of the operative complaint. At the outset, the court
determined that both the promotion letter and the non-
disclosure agreement were unenforceable due to a lack
of consideration. It then stated that, pursuant to its
interpretation of this court’s decision in Thoma v.
Oxford Performance Materials, Inc., 153 Conn. App.
50, 100 A.3d 917 (2014), ‘‘a party giving nothing more
than the status quo of continuing employment—neither
offering a benefit nor accepting a harm—offers no con-
sideration to exchange for his promise and the promise
is, therefore, unenforceable.’’ In the court’s view, the
restrictions placed on the defendant in the nondisclo-
sure agreement were exchanged for the defendant’s
continued employment, which it concluded did not con-
stitute consideration as a matter of law.
The court further explained that the language of the
promotion letter specifically stated that it did not create
an employment contract and that the defendant remained
an at-will employee. Additionally, in the court’s view,
the promotion letter provided only the possibility of
future raises, bonuses, and salary reviews based on
industry benchmarks. The court reasoned that the non-
disclosure agreement also granted the defendant noth-
ing in exchange for his promises to keep the plaintiff’s
confidences.
On December 27, 2019, the plaintiff filed a motion
for determination in favor of an immediate appeal, pur-
suant to Practice Book § 61-4,10 in which it alleged that
the court’s grant of summary judgment as to counts
one and two of the operative complaint ‘‘presents issues
of such significance to the determination of the final
outcome of the case that it warrants immediate review
. . . .’’ The court denied the plaintiff’s motion on Febru-
ary 19, 2020. Thereafter, on September 1, 2020, the plain-
tiff withdrew the remaining counts of the operative
complaint. This appeal followed. Additional facts will
be set forth as necessary.
On appeal, the plaintiff claims that the court erred
in concluding that continued employment of an at-will
employee does not constitute consideration for the exe-
cution of a restrictive covenant. Specifically, the plain-
tiff argues that the court’s conclusion runs counter to
binding authority holding that continued employment
constitutes consideration for the execution of a restric-
tive covenant by an at-will employee. We agree.
The general principles governing a trial court’s deci-
sion on a motion for summary judgment are well estab-
lished. ‘‘On appeal, [w]e must decide whether the trial
court erred in determining that there was no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. . . . Because
the trial court rendered judgment for the [defendant]
as a matter of law, our review is plenary and we must
decide whether [the trial court’s] conclusions are legally
and logically correct and find support in the facts that
appear in the record. . . . Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered forth-
with if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . A material fact is a fact that will make a
difference in the outcome of the case. . . . Once the
moving party has presented evidence in support of the
motion for summary judgment, the opposing party must
present evidence that demonstrates the existence of
some disputed factual issue. . . . The movant has the
burden of showing the nonexistence of such issues but
the evidence thus presented, if otherwise sufficient, is
not rebutted by the bald statement that an issue of
fact does exist. . . . To oppose a motion for summary
judgment successfully, the nonmovant must recite spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents.’’ (Internal quotation
marks omitted.) Bank of New York Mellon v. Madison,
203 Conn. App. 8, 20–21, 247 A.3d 210 (2021).
‘‘In deciding a motion for summary judgment, [i]ssue-
finding, rather than issue-determination, is the key to
the procedure. . . . [T]he trial court does not sit as
the trier of fact when ruling on a motion for summary
judgment. . . . [Its] function is not to decide issues of
material fact, but rather to determine whether any such
issues exist.’’ (Internal quotation marks omitted.) Doe
v. West Hartford, 168 Conn. App. 354, 375, 147 A.3d
1083 (2016), aff’d, 328 Conn. 172, 177 A.3d 1128 (2018).
Next, we set forth the general legal principles neces-
sary for the resolution of the plaintiff’s appeal, which
require us to determine whether the nondisclosure
agreement could constitute an enforceable contract.
To be enforceable, a contract must be supported by
consideration. Tedesco v. Agolli, 182 Conn. App. 291,
303–304, 189 A.3d 672, cert. denied, 330 Conn. 905, 192
A.3d 427 (2018). ‘‘The doctrine of consideration is funda-
mental in the law of contracts, the general rule being
that in the absence of consideration an executory prom-
ise is unenforceable. . . . Put another way, [u]nder the
law of contract, a promise is generally not enforceable
unless it is supported by consideration. . . . [C]onsid-
eration is [t]hat which is bargained-for by the promisor
and given in exchange for the promise by the promisee
. . . . We also note that [t]he doctrine of consideration
does not require or imply an equal exchange between
the contracting parties. . . . Consideration consists of
a benefit to the party promising, or a loss or detriment
to the party to whom the promise is made.’’ (Internal
quotation marks omitted.) Kinity v. US Bancorp, 212
Conn. App. 791, 829, 277 A.3d 200 (2022); see also Willa-
mette Management Associates, Inc. v. Palczynski, 134
Conn. App. 58, 70, 38 A.3d 1212 (2012). Whether a partic-
ular set of facts constitutes consideration is a question
of law subject to plenary review. Kinity v. US Bancorp,
supra, 830.11 Guided by these general principles, we
next turn to the case law regarding the issue of whether
continued employment can constitute sufficient consid-
eration to support a restrictive covenant.
We begin our analysis with our Supreme Court’s deci-
sion in Roessler v. Burwell, 119 Conn. 289, 176 A. 126
(1934).12 In Roessler, the plaintiff was engaged in the
business of manufacturing delicatessen products and
selling them to retail stores in New Haven county. Id.,
290. In 1926, the defendant began working for the plain-
tiff as a salesman for a weekly salary without a written
agreement. Id. On October 10, 1929, the parties entered
into a written employment agreement. Id. The agree-
ment provided that the plaintiff agreed to employ the
defendant as a salesman ‘‘indefinitely,’’ that the defen-
dant would be compensated ‘‘by such weekly wages as
may be mutually agreed upon between the parties from
time to time,’’ and that, ‘‘in the event the [plaintiff]
should discharge or discontinue the services of the
[defendant] for any cause whatsoever, the [defendant]
would not for a period of one year after severing his
connection with the [plaintiff], call upon, or directly or
indirectly, in any capacity, solicit the same business
from, any of the customers of the [plaintiff] in the local-
ity specified . . . .’’ (Internal quotation marks omit-
ted.) Id., 290–91.13 During his employment, the defen-
dant was paid and accepted different amounts as
weekly wages. Id., 291.
In January, 1934, the defendant voluntarily left his
employment with the plaintiff and began to solicit orders
from the plaintiff’s customers for products similar to
those sold by the plaintiff. Id., 291–92. The defendant
claimed that he was not bound by the solicitation
restriction in his agreement with the plaintiff. Id., 292.
The plaintiff brought an action against the defendant in
which it sought an injunction ‘‘restraining the defendant
from solicitating, canvassing or interfering in any way
with the plaintiff’s customers.’’ Id. The trial court ren-
dered judgment in favor of the plaintiff, ‘‘restraining
the defendant from directly or indirectly calling upon,
soliciting, diverting, or attempting to solicit, divert, or
take away certain customers of the plaintiff . . . .’’ Id.
The defendant appealed, claiming that the written
agreement ‘‘was so vague and uncertain in its terms as
not to constitute a contract, and, therefore, furnished
no basis for the injunctive relief sought.’’ Id.
Our Supreme Court affirmed the judgment of the trial
court. Id., 295. It determined that, although the parties
did not appear to have mutually agreed on the salary
that was to be paid to the defendant, ‘‘the actual pay-
ment of various sums to him from time to time and his
acceptance thereof without objection, constitute[d] an
implied agreement that they were the amounts properly
due [to] him under the terms of the agreement. The
underlying purpose of the defendant in entering into
the agreement was to continue thereafter in the employ-
ment of the plaintiff at a mutually agreeable salary; the
benefit offered him was such a continuance, in return
for which the plaintiff was to receive his services and
the benefit of the restrictive covenant in the agreement.
The defendant received the benefit he sought in that
he was continued in the employment more than four
years after the agreement was made, until he voluntarily
left it. In such a situation . . . [t]hough there be not
mutual promises, yet if, before he calls for the fulfill-
ment of the promise, the promissee do perform that,
in consideration of his doing which the promise is made,
there is consideration for the agreement, and it can
be enforced. . . . The plaintiff, having paid the defen-
dant a weekly salary satisfactory to him, from the time
when the agreement was made, and having continued
the defendant in his employment until he voluntarily
left, has given to the defendant the benefit for which
he bargained, and has, by performance, made certain
that which before was uncertain; the restrictive cove-
nant is in itself sufficiently definite; and after the with-
drawal of the defendant from the plaintiff’s employ-
ment, it was founded upon an adequate consideration
given.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Id., 292–94. Our Supreme
Court agreed with the trial court’s conclusion that con-
sideration, namely, continued employment, existed to
support the nonsolicitation restriction in the written
agreement. Id., 293–94.
In Torrington Creamery, Inc. v. Davenport, 126 Conn.
515, 520, 12 A.2d 780 (1940), our Supreme Court deter-
mined that a restrictive covenant was not ‘‘lacking in
mutuality’’ even though the employer could discharge
the employee at any time. In that case, the plaintiff
employer, The Sunny Valley Corporation, and the defen-
dant employee had a conversation, shortly after March
1, 1938, regarding the possible termination of the defen-
dant’s employment, and ‘‘the defendant suggested that
he had certain plans for the improvement of the busi-
ness and asked if he could attempt, for a period of five
or six months, to carry these plans into effect as a full
time manager.’’ Id., 517. On April 15, 1938, the parties
entered into a contract whereby the defendant would
be employed at a fixed compensation with no specific
term of employment. Id., 517–18. The contract included
a restrictive covenant prohibiting the defendant from
competing with the plaintiff’s business for two years
after termination of employment. Id., 518.
In October, 1938, the plaintiff sold its business to The
Torrington Creamery, and the new owner terminated
the defendant’s employment. Id., 518–19. Thereafter,
the defendant began a business in competition with
The Torrington Creamery, which sought to enforce the
restrictive covenant executed by the defendant. Id., 519.
In upholding the restrictive covenant, the court stated:
‘‘While, under the contract, [the plaintiff] could dis-
charge the defendant at any time, this did not make
the contract one lacking in mutuality as regards the
enforcement of the covenant in question and the [plain-
tiff] was under no obligation as a condition to enforcing
it to offer to continue him in its employ. Roessler v.
Burwell, [supra, 119 Conn. 293].’’ Torrington Cream-
ery, Inc. v. Davenport, supra, 126 Conn. 520.
Decisions from the Superior Court similarly have con-
cluded that continued employment of an at-will employee
provides the necessary consideration for a restrictive
covenant. In RKR Dance Studios, Inc. v. Makowski,
Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX (September 12, 2008) (46 Conn. L. Rptr.
389, 389), the plaintiff employers sought injunctive relief
against the named defendant, a dance instructor. In the
application for a preliminary injunction, the plaintiffs
alleged that the defendant had commenced her employ-
ment as an at-will employee on November 29, 2001, and
had executed a noncompete agreement at that time. Id.
On approximately May 5, 2006, the parties executed a
new, more restrictive noncompete agreement. Id. The
defendant left her employment with the plaintiffs on
September 28, 2007, and, shortly thereafter, began
working for a different dance studio. Id.
In response to the plaintiffs’ application for a prelimi-
nary injunction, the defendant argued that the 2006
noncompete agreement failed due to lack of consider-
ation. Id., 390. The evidence revealed that any employee
who did not sign the 2006 noncompete agreement would
be terminated, and, therefore, ‘‘[t]he issue before the
court . . . is whether . . . [the defendant’s] contin-
ued employment as an at-will employee obviates the
need for overt consideration to support the [2006] non-
compete agreement.’’ Id. After setting forth the general
principles regarding consideration, the court observed
that it was bound by our Supreme Court’s decision in
Roessler v. Burwell, supra, 119 Conn. 289. RKR Dance
Studios, Inc. v. Makowski, supra, 46 Conn. L. Rptr. 390.
Specifically, it relied on the principle that an employee’s
continued employment may form the necessary consid-
eration for a covenant not to compete signed after the
start of employment, at least where the employee would
be discharged, or where he or she actually remained
in the plaintiff’s employment for a substantial time after
the execution of the noncompete agreement. Id., 390–
91. To further support its conclusion, the court, inter
alia, cited to other decisions from the Superior Court.14
Id., 391. Ultimately, it concluded that, ‘‘[i]n light of what
this court considers the binding precedent of Roessler
. . . this court finds adequate consideration to support
the 2006 noncompete covenant, given that the defen-
dant was . . . an at-will employee and then voluntarily
left [her employment] one year and one half after the
agreement was executed.’’ Id., 392; see also Classic
Homemakers, LLC v. Coolidge, Superior Court, judicial
district of Windham, Docket No. CV-XX-XXXXXXX-S (July
28, 2017) (65 Conn. L. Rptr. 6, 7) (‘‘Connecticut law
does not preclude continued employment standing
alone from being deemed adequate consideration to
sustain a covenant not to compete, at least when an
affected employee leaves that employment volunta-
rily’’).15
The defendant points to decisions of the Superior
Court that have concluded that continuing employment
cannot constitute consideration for a restrictive cove-
nant for an at-will employee.16 We agree with the plain-
tiff, however, that ‘‘most of the [Superior Court] deci-
sions indicating [that] the continued employment of an
at-will employee does not constitute consideration for
a restrictive covenant fail to consider Roessler [v. Bur-
well, supra, 119 Conn. 289]. Those that do consider
Roessler distinguish it based on circumstances inappli-
cable to the present case . . . .’’ See Fairfield County
Bank Ins. Services, LLC v. Welsch, Superior Court, judi-
cial district of Danbury, Docket No. CV-XX-XXXXXXX-S
(March 11, 2020) (concluding that continued employ-
ment is inadequate consideration for noncompete
agreement and distinguishing line of cases following
Roessler in which continued employment constitutes
consideration for restrictive covenants on grounds that,
in many of those cases, employee was at will and left
employment voluntarily); J.M. Layton & Co. v. Millar,
Superior Court, judicial district of Ansonia-Milford,
Docket No. CV-XX-XXXXXXX-S (August 9, 2004) (37 Conn.
L. Rptr. 649, 651) (The trial court did not address Roes-
sler but stated that ‘‘[i]t is well settled law in Connecti-
cut . . . that continued employment is not consider-
ation for a covenant not to compete entered into after
the beginning of the employment. . . . In the context
of either non-compete or non-solicit agreements, con-
tinued employment is an inadequate consideration to
support such contracts.’’ (Citation omitted; internal
quotation marks omitted.)); Hoffnagle v. Henderson,
Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX (April 17, 2003) (court stated that ‘‘[i]t
is well established that continued employment, as
opposed to new employment, is not adequate consider-
ation’’ to support noncompete agreement but did not
address Roessler); Cost Management Incentives, Inc.
v. London-Osborne, Superior Court, judicial district of
New Haven, Docket No. CV-XX-XXXXXXX (December 5,
2002) (concluding that continued employment was not
sufficient consideration for restrictive covenants and
distinguishing Roessler by reasoning that, in present
case, ‘‘neither of the defendants voluntarily left their
employment,’’ and, ‘‘[t]herefore, it is the plaintiff itself
which has broken the bargain, or, withdrawn the consid-
eration it cites for the agreements’’).
Some Superior Court cases have cited Van Dyck
Printing Co. v. DiNicola, 43 Conn. Supp. 191, 648 A.2d
898 (1993), aff’d, 231 Conn. 272, 648 A.2d 877 (1994)
(Van Dyck), or Dick v. Dick, 167 Conn. 210, 355 A.2d
110 (1974), to support the proposition that continued
employment is inadequate consideration for a restric-
tive covenant. Both cases are distinguishable from the
present case, and, therefore, we are not persuaded by
the reasoning of the Superior Court decisions that relied
on these cases. In Van Dyck, the plaintiff employer
brought an action against the defendant employee for
breach of a covenant not to compete after the defen-
dant’s employment was terminated. Van Dyck Printing
Co. v. DiNicola, supra, 191. The defendant claimed,
inter alia, that the agreement not to compete was unen-
forceable because he signed it after starting employ-
ment and ‘‘an employee who has already commenced
employment and receives no additional consideration
for signing a covenant not to compete is not subject to
enforcement of the covenant because past consider-
ation cannot support the imposition of a new obligation.
Dick v. Dick [supra, 224].’’ Van Dyck Printing Co. v.
DiNicola, supra, 195. The court explained that ‘‘[t]his
general proposition is not, however, applicable to the
situation presented’’ because when the defendant began
working for the plaintiff, there was no completed
employment contract in place. Id., 195–96. At the start of
the defendant’s employment, the agreement contained
neither the defendant’s precise compensation rate nor
the nature of the ‘‘ ‘protection’ ’’ obtained by the plaintiff
for entrusting the sales role to the defendant. Id., 196.
The court ultimately concluded that there existed suffi-
cient consideration to support the restrictive cove-
nant. Id.
Our Supreme Court in Dick v. Dick, supra, 167 Conn.
223–24, applied New York law to determine whether a
contract made between the parties was supported by
consideration. In dicta, the court stated: ‘‘[I]t is obvious
that, if the contract were to be governed by Connecticut
law, it would not be valid in that the consideration is
past consideration which will not support a promise.’’
(Internal quotation marks omitted.) Id., 224. Notably,
that case did not involve at-will employment or a deter-
mination as to whether continued employment consti-
tuted consideration. Rather, the claimed consideration
was a sum of money alleged to have been paid to the
defendant in addition to the plaintiff’s forbearance from
suing the defendant. Id., 223. Dick, therefore, is inappli-
cable to the facts and circumstances of the present case.
We conclude that Roessler is applicable to the facts
and circumstances of the present case. Its holding that
consideration in the form of continued employment for
at-will employees can be sufficient to make enforceable
a restrictive covenant agreed to by the parties at some
point after the commencement of employment remains
binding precedent. Further, the facts of the present case
are similar to those found in Roessler. The parties do
not dispute that the defendant was an at-will employee
both before and after signing the nondisclosure agree-
ment and that he voluntarily left the employ of the
plaintiff and joined a competitor approximately four
years after signing the nondisclosure agreement and
the promotion letter. Because he was an at-will
employee, the defendant’s employment could be termi-
nated at the plaintiff’s discretion, and, therefore, the
defendant’s continued employment could constitute
consideration for the promotion letter and the nondis-
closure agreement. Furthermore, the promotion letter
explicitly stated that the defendant’s execution of the
nondisclosure agreement was ‘‘a condition of [his] con-
tinued employment by the [plaintiff] . . . .’’ Thus, the
evidence before the trial court, viewed in the light most
favorable to the plaintiff, showed that, by signing the
nondisclosure agreement, the plaintiff received the ben-
efit of the defendant’s services and the benefit of the
restrictive covenant and the defendant received the ben-
efit of continued employment. See Roessler v. Burwell,
supra, 119 Conn. 293. Because Roessler applies, as an
intermediate appellate court, we are bound by control-
ling precedent from our Supreme Court. See State v.
Madera, 160 Conn. App. 851, 861–62, 125 A.3d 1071
(2015). We conclude, therefore, that there is at least
a genuine issue of material fact that the defendant’s
continued employment alone was sufficient consider-
ation to support the nondisclosure agreement.
Additionally, we disagree with the trial court’s reli-
ance on this court’s decision in Thoma v. Oxford Perfor-
mance Materials, Inc., supra, 153 Conn. App. 50, to
support its determination that continued employment
of an at-will employee cannot, as a matter of law, consti-
tute consideration for a restrictive covenant signed after
the starting date of employment. In Thoma, the plaintiff
employee was hired in February, 2003, by the defendant,
a manufacturer of high performance polymers. Id., 52.
In May or June, 2006, the defendant pursued new financ-
ing, and one investor requested that certain employees
execute employment contracts to ensure continuity. Id.
As a result, the plaintiff entered into an employment
agreement with the defendant on June 12, 2006. Id. The
agreement set forth the plaintiff’s annual salary and
benefits, created a twenty-four month employment
period, subject to an automatic renewal for additional
twelve month terms, provided that the defendant could
terminate her employment without cause with sixty
days notice, and, in the event of such termination, the
defendant was required to pay the plaintiff all accrued
and unpaid compensation, plus her base salary for a
period of time. Id. Finally, the plaintiff was prohibited
from seeking employment with a competitor of the
defendant during her employment with the defendant
and for six months after her employment had ended.
Id., 52–53.
A second employment agreement, executed on June
20, 2006, altered the terms of the first agreement, so as
to render the plaintiff an at-will employee, and elimi-
nated the defendant’s posttermination compensation
obligation. Id., 53–54. The defendant terminated the
plaintiff’s employment on November 20, 2007. Id., 54.
The plaintiff then commenced an action sounding in
breach of contract and fraud. Id. The trial court deter-
mined that the first agreement was valid and supported
by consideration but that the second agreement lacked
consideration, and, therefore, the terms of the first
agreement applied. Id., 54–55.
On appeal, the defendant contended that the court
improperly had concluded that the second agreement
was not supported by consideration. Id., 55. Specifi-
cally, it claimed, inter alia, that the elimination of the
plaintiff’s six month noncompete clause and her increased
chance for continued employment served as consider-
ation to support the second agreement. Id. In rejecting
the defendant’s first claim, this court noted that the trial
court had concluded that it was ambiguous whether
the noncompetition clause in the second agreement
continued indefinitely or ended at the time of the termi-
nation of the plaintiff’s employment. Id., 57. ‘‘Here, § 1.1
[of the second agreement] provided an indefinite non-
competition duration and specifically cross-referenced
§ 1.2 [of the second agreement], which provided a time
frame limited to the plaintiff’s employment. . . .
Therefore, the language in each clause of the noncom-
petition restriction was not sufficiently clear for the
court to reconcile them.’’ (Citation omitted.) Id., 61.
The trial court applied the rules of contract interpreta-
tion and determined that, in the second agreement,
‘‘ ‘the plaintiff lost her rights to termination pay and
gained nothing in return.’ ’’ Id., 57. This court agreed
with the analysis and determined that, under these facts
and circumstances, the court properly found that the
ambiguous noncompetition restriction, which still
could restrict the plaintiff’s postemployment activities,
did not constitute consideration to support the second
agreement. Id., 65.
The defendant next claimed that the court improperly
had concluded that the plaintiff’s improved chances for
continued employment did not constitute consideration
for the second agreement. The court reasoned: ‘‘The
[second] agreement clearly interferes with the plaintiff’s
rights as promised in the [first] agreement in that it
eliminates the plaintiff’s contractual right to collect
termination compensation. . . . [T]here must be valid
and adequate consideration for the less advantageous
terms of employment contained in the [second] agree-
ment, other than continued employment of the plain-
tiff.’’ (Emphasis added; internal quotation marks omit-
ted.) Id. This court agreed that the facts supported the
court’s determination that the financing sought by the
defendant was not dependent on the execution of the
second employment agreement. Id., 66. ‘‘Consequently,
the record supports the court’s conclusion that the
defendant’s financing and the plaintiff’s continued
employment were not predicated on the second agree-
ment’s execution. As a result, the court reasonably
concluded that the plaintiff’s continued employment,
for which the first agreement already provided, did not
constitute valid consideration to support the second
agreement. See Brian Construction & Development Co.
v. Brighenti, 176 Conn. 162, 166, 405 A.2d 72 (1978)
(when a party agrees to perform an obligation for
another to whom that obligation is already owed, although
for lesser renumeration, the second agreement does
not constitute a valid, binding contract).’’ (Emphasis
added; footnote omitted; internal quotation marks omit-
ted.) Thoma v. Oxford Performance Materials, Inc.,
supra, 153 Conn. App. 66–67. Thus, this court’s decision
in Thoma was limited to the facts of that case, specifi-
cally to the court’s findings after a trial that the second
agreement eliminated the plaintiff’s contractual right
to severance pay and that the plaintiff’s continued
employment was not predicated on execution of the
second agreement. See id. The court in no way con-
cluded or even suggested that continued employment
cannot, as a matter of law, constitute adequate consider-
ation for a restrictive covenant. Consequently, the hold-
ing in Thoma is neither inconsistent with nor under-
mines the reasoning of Roessler v. Burwell, supra, 119
Conn. 289. Accordingly, we conclude that the trial
court’s reliance on Thoma in granting the defendant’s
motion for summary judgment was misplaced. This is
especially true given that the plaintiff in the present case
presented evidence that execution of the nondisclosure
agreement was a condition of the defendant’s continued
employment, and the court was required to view that
evidence in the light most favorable to the plaintiff
when ruling on the defendant’s motion.
On the basis of the evidence before the trial court
and the procedural posture of the present case, and
mindful of our Supreme Court’s decision in Roessler,
we conclude that there is at least a genuine issue of
material fact as to whether the defendant’s continued
employment constituted consideration for the nondis-
closure agreement. The plaintiff presented evidence in
opposition to the defendant’s motion for summary judg-
ment that the defendant was an at-will employee both
prior to and after being promoted to managing director
and executing the nondisclosure agreement. Because
he was an at-will employee, the defendant’s employ-
ment could have been terminated by the plaintiff at any
time, and, thus, the defendant’s continued employment
could constitute sufficient consideration to support the
nondisclosure agreement. Additionally, the defendant
voluntarily resigned from his employment with the
plaintiff four years after executing the nondisclosure
agreement. At trial, as the plaintiff did in Thoma, the
defendant may present evidence that there was no con-
nection between the nondisclosure agreement and his
continued employment; but, if connected, continued
employment can be sufficient consideration for a
restrictive covenant. Accordingly, we conclude that the
court erred in granting the defendant’s motion for sum-
mary judgment on the basis that the nondisclosure
agreement was unenforceable because, as a matter of
law, it lacked consideration.17
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion for sum-
mary judgment and for further proceedings in accor-
dance with this opinion.
In this opinion the other judges concurred.
1
As a general matter, at-will employment is terminable by either the
employee or the employer and does not require cause. See, e.g., Thibodeau
v. Design Group One Architects, LLC, 260 Conn. 691, 697–98, 802 A.2d
731 (2002).
2
The plaintiff also claims that the court improperly failed (1) to find that
genuine issues of material fact exist as to whether the defendant’s promotion
and other benefits constituted consideration to support the restrictive cove-
nant, and (2) to consider evidence extrinsic to the nondisclosure agreement
and promotion letter at issue, which demonstrated that the defendant
received a raise, bonuses and other valuable benefits in exchange for the
restrictive covenant. As to the former, we agree with the plaintiff. See
footnote 17 of this opinion. As to the latter, because of our conclusion that
the court improperly rendered summary judgment in favor of the defendant,
we need not address the plaintiff’s claim.
3
The plaintiff was formed in 1994 and specializes in building retail, com-
mercial, entertainment, hospitality, corporate office space, banks, and other
construction projects in the Northeast and in California.
4
A project executive is responsible for overseeing a group of project
managers and reports directly to Matthew.
5
The position of managing director had not existed until the defendant’s
promotion in 2014. The responsibilities of this new position included ‘‘over-
seeing all of the [p]roject [e]xecutives, and executing the strategic direction
of the [plaintiff]. [The defendant’s] responsibilities would also include imple-
menting and championing strategic initiatives.’’
6
Although the defendant acknowledged receiving the nondisclosure agree-
ment in late February, 2014, and the record reveals that he signed that
document on February 28, 2014, he claimed that he was not provided with
a copy of the promotion letter until approximately March 14, 2014, which
he signed on March 17, 2014. As we previously have noted, we view the
record in the light most favorable to the plaintiff, as the nonmoving party.
See DAB Three, LLC v. Fitzpatrick, supra, 215 Conn. App. 837.
7
Section two of the nondisclosure agreement provides: ‘‘A. For so long
as the [defendant] is employed by the [plaintiff] and for a period of twenty-
four (24) months after the termination of such employment for any reason
whatsoever, the [defendant] shall not, directly or indirectly, through or on
behalf of any other person or entity, whether individually or in conjunction
with any other person, or as an employee, agent, consultant, representative,
or holder of any interest in any other person or entity or in any other capacity
whatsoever: (i) solicit or accept construction business from any Client
(whether as a general contractor, construction manager, subcontractor or
otherwise) or perform any of the services performed or provided by the
[plaintiff] for any Client; (ii) solicit, recruit or hire any employee of the
[plaintiff] to work for a third party other than the [plaintiff] or engage in
any activity that would cause any employee to violate any agreement with
the [plaintiff] (or do any of the foregoing with respect to any former employee
of the [plaintiff] until twelve (12) months after the date such employee has
otherwise ceased performing any services for the [plaintiff]); (iii) induce or
influence, or seek to induce or influence, any Client or any other person or
entity which has a business relationship with the [plaintiff] (each a ‘Business
Affiliate’) to withdraw, terminate or curtail its relationship with the [plaintiff]
or to use the services of any competitor of the [plaintiff]; and/or (iv) make
any disparaging comment about the [plaintiff], or any of its officers, members
or employees, to any present, past or prospective Business Affiliate of
the [plaintiff].
‘‘B. So long as the [defendant] is employed by the [plaintiff], the [defendant]
will not undertake the planning or organization of any business activity
competitive with the business of the [plaintiff].’’
8
The operative complaint alleged claims of breach of contract, breach of
the covenant of good faith and fair dealing, breach of fiduciary duty, tortious
interference with contractual relations with employees, tortious interference
with business relations with clients and business contacts, unjust enrich-
ment, and violation of the Connecticut Uniform Trade Secrets Act, General
Statutes § 35-50 et seq.
9
In his motion for summary judgment, the defendant also argued that (1)
the restrictive covenants were unreasonably overbroad, and (2) the plaintiff
materially breached the promotion letter. As to the former, the defendant
argued that he was the only employee of the plaintiff required to enter into
such an agreement. He further contended that the nondisclosure agreement
was unreasonable as to the protection afforded to the plaintiff, the degree
of restraint placed on the defendant’s ability to pursue his occupation,
and the scope of the nonsolicitation provision. See, e.g., National Waste
Associates, LLC v. Scharf, 183 Conn. App. 734, 745–46, 194 A.3d 1 (2018)
(setting forth five factor test to evaluate reasonableness of restrictive cove-
nant). As to the latter, the defendant claimed that the plaintiff had materially
breached the promotion letter by not reviewing the defendant’s performance
or salary and, as a result, that he was excused from performing any of his
contractual obligations.
In its memorandum of decision, the court determined that genuine issues
of material fact existed regarding the reasonableness of the defendant being
the only employee required to sign a nondisclosure agreement, the terms
that required the defendant to ‘‘stay away’’ from the plaintiff’s clients and
employees for a period of twenty-four months following the termination of
the defendant’s employment, and the confidentiality provisions. The court
did not address, specifically, the defendant’s claim of material breach by
the plaintiff.
In his appellate brief, the defendant summarily claims that he ‘‘submitted
evidence establishing that the restrictive covenants . . . are unenforceable,
because they are unreasonable’’ and that ‘‘the record evidence establishes
that the [nondisclosure] [a]greement is also unenforceable because [the
plaintiff] materially breached its alleged promise . . . that [the defendant’s]
salary would be reviewed annually and benchmarked accordingly . . . .’’
(Internal quotation marks omitted.) He argues that this court should affirm
the judgment on these alternative grounds. In its reply brief, the plaintiff
contends, inter alia, that ‘‘these purported additional grounds for affirmance
should not be considered because they are inadequately briefed . . . with
no actual argument,’’ have minimal citation to the record or to legal authority,
and are devoid of any analysis. We agree that the cursory arguments
advanced by the defendant as alternative grounds to affirm the summary
judgment rendered by the trial court are briefed inadequately, and, therefore,
we decline to consider them. See Parnoff v. Stratford, 216 Conn. App. 491,
506, A.3d (2022) (this court is not required to review issues that
are improperly presented through inadequate brief and such issues are
deemed abandoned).
10
Practice Book § 61-4 (a) provides in relevant part: ‘‘This section applies
to a trial court judgment that disposes of at least one cause of action where
the judgment does not dispose of . . . an entire complaint . . . . If the
order sought to be appealed does not meet these exact criteria, the trial
court is without authority to make the determination necessary to the order’s
being immediately appealed. . . .
‘‘When the trial court renders a judgment to which this section applies,
such judgment shall not ordinarily constitute an appealable final judgment.
Such a judgment shall be considered an appealable final judgment only if
the trial court makes a written determination that the issues resolved by
the judgment are of such significance to the determination of the outcome
of the case that the delay incident to the appeal would be justified, and the
chief justice or chief judge of the court having appellate jurisdiction concurs.
‘‘If the procedure outlined in this section is followed, such judgment
shall be an appealable final judgment, regardless of whether judgment was
rendered . . . by summary judgment pursuant to Section 17-44 . . . .’’
(Citations omitted; emphasis omitted.)
11
We note that ‘‘[w]hether an agreement is supported by consideration is
a factual inquiry reserved for the trier of fact and subject to review under
the clearly erroneous standard.’’ (Internal quotation marks omitted.) Kinity
v. US Bancorp, supra, 212 Conn. App. 830; see also Thoma v. Oxford Perfor-
mance Materials, Inc., supra, 153 Conn. App. 66 (‘‘the record supports the
court’s conclusion that the defendant’s financing and the plaintiff’s continued
employment were not predicated on the second agreement’s execution’’);
Sullo Investments, LLC v. Moreau, 151 Conn. App. 372, 384, 95 A.3d 1144
(2014) (‘‘we conclude that the trial court did not err in holding that the
consideration underlying the note was the benefit that [the defendant]
received in helping [the plaintiff]’’ (emphasis added)). In the present case,
we need decide only whether the legal definition of consideration can include
continued employment and whether a genuine issue of material fact exists.
Answering those questions in the affirmative, we leave the determination
of whether continued employment constituted consideration in this case to
the trial court on remand.
12
In the motion for a determination in favor of immediate appealability,
the plaintiff challenged the court’s interpretation of Thoma v. Oxford Perfor-
mance Materials, Inc., supra, 153 Conn. App. 50, and also cited to our
Supreme Court’s decision in Roessler v. Burwell, supra, 119 Conn. 289, which
we discuss in greater detail. Although the plaintiff did not cite specifically
to Roessler in its opposition to the defendant’s motion for summary judgment
or at the hearing, we note that this is not an instance in which a party has
raised on appeal an entirely new and separate theory of liability that was
mentioned only in passing during oral argument before the trial court. Cf.
White v. Mazda Motor of America, Inc., 313 Conn. 610, 631–32, 99 A.3d
1079 (2014). Rather, although the plaintiff, in opposition to the defendant’s
motion for summary judgment, argued that the promotion letter and the
nondisclosure agreement were supported by consideration in addition to
continued employment, it specifically argued in its motion pursuant to Prac-
tice Book § 61-4, relying on Roessler, that continued employment was suffi-
cient consideration for the nondisclosure agreement. The defendant filed an
opposition to the plaintiff’s motion for determination in favor of immediate
appealability on January 17, 2020, but he did not assert that the plaintiff’s
reliance on Roessler was improper. Furthermore, the court expressly
addressed the applicability of Roessler in its decision denying the plaintiff’s
§ 61-4 motion.
Consequently, the plaintiff distinctly raised Roessler and the issue of
continued employment as consideration before the court, and the court
addressed the issue and specifically addressed Roessler, albeit in a proceed-
ing subsequent to the granting of the defendant’s motion for summary judg-
ment. The plaintiff also has relied extensively on Roessler in its appellate
brief. Mindful that the present appeal involves a motion for summary judg-
ment, which in turn involves our plenary review of whether a genuine issue
of material fact exists and whether the moving party is entitled to judgment
as a matter of law; see Walker v. Lombardo, 2 Conn. App. 266, 269, 477 A.2d
168 (1984); we conclude that the plaintiff’s arguments regarding Roessler
and whether continued employment, as a matter of law, can be sufficient
consideration for a restrictive covenant properly are before this court.
13
In distinguishing Roessler from the present case, the trial court con-
cluded that the defendant in Roessler did receive consideration beyond
continued employment—‘‘lifetime employment’’—when he entered into the
written employment agreement. We disagree with the trial court’s reading
of Roessler. The agreement at issue in Roessler did not provide the defendant
with lifetime employment; it provided only that he would be employed
‘‘indefinitely’’ and could be discharged ‘‘for any cause whatsoever . . . .’’
(Internal quotation marks omitted.) Roessler v. Burwell, supra, 119 Conn.
290–91. An indeterminate term of employment terminable for any reason
is, essentially, the definition of at-will employment. See, e.g., Thibodeau v.
Design Group One Architects, LLC, 260 Conn. 691, 697–98, 802 A.2d 731
(2002) (‘‘ ‘[e]mployment at will grants both parties the right to terminate
the relationship for any reason, or no reason, at any time without fear of
legal liability’ ’’).
14
See, e.g., Piscitelli v. Pepe, Superior Court, judicial district of New
Haven, Docket No. CV-XX-XXXXXXX-S (November 5, 2004) (38 Conn. L. Rptr.
219); NewInno, Inc. v. Peregrim Development, Inc., Superior Court, judicial
district of Fairfield, Docket No. CV-XX-XXXXXXX-S (December 3, 2002); R &
C Livolsi, Inc. v. Campanelli, Superior Court, judicial district of New Haven
at Meriden, Docket No. CV-XX-XXXXXXX-S (October 8, 1997); Daniel V. Keane
Agency, Inc. v. Butterworth, Superior Court, judicial district of Fairfield,
Docket No. 313181 (February 22, 1995); Russo Associates, Inc. v. Cachina,
Superior Court, judicial district of Fairfield, Docket No. 276910 (January
27, 1995) (13 Conn. L. Rptr. 408); Nurotocco of Mass., Inc. v. Kudlach,
Superior Court, judicial district of Hartford-New Britain, Docket No. CV-92-
0453323-S (October 6, 1993).
Additionally, the plaintiff directs us to additional decisions from the Supe-
rior Court that have held that continued employment is adequate consider-
ation to support a restrictive covenant. See, e.g., Grose v. Didi, LLC, Superior
Court, judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S (April 11,
2018) (66 Conn. L. Rptr. 293); DelVecchio Reporting Services, LLC v.
Edwards, Superior Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX-S (July 13, 2017); Discoverytel SPC, Inc. v. Pinho, Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-S (October 14, 2010);
Blum, Shapiro & Co., P.C. v. Searles & Houser, LLC, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S (August 11, 1999); Lester
Telemarketing v. Pagliaro, Superior Court, judicial district of New Haven,
Docket No. CV-XX-XXXXXXX-S (September 3, 1998) (23 Conn. L. Rptr. 21).
15
Federal case law supports the conclusion that continued employment
may constitute consideration in this context. In MacDermid, Inc. v. Selle,
535 F. Supp. 2d 308, 316 (D. Conn. 2008), the United States District Court
for the District of Connecticut stated: ‘‘[T]he Connecticut Supreme Court
has long recognized that continued employment may suffice as adequate
consideration to support a covenant in an at-will employment relationship.’’
See also United Rentals, Inc. v. Distefano, United States District Court,
Docket No. 09-CV-958 (PCD) (D. Conn. November 10, 2009); Home Funding
Group, LLC v. Kochmann, United States District Court, Docket No.
3:06CV1234 (HBF) (D. Conn. June 7, 2007); United Rentals, Inc. v. Bastanzi,
United States District Court, Docket No. 3:05CV596 (RNC) (D. Conn. Decem-
ber 22, 2005); Sartor v. Manchester, 312 F. Supp. 2d 238, 245 (D. Conn.
2004); Weseley Software Development Corp. v. Burdette, 977 F. Supp. 137,
144 (D. Conn. 1997).
Additionally, courts across the country likewise have determined that
continued employment may serve as consideration in this context. See, e.g.,
Condelles v. Alabama Telecasters, Inc., 530 So. 2d 201, 204 (Ala. 1988);
Lucht’s Concrete Pumping, Inc. v. Horner, 255 P.3d 1058, 1059–60 (Colo.
2011); Breed v. National Credit Assn., Inc., 211 Ga. 629, 632–33, 88 S.E.2d
15 (1955); Ins. Associates Corp. v. Hansen, 111 Idaho 206, 207–208, 723
P.2d 190 (App. 1986); Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d 311,
314–15, 657 P.2d 589 (1983); QIS, Inc. v. Industrial Quality Control, Inc.,
262 Mich. App. 592, 594, 686 N.W.2d 788 (2004), appeal denied, 472 Mich.
872, 693 N.W.2d 814 (2005); Smith, Batchelder & Rugg v. Foster, 119 N.H.
679, 683, 406 A.2d 1310 (1979); Zellner v. Stephen D. Conrad, M.D., P.C.,
183 App. Div. 2d 250, 255–56, 589 N.Y.S.2d 903 (1992); Lake Land Employ-
ment Group of Akron, LLC v. Columber, 101 Ohio St. 3d 242, 245–48, 804
N.E.2d 27 (2004); Summits 7, Inc. v. Kelly, 178 Vt. 396, 400–404, 886 A.2d
365 (2005). In explaining the reasoning for this approach, the Wisconsin
Supreme Court, in Runzheimer International, Ltd. v. Friedlen, 362 Wis. 2d
100, 862 N.W.2d 879 (2015), stated: ‘‘Jurisdictions that rule forbearance of
the right to terminate an at-will employee is lawful consideration . . . typi-
cally reason that employees are obtaining the expectation of continued
employment, which is not worthless or illusory. The American Law Institute
embraces this [majority] view.’’ (Footnote omitted.) Id., 119. The court deter-
mined that, in Wisconsin, ‘‘[f]orbearance in exercising a legal right is valid
consideration’’; (internal quotation marks omitted) id., 120; and, therefore,
promising not to fire an existing at-will employee in exchange for the
employee immediately signing a restrictive covenant was a valid example
of forbearance in exercising a legal right. Id., 120–24. It further determined
that the court ‘‘repeatedly recognized the existence of lawful consideration
in the inverse situation—when an at-will employee continues working for
the employer in exchange for a modification or addition to the employment
agreement. In these situations, the employer is not getting additional consid-
eration for the employee’s continued employment, and, in the absence of
an employment contract, the employee is still free to leave in the future.’’
(Footnote omitted; internal quotation marks omitted.) Id., 122–23. The court
also noted that this view ‘‘avoids the temptation for employers to circumvent
the law. If we were to hold that consideration beyond continued employment
is necessary in cases like this, an employer might simply fire an existing
at-will employee and then re-hire the employee the next day with a covenant
not to compete.’’ Id., 123.
In contrast, other states have adopted the minority approach, holding that
continued employment does not constitute consideration for a restrictive
covenant. For example, the Minnesota Supreme Court, in Davies & Davies
Agency, Inc. v. Davies, 298 N.W.2d 127, 130 (Minn. 1980), explained that
‘‘cases which have held that continued employment is not a sufficient consid-
eration stress the fact that an employee frequently has no bargaining power
once he is employed and can easily be coerced. By signing a noncompetition
agreement, the employee gets no more from his employer than he already
has, and in such cases there is a danger that an employer does not need
protection for his investment in the employee but instead seeks to impose
barriers to prevent an employee from securing a better job elsewhere.’’ See
also Hejl v. Hood, Hargett & Associates, Inc., 196 N.C. App. 299, 304–305,
674 S.E.2d 425 (2009) (restrictive covenant entered into after already existing
employment relationship must be supported by new consideration); Socko
v. Mid-Atlantic Systems of CPA, Inc., 633 Pa. 555, 570, 126 A.3d 1266 (2015)
(same); Labriola v. Pollard Group, Inc., 152 Wn. 2d 828, 834–36, 100 P.3d
791 (2004) (noncompete agreement entered into after employment must be
supported by independent consideration, such as increased wages, promo-
tion, bonus, fixed term of employment or, perhaps, access to protected
information; continued employment alone is insufficient).
16
See, e.g., Classic Homemakers, LLC v. Coolidge, supra, 65 Conn. L.
Rptr. 7 (decisions of Superior Court between 1985 and 2008 go ‘‘both ways’’
on whether continued employment constitutes consideration for at-will
employee in context of restrictive covenant).
17
The plaintiff also claims that, even if continued employment is not
sufficient consideration for a restrictive covenant, there is still a genuine
issue of material fact as to whether the promotion, and its corresponding
financial benefits and additional employment opportunities for the defen-
dant, constituted sufficient consideration to support the nondisclosure
agreement, and, therefore, the court erred in determining that no such
consideration existed. We agree with the plaintiff. See, e.g., A.H. Harris &
Sons, Inc. v. Naso, 94 F. Supp. 3d 280, 292–93 (D. Conn. 2015); Weseley
Software Development Corp. v. Burdette, 977 F. Supp. 137, 144 (D. Conn.
1997); Van Dyck Printing Co. v. DiNicola, supra, 43 Conn. Supp. 195–96.
We emphasize that the terms of the promotion letter required the defendant
to sign the nondisclosure agreement. Additionally, we note that the defen-
dant signed the nondisclosure agreement and the promotion letter suffi-
ciently contemporaneous with the effective date of the promotion, such
that a genuine issue of material fact exists as to whether the promotion
constituted additional consideration for the nondisclosure agreement. See
Home Funding Group, LLC v. Kochmann, United States District Court,
Docket No. 3:06CV1234 (HBF) (D. Conn. June 7, 2007). We need not address
this claim further in light of our conclusion that the court incorrectly granted
summary judgment on the basis that the restrictive covenant was unenforce-
able because it lacked consideration.