Crosskey Architects, LLC v. POKO Partners, LLC

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CROSSKEY ARCHITECTS, LLC v. POKO
PARTNERS, LLC, ET AL.
(AC 40693)
DiPentima, C. J., and Keller and Olear, Js.

Syllabus

The plaintiff, an architectural firm owned by a licensed architect, C, sought
to recover damages from the defendants for the unpaid work it had
performed on four projects. The plaintiff alleged claims for breach of
contract, quantum meruit and unjust enrichment regarding each of the
four projects, and sought to pierce the corporate veil. C had a business
relationship with K and the defendant R, who together oversaw the
defendant business entities and owned the majority interest in nearly
all of them. K and R managed their business entities by having the
businesses owned by one limited liability company while being managed
and controlled by another, and at the top of that corporate structure
were the defendants P Co. and M Co. The trial court noted that K
rationalized his refusal to pay the plaintiff for architectural services
rendered for two of the projects, including a certain reservoir project,
by claiming that the plaintiff was working ‘‘on spec’’ or without compen-
sation for its services unless and until the projects were ultimately
approved for funding. The court found, however, that there was no
credible evidence that the plaintiff or C agreed to that arrangement.
The court rendered judgment in part in favor of the plaintiff and found
in favor of the plaintiff on three of its claims for breach of contract, as
well as on its claim for quantum meruit as to the reservoir project. The
trial court also pierced the corporate veil, holding K and R personally
liable for damages awarded on each count found in favor of the plaintiff,
and awarded prejudgment interest pursuant to statute (§ 37-3a) on all
the damages. On the defendants’ appeal to this court, held:
1. The defendants could not prevail on their claim that the trial court improp-
erly pierced the corporate veil and held K and R personally liable under
the identity rule, which was based on their claim that the court improp-
erly found that the identity test was satisfied based solely on its finding
that K and R controlled the defendant business entities and failed to
examine issues of unity of interest and corporate independence: the
defendants mischaracterized the trial court’s decision and failed to show
that the court misapplied the identity theory, as the court properly
examined control in addition to other factors, cited the correct law
regarding the identity theory, found facts in support of the identity
theory, and concluded that the plaintiff had proven it was entitled to
compensation under the identity rule; moreover, the defendants’ claim
that the plaintiff presented no evidence to support the identity rule was
unavailing, as the court’s factual findings, including that P Co. and M
Co. were the locus of power for the overall organization through which
K and R maintained virtually unchecked power and control, supported
the notion that the real actors were K and R, who controlled the defen-
dant business entities as one enterprise while improperly using the
corporate form to their benefit and to the detriment of legitimate credi-
tors; furthermore, the defendants could not prevail on their claim that
the trial court failed to properly consider whether the defendant business
entities served a legitimate business purpose, as the circumstances nec-
essary for piercing the corporate veil vary according to each case and
the lack of a legitimate business purpose is not a necessary component
of the identity test but, rather, is an example of the exceptional circum-
stances under which the veil could be pierced.
2. The defendants could not prevail on their claim that the trial court improp-
erly found that the plaintiff was entitled to damages on the theory of
quantum meruit as to the reservoir project, which was based on their
claim that the plaintiff’s schematic plans only made possible an opportu-
nity to incur a benefit in the future, and that because the reservoir
project did not go forward, the defendants did not incur that future
benefit and, instead, lost money; the trial court found credible the evi-
dence that the plaintiff was not working ‘‘on spec,’’ and this court would
not second-guess this determination, and even though the defendants
did not receive an economic gain from the outcome of the reservoir
project itself, under the equitable doctrine of quantum meruit, a defen-
dant that obtains the services requested receives a benefit, and there
was sufficient evidence for the trial court properly to determine that
the defendants derived a benefit from the services provided by the
plaintiff, as the court found an implied in fact contract and determined
that the plaintiff performed architectural services as requested under
the first phase of the unsigned contract.
3. The defendants could not prevail on their claim that the trial court improp-
erly calculated the amount of damages because no factual support
existed in the record for the value of the benefit, which was based on
their claim that K stated in his deposition testimony that the plaintiff’s
services were provided ‘‘on spec,’’ that the defendants did not express
any willingness to pay the plaintiff the price on its reservoir project
invoice, and that the court found that no contract existed; the trial
court did not find credible K’s testimony that the plaintiff was providing
services ‘‘on spec’’ but, instead, found that K accepted the terms of the
contract by his conduct, that K was fully aware that he had an obligation
to pay for services, and that the parties had an implied in fact contract,
and the court’s factual findings were supported by evidence from the
record, including the unsigned written contract, invoices, and the testi-
mony of witnesses for the plaintiff and the defendants, and provided a
sufficient basis for the court to determine that the contract price, as
expressed in the unenforceable contract, for the services rendered con-
stitutes the measure of the value of the benefit to the defendants.
4. The defendants’ claim that the trial court lacked the discretion to award
statutory prejudgment interest pursuant to § 37-3a on the plaintiff’s claim
for quantum meruit as to the reservoir project was unavailing, as an
award for damages under the doctrine of quantum meruit falls within
the scope of § 37-3a: this court previously has declined to create a rule
disallowing interest under § 37-3a in an action seeking damages for
unjust enrichment, and the defendants have not provided a compelling
argument for disallowing statutory prejudgment interest in an action
seeking damages in quantum meruit, as there is no reasonable distinction
between claims sounding in unjust enrichment and those sounding in
quantum meruit for purposes of § 37-3a; moreover, the trial court did
not abuse its discretion in awarding prejudgment interest under the
facts of the present case, as the court’s findings as to the reservoir
project supported a conclusion that the money was due and payable
pursuant to the unsigned contract, the amount claimed to be due could
be fixed by a mathematical calculation from ascertainable data, and the
defendants did not challenge the court’s implicit finding that the money
was wrongfully detained.
Argued April 15—officially released September 10, 2019

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
action was withdrawn as to the defendant One Morn-
ingside Drive Partners, Limited Partnership; thereafter,
the court, Robaina, J., granted the plaintiff’s amended
motion to cite in POKO Management Corp. as a party
defendant; subsequently, the matter was tried to the
court, Elgo, J.; judgment in part for the plaintiff, from
which the defendants appealed to this court; thereafter,
the court, Elgo, J., issued a rectification of its decision;
subsequently, Pamela Olson, as executrix of the estate
of Kenneth M. Olson, was substituted as a defendant.
Affirmed.
Thomas E. Katon, with whom, on the brief, was
Adam D. Miller, for the appellants (defendants).
Kirk D. Tavtigian, Jr., with whom was George M.
Purtill, for the appellee (plaintiff).
Opinion

DiPENTIMA, C. J. The defendants1 POKO Partners,
LLC, POKO Reservoir Yaremich Developers, LLC,
POKO Cape Loom Managers, LLC, One Morningside
Group, LLC, One Morningside Managers, LLC, One
Morningside Owners, LLC, Capehart Ventures, LLC,
POKO Management Corp., Richard K. Olson, and
Pamela Olson, as executrix of the estate of Kenneth
M. Olson,2 appeal from the judgment of the trial court
rendered in part in favor of the plaintiff, Crosskey Archi-
tects, LLC. On appeal, the defendants claim that the
court (1) improperly pierced the corporate veil, (2)
improperly found that the plaintiff was entitled to dam-
ages on the theory of quantum meruit and (3) abused its
discretion in awarding statutory prejudgment interest
pursuant to General Statutes § 37-3a3 on the theory of
quantum meruit. We affirm the judgment of the trial
court.
The following facts, as found by the trial court, and
procedural history are relevant. The plaintiff is an archi-
tectural firm owned by William Crosskey, a licensed
architect. From 2006 to 2015, Crosskey had a business
relationship with Kenneth Olson and his brother, Rich-
ard Olson. The Olsons oversaw between forty to sixty
business entities established for the purpose of com-
mercial and residential real estate development. The
Olsons managed their business entities by having the
businesses owned by one limited liability company
while being managed and controlled by another. At the
top of this structure are POKO Partners, LLC, in which
Kenneth Olson has a 50 percent ownership interest,
Richard Olson has a 40 percent ownership interest and
Pamela Olson, Kenneth Olson’s wife, has a 10 percent
interest; and POKO Management Corp., in which Ken-
neth Olson has a 60 percent ownership interest and
Richard Olson has a 40 percent ownership interest.
Either Kenneth Olson or the Olsons together own a
majority interest in nearly all of the defendant entities.
The defendant entities owned by the Olsons operate
out of one office in Port Chester, New York. All of the
personnel working out of this office are paid by either
POKO Partners, LLC, or POKO Management Corp. The
Olsons’ salaries are paid exclusively from POKO Man-
agement Corp.
In the thirteen count operative complaint, the plaintiff
sought damages for the unpaid work it had performed
on four projects of the Olsons: the POKO office project,
the Reservoir project, the Morningside Drive project
and the Capehart project. The plaintiff alleged breach
of contract, quantum meruit and unjust enrichment
regarding each of the four projects, and sought to pierce
the corporate veil.
The court described the plaintiff’s work on the four
projects as follows. Kenneth Olson began communica-
tions with Crosskey in 2008, regarding the POKO office
project, which involved renovating the office in Port
Chester. Employees of the plaintiff exchanged e-mails
with Richard Olson and an employee of POKO Partners,
LLC, regarding the work requested. The work requested
was done and accepted at the hourly rates that the
plaintiff had charged since the beginning of the plain-
tiff’s business relationship with the Olsons. After com-
pleting the work, Crosskey sent Kenneth Olson and
POKO Partners, LLC, invoices totaling $4690.24 as of
October 15, 2008, but the plaintiff was not paid. Richard
Olson explained that the plaintiff was not paid because
he and his brother assumed that the plaintiff would
write off the costs.
The Reservoir project involved new construction,
mixed-use housing and commercial space development
in the city of Bridgeport. In September, 2006, Kenneth
Olson solicited the plaintiff’s architectural services.
Although the project never went forward, the plaintiff
performed work on the project and submitted invoices.
The plaintiff was never paid.
The Morningside Drive project involved a group of
small office buildings owned by Kenneth Olson on One
Morningside Drive in Westport. The plaintiff provided
architectural services in connection with this project.
POKO Management Corp. was the property manager
for One Morningside Drive, which was being developed
in order to sell to Newman’s Own Real Estate, LLC.
Following the sale, POKO Management Corp. continued
to use the plaintiff’s services for ongoing projects at One
Morningside Drive. There was an ongoing agreement in
which the plaintiff was solicited to provide architectural
services and the defendants would pay the plaintiff’s
hourly rates. Crosskey sent unpaid invoices in the
amount of $10,480.10 to POKO Partners, LLC, and POKO
Management Corp. One Morningside Managers, LLC,
was the managing entity of One Morningside Group,
LLC, in which Richard Olson and Kenneth Olson each
had a 37.5 percent interest, respectively, and the
remaining 25 percent was owned by employees of the
defendant entities. One Morningside Managers, LLC,
was dissolved in 2014, after the buildings were sold to
Newman’s Own Real Estate, LLC, for $5.8 million. At
that time, One Morningside Group, LLC, of which Ken-
neth Olson was an investor, netted $1,669,702.51. In
reliance on an agreement that he would be paid, Cros-
skey continued to accept work from Kenneth Olson,
but he was not paid.
The Capehart project concerned the development of
an old mill building in Norwich into apartment build-
ings. Kenneth Olson signed a contract in which he was
identified as the managing member under the auspices
of Capehart Ventures, LLC.4 The Capehart project never
came to fruition, and the court noted that Kenneth
Olson’s deposition testimony revealed that ‘‘close to a
million and a half dollars’’ was lost on the project. (Inter-
nal quotation marks omitted.) POKO Partners, LLC, the
project manager on this project, received $450,000 in
project management fees. The plaintiff’s outstanding
bill for the project totaled $31,383.93, with late charges
totaling $63,775.71. The court noted that Kenneth Olson
‘‘rationalized his refusal to pay the plaintiff for architec-
tural services rendered for the Reservoir and Capehart
projects by claiming that the plaintiff was ‘on spec.’
In other words, the plaintiff was effectively working
without compensation for [its] services unless and until
the projects were ultimately approved for funding.
There is, however, no credible evidence that the plaintiff
or Crosskey agreed to this arrangement.’’
The court found in favor of the plaintiff on the first
count of the complaint alleging breach of contract as
to the POKO office project as against POKO Partners,
LLC, and POKO Management Corp. in the amount of
$4690.24 plus interest; on the fifth count of the com-
plaint addressing the Reservoir project and seeking
quantum meruit as to POKO Partners, LLC, POKO Man-
agement Corp. and POKO Reservoir Yaremich Develop-
ers, LLC, in the amount of $23,907.70 plus interest; on
the seventh count of the complaint, alleging breach of
contract as to the Morningside Drive project as against
POKO Partners, LLC, POKO Management Corp., One
Morningside Group, LLC, and One Morningside Manag-
ers, LLC, in the amount of $10,480.09 plus interest; and
on the tenth count of the complaint alleging breach of
contract as to the Capehart project as against POKO
Partners, LLC, Capehart Ventures, LLC, and POKO Cape
Loom Managers, LLC,5 in the amount of $31,383.93 plus
interest. The court also found that the plaintiff prevailed
on the thirteenth count of the complaint and pierced
the corporate veil, holding the Olsons personally liable
for damages awarded on each count found in favor of
the plaintiff. The court dismissed all other counts of
the complaint as moot. The court awarded prejudgment
interest pursuant to § 37-3a on all the damages. This
appeal followed. Additional facts will be set forth as
necessary.
I
The defendants claim that the court improperly
pierced the corporate veil and held the Olsons person-
ally liable under the identity rule.6 They argue that the
court (1) misapplied the identity rule and (2) failed to
properly consider whether the defendant entities served
a legitimate business purpose. We are not persuaded.
We note the following relevant law. ‘‘Whether the
circumstances of a particular case justify the piercing
of the corporate veil presents a question of fact. . . .
Accordingly, we defer to the trial court’s decision to
pierce the corporate veil, as well as any subsidiary fac-
tual findings, unless they are clearly erroneous. . . . A
court’s determination is clearly erroneous only in cases
in which the record contains no evidence to support it,
or in cases in which there is evidence, but the reviewing
court is left with the definite and firm conviction that
a mistake has been made. . . .
‘‘Generally, a corporation is a distinct legal entity and
the stockholders are not personally liable for the acts
and obligations of the corporation . . . . Courts will,
however, disregard the fiction of a separate legal entity
to pierce the shield of immunity afforded by the corpo-
rate structure in a situation in which the corporate
entity has been so controlled and dominated that justice
requires liability to be imposed on the real actor.’’ (Cita-
tions omitted; internal quotation marks omitted.) Com-
missioner of Environmental Protection v. State Five
Industrial Park, Inc., 304 Conn. 128, 138–39, 37 A.3d
724 (2012).
We address the defendants’ arguments in turn.
A
The defendants argue that the court misapplied the
identity rule. They contend that the court improperly
found that the identity test was satisfied based solely
on its finding that the Olsons controlled the defendant
entities. They argue that control is not relevant to the
identity test and concerns, instead, the first prong of
the instrumentality test. We are not persuaded.
‘‘It is well established that [t]he . . . determination
of the proper legal standard in any given case is a
question of law subject to our plenary review.’’ (Internal
quotation marks omitted.) Mirjavadi v. Vakilzadeh, 310
Conn. 176, 183, 74 A.3d 1278 (2013).
‘‘When determining whether piercing the corporate
veil is proper, our Supreme Court has endorsed two
tests: the instrumentality test and the identity test.’’7
(Internal quotation marks omitted.) KLM Industries,
Inc. v. Tylutki, 75 Conn. App. 27, 32, 815 A.2d 688,
cert. denied, 263 Conn. 916, 821 A.2d 770 (2003). The
instrumentality rule has three prongs, the first of which
requires ‘‘[c]ontrol, not mere majority or complete stock
control, but complete domination, not only of finances
but of policy and business practice in respect to the
transaction attacked so that the corporate entity as to
this transaction had at the time no separate mind, will or
existence of its own . . . .’’8 (Internal quotation marks
omitted.) Naples v. Keystone Building & Development
Corp., 295 Conn. 214, 232, 990 A.2d 326 (2010). To pierce
the corporate veil under the identity rule, the plaintiff
must show that ‘‘there was such a unity of interest and
ownership that the independence of the corporations
had in effect ceased or had never begun, an adherence
to the fiction of separate identity would serve only to
defeat justice and equity by permitting the economic
entity to escape liability arising out of an operation
conducted by one corporation for the benefit of the
whole enterprise.’’ (Internal quotation marks omitted.)
Id. ‘‘[T]he identity rule is applicable against individuals,
as well as corporations . . . .’’ (Citation omitted.)
Id., 237.
The defendants argue that the court based its determi-
nation that the identity rule was satisfied solely on its
finding that the Olsons controlled the defendant entities
and failed to examine issues of unity of interest and
corporate independence. The defendants mischaracter-
ize the trial court’s decision and have not shown that
the court misapplied the identity theory. The trial court
examined control in addition to other factors, and such
an analysis does not evince a misapplication of the
identity rule. The court cited the correct law regarding
the identity theory, found facts in support of the theory
and concluded that the plaintiff had proven it was enti-
tled to compensation under the identity rule. ‘‘Gener-
ally, appellate courts presume that the trial court knows
and has applied the law correctly in the absence of
evidence to the contrary. . . . [I]t is the burden of the
appellant to show to the contrary.’’ (Citation omitted;
internal quotation marks omitted.) Havis-Carbone v.
Carbone, 155 Conn. App. 848, 867, 112 A.3d 779 (2015).
Nothing prevents a trial court from examining control
along with other factors as a method by which to con-
clude that certain aspects of the identity rule have been
met. ‘‘[T]he identity rule primarily applies to prevent
injustice in the situation where two corporate entities
are, in reality, controlled as one enterprise . . . .’’ (Cita-
tion omitted; emphasis added; internal quotation marks
omitted.) Falcone v. Night Watchman, Inc., 11 Conn.
App. 218, 221, 526 A.2d 550 (1987). ‘‘No hard and fast
rule . . . as to the conditions under which the entity
may be disregarded can be stated as they vary according
to the circumstances of each case. . . . It is clear that
the key factor in any decision to disregard the separate
corporate entity is the element of control or influence
exercised by the individual sought to be held liable over
corporate affairs.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Angelo Tomasso,
Inc. v. Armor Construction & Paving, Inc., 187 Conn.
544, 555–57, 447 A.2d 406 (1982). ‘‘In Zaist [v. Olson,
154 Conn. 563, 578, 227 A.2d 552 (1967)], [our Supreme
Court] found the controlling stockholder and a related
corporation liable under an alter ego theory, concluding
that the corporate structure of the defendant in that
case could properly have been disregarded under either
the instrumentality rule or the identity rule.’’ (Internal
quotation marks omitted.) Naples v. Keystone Build-
ing & Development Corp., supra, 295 Conn. 232.
Alternatively, the defendants argue essentially that
the plaintiff presented no evidence to support the iden-
tity rule. They also contend that the court failed to make
certain findings, but they did not request an articulation
on those grounds.9 Instead of focusing on findings that
the court did not make, we note that ‘‘each case in
which the issue is raised should be regarded as sui
generis, to be decided in accordance with its own under-
lying facts.’’ (Internal quotation marks omitted.) Angelo
Tomasso, Inc. v. Armor Construction & Paving, Inc.,
supra, 187 Conn. 556 n.7. After a thorough examination,
we conclude that the factual findings that the trial court
made support a finding that the identity rule was satis-
fied. The court found that (1) POKO Partners, LLC, and
POKO Management Corp. were the locus of power for
the overall organization through which the Olsons main-
tained virtually unchecked power and control; (2)
POKO Management Corp., ‘‘which receives ‘reimburse-
ments’ through every company that does business with
[the defendant entities] for expense[s], pays salaries to
[the Olsons]’’; (3) Kenneth Olson viewed the lack of
clarity in the overall corporate structure of the defen-
dant entities as a virtue;10 (4) Kenneth Olson intention-
ally misled Crosskey on the projects that did not move
forward into providing architectural services, and later
recast the arrangement as being ‘‘ ‘on spec’ ’’; (5) the
defendant entities were located in one office, and
shared all office supplies and equipment, including com-
puters; (6) Kenneth Olson signed all of his e-mails as
emanating from POKO Partners, LLC, regardless of
whether another defendant entity was purporting to
handle the matter; (7) the defendant entities were
‘‘stack[ed]’’ to provide the Olsons with layers of protec-
tion; and (8) the Olsons would pay themselves first
without notice to legitimate creditors, would dissolve
or abandon companies when it was not convenient for
them to proceed with a project, would ask vendors to
supply services to companies that had no reasonable
capitalization and would hire vendors through one com-
pany while forming another single purpose entity in
order to absorb liabilities.11
‘‘The essential purposes of the corporate structure,
including stockholder immunity, must and will be pro-
tected when the corporation functions as an entity in
the normal manner contemplated and permitted by law.
When it functions in this manner, there is nothing insidi-
ous in stockholder control, interlocking directorates or
identity of officers. When, however, the corporation is
so manipulated by an individual or another corporate
entity as to become a mere puppet or tool for the manip-
ulator, justice may require the courts to disregard the
corporate fiction and impose liability on the real actor.’’
Zaist v. Olson, supra, 154 Conn. 574–75. ‘‘When the
statutory privilege of doing business in the corporate
form is employed as a cloak for the evasion of obliga-
tions, as a mask behind which to do injustice, or invoked
to subvert equity, the separate personality of the corpo-
ration will be disregarded.’’ (Internal quotation marks
omitted.) Falcone v. Night Watchman, Inc., supra, 11
Conn. App. 220. The court’s findings support the notion
that the real actors were the Olsons, who controlled the
defendant entities as one enterprise while improperly
using the corporate form to their benefit and to the
detriment of legitimate creditors. We conclude that the
court’s finding that the particular circumstances of this
case justify piercing the corporate veil under the iden-
tity theory was not clearly erroneous.
B
The defendants next argue that the court ‘‘failed to
properly apply the second prong of the Naples [v. Key-
stone Building & Development Corp., supra, 295 Conn.
214] analysis: that the corporate entity served no legiti-
mate business purpose . . . .’’ We disagree.
The defendants’ argument is unavailing because it is
premised on a misstatement of the law. As aptly stated
by Justice Borden in his dissent in Angelo Tomasso,
Inc. v. Armor Construction & Paving, Inc., supra, 187
Conn. 575, ‘‘[u]nlike the instrumentality theory, under
which there are three specific elements of proof, the
identity theory is undifferentiated.’’ The seminal case
of Zaist v. Olson, supra, 154 Conn. 576, and its progeny
express the identity rule as follows: ‘‘If [the] plaintiff
can show that there was such a unity of interest and
ownership that the independence of the corporations
had in effect ceased or had never begun, an adherence
to the fiction of separate identity would serve only to
defeat justice and equity by permitting the economic
entity to escape liability arising out of an operation
conducted by one corporation for the benefit of the
whole enterprise.’’ (Internal quotation marks omitted.)
In Naples v. Keystone Building & Development
Corp., supra, 295 Conn. 233–34, our Supreme Court,
after setting forth the identity rule, stated: ‘‘The concept
of piercing the corporate veil is equitable in nature.
. . . No hard and fast rule, however, as to the condi-
tions under which the entity may be disregarded can
be stated as they vary according to the circumstances
of each case. . . . Ordinarily the corporate veil is
pierced only under exceptional circumstances, for
example, where the corporation is a mere shell, serving
no legitimate purpose, and used primarily as an interme-
diary to perpetuate fraud or promote injustice. . . .
The improper use of the corporate form is the key to
the inquiry, as [i]t is true that courts will disregard legal
fictions, including that of a separate corporate entity,
when they are used for fraudulent or illegal purposes.
Unless something of the kind is proven, however, to
do so is to act in opposition to the public policy of
the state as expressed in legislation concerning the
formation and regulation of corporations.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.)
Our Supreme Court in Naples stated that the circum-
stances necessary for piercing the corporate veil vary
according to each case. Id., 233. The court cited, as an
example of the exceptional circumstances under which
the veil could be pierced, the situation where a corpora-
tion served no legitimate purpose. Id. The court did
not state that the lack of a legitimate purpose was an
element necessary to pierce the corporate veil under
the identity theory. See id. Our Supreme Court in Naples
noted that for reasons of public policy an improper use
of the corporate form was key to the inquiry. Id., 233–34.
Because the lack of a legitimate business purpose is
not a necessary component of the identity test, the
defendants’ argument is without merit.
II
The defendants claim that the court improperly found
that the plaintiff was entitled to damages on the theory
of quantum meruit as to the Reservoir project.12 We
disagree.
The court found the following additional relevant
facts regarding the Reservoir project. Kenneth Olson
solicited the plaintiff to provide architectural services
for this project. The plaintiff provided an initial sketch,
which Kenneth Olson submitted in response to Bridge-
port’s request for proposal, and POKO Partners, LLC,
was selected. The plaintiff sent Kenneth Olson and
POKO Partners, LLC, a contract that outlined the plain-
tiff’s services and included a breakdown of fees
according to the five phases of the project. Kenneth
Olson reviewed the contract, did not sign it, but by
his conduct accepted its terms. The Reservoir project,
however, never went forward.
The court did not find that an enforceable contract
existed with respect to the Reservoir project because
Kenneth Olson failed to sign the contract. The court
found that the defendants used the plaintiff’s architec-
tural services ‘‘in an attempt to secure the development
rights for the project. This unequivocally evidences that
the defendants received a benefit from the architectural
services rendered because without the plaintiff’s ser-
vices, the opportunity to secure the rights to develop
the project would not have come to fruition. This court
can also find that the defendants’ prior dealings with the
plaintiff substantiates their knowledge that the plaintiff
does not work for free or ‘on spec’ and [that] withhold-
ing payment based on such an unfounded basis is
unjust.’’ The court found that the plaintiff had proven
its claim of quantum meruit and awarded $23,907.70 in
damages plus interest.
A
The defendants argue that the court improperly deter-
mined that they received a benefit from the plaintiff’s
architectural services on the Reservoir project. They
contend that the plaintiff’s schematic plans only made
possible an opportunity to incur a benefit in the future,
but because the Reservoir project did not go forward,
the defendants did not incur that future benefit and,
instead, lost money. The defendants further argue that
they did not unjustly fail to pay because both parties
were working ‘‘ ‘on spec’ ’’ and, therefore, neither party
was compensated when the project did not go forward.
We are not persuaded.
‘‘Determining whether the equitable [doctrine] of
quantum meruit . . . [is] applicable in any case
requires a factual examination of the particular circum-
stances and conduct of the parties. . . . The factual
findings of a trial court must stand, therefore, unless
they are clearly erroneous or involve an abuse of discre-
tion. . . . When a trial court’s legal conclusions are
challenged, however, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Citations omitted; internal quotation marks
omitted.) David M. Somers & Associates, P.C. v. Busch,
283 Conn. 396, 407, 927 A.2d 832 (2007).
‘‘Quantum meruit is a theory of contract recovery
that does not depend upon the existence of a contract,
either express or implied in fact. . . . Rather, quantum
meruit arises out of the need to avoid unjust enrichment
to a party, even in the absence of an actual agreement.
. . . Quantum meruit literally means as much as he has
deserved . . . . Centered on the prevention of injus-
tice, quantum meruit strikes the appropriate balance
by evaluating the equities and guaranteeing that the
party who has rendered services receives a reasonable
sum for those services.’’ (Citations omitted; internal
quotation marks omitted.) Gagne v. Vaccaro, 255 Conn.
390, 401, 766 A.2d 416 (2001).
We are not persuaded by the defendants’ argument
that they did not unjustly fail to pay. The defendants
highlight the deposition testimony of Kenneth Olson
in which he stated that it was his understanding that
services for the Reservoir project were provided ‘‘ ‘on
spec.’ ’’ The court had before it the unsigned contract
that included a fee proposal. Crosskey testified that he
did not agree to work for free and that there was nothing
in the unsigned contract concerning free work. The
court found credible the evidence that the plaintiff was
not working ‘‘ ‘on spec,’ ’’ and we will not second-guess
this determination. ‘‘Because it is the trial court’s func-
tion to weigh the evidence and determine credibility, we
give great deference to its findings.’’ (Internal quotation
marks omitted.) Ackerman v. Sobol Family Partner-
ship, LLP, 298 Conn. 495, 508, 4 A.3d 288 (2010).
Our review of the record persuades us that there was
sufficient evidence for the court properly to determine
that the defendants derived a benefit from the plaintiff’s
services. Crosskey testified that Bridgeport put out a
request for proposal to development teams and that
Kenneth Olson solicited his services to draw a sketch
to submit in response. He testified that ‘‘once [Kenneth
Olson] was awarded the project as the selected devel-
oper he then asked me to put together a fee proposal
to do the architectural and engineering services for the
remainder of the project.’’ Crosskey explained that after
Kenneth Olson had received the contract, which
included a fee proposal, he instructed Crosskey to con-
tinue to work. Crosskey also testified that he made
plans for the project that included, among other things,
schematic plans, a site plan, floor plans of the individual
apartments, color renderings for the building exterior
and a zoning regulation review. Crosskey further testi-
fied that Kenneth Olson used the plans.
Although the defendants did not receive an economic
gain from the outcome of Reservoir project itself, it
was not improper for the court to determine that the
defendants, nonetheless, received a benefit from the
services that the plaintiff provided with respect to the
Reservoir project. The court found an implied in fact
contract and determined that the plaintiff performed
architectural services as requested under the first phase
of the unsigned contract.
Under the equitable doctrine of quantum meruit, a
defendant that obtains the services requested receives
a benefit. ‘‘Quantum meruit is usually a remedy based
on implied contract and usually relates to the benefit
of work, labor or services received by the party who
was unjustly enriched . . . .’’ (Citation omitted.)
United Coastal Industries, Inc. v. Clearheart Construc-
tion Co., 71 Conn. App. 506, 512, 802 A.2d 901 (2002).
‘‘The defendant is benefitted when he gets what he
wants, regardless of market value.’’ 1 D. Dobbs, Law
of Remedies (2d Ed. 1993) § 4.5 (2), p. 634. ‘‘Requested
services are treated as benefits to the person who made
the request.’’ Id., § 4.5 (4), p. 651. ‘‘[E]quitable remedies
are not bound by formula but are molded to the needs
of justice.’’ (Internal quotation marks omitted.) Stewart
v. King, 121 Conn. App. 64, 71, 994 A.2d 308 (2010). We
conclude that it was within the province of the court,
in examining the circumstances and the conduct of the
parties and in balancing the equities, to determine that
the plaintiff was entitled to recovery under the doctrine
of quantum meruit.
B
The defendants next argue that the court improperly
calculated the amount of damages because no factual
support existed in the record for the value of the benefit.
In support of this argument, the defendants contend
that Kenneth Olson stated in his deposition testimony
that the plaintiff’s services were provided ‘‘ ‘on spec,’ ’’
that the defendants did not express any willingness to
pay the plaintiff the price on its Reservoir project
invoice and that the court found that no contract
existed. We are not persuaded.
‘‘The amount of damages available under [quantum
meruit], if any, is . . . a question for the trier of fact.
. . . The factual findings of a trial court must stand,
therefore, unless they are clearly erroneous or involve
an abuse of discretion. . . . The measure of damages
in restitution is the reasonable value of the benefit to
the defendant. . . . [W]herever justice requires com-
pensation to be given for property or services rendered
under a contract, and no remedy is available by an
action on the contract, restitution of the value of what
has been given must be allowed. . . .
‘‘The measure of restitution is essentially equitable,
its basis being that in a given situation it is contrary to
equity and good conscience for one to retain a benefit
which has come to him at the expense of another. . . .
With no other test than what, under a given set of
circumstances, is just or unjust, equitable or inequita-
ble, conscionable or unconscionable, it becomes neces-
sary in any case where the benefit of the doctrine is
claimed, to examine the circumstances and the conduct
of the parties and apply this standard. . . .
‘‘A court may select from among several methods
of determining the amount of recovery in restitution,
depending on the circumstances and conduct of the
parties in a particular case. . . . Although not directly
enforceable under the contract, the contract price is
evidence of the reasonable value of the benefit the
defendant received from the plaintiff.’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Walpole Woodworkers, Inc. v. Manning, 307 Conn.
582, 588–90, 57 A.3d 730 (2012).
We note that the court did not find credible Kenneth
Olson’s testimony that the plaintiff was providing ser-
vices ‘‘ ‘on spec.’ ’’ The court found that Kenneth Olson
accepted the terms of the contract by his conduct, and
that he was fully aware that he had an obligation to
pay for services. The court further found that Kenneth
Olson’s failure to sign the contract made it ambiguous
as to who or which entity was liable under the contract
and made ‘‘it difficult for [the] court to find that there
was a meeting of the minds with respect to the con-
tracting party relative to [the Reservoir project].’’ The
court additionally found that ‘‘[u]nder the various appli-
cations of quantum meruit under the Restatement
[(Third) of Restitution and Unjust Enrichment], and
given the equitable character of the doctrine, [the] court
finds that the ambiguity as to which entity entered into
a contract is not fatal to the plaintiff’s ability to demon-
strate that it is entitled to the value of services conferred
upon the defendants pursuant to the contract, albeit
unsigned.’’ The court determined that the parties had
an implied in fact contract and awarded damages in
the amount of $23,907.70, plus interest, for services
rendered under the doctrine of quantum meruit.
The court’s factual findings are supported by evi-
dence from the record and provide a sufficient basis
for the court to determine that the contract price, as
expressed in the unenforceable contract, for the ser-
vices rendered constitutes the measure of the value of
the benefit to the defendants. The court had for its
review the unsigned written contract, the invoices, as
well as the testimony of witnesses for the plaintiff and
the defendants. Crosskey testified that he sent a written
contract to Kenneth Olson regarding the Reservoir proj-
ect and that, after Bridgeport selected their proposal,
Kenneth Olson asked Crosskey to make a fee proposal
for the architectural and engineering services for the
remainder of the project. The contract included a break-
down of the plaintiff’s fees according to the five phases
of the project. The court found that because the project
did not go forward, the plaintiff provided only one-half
of the schematic design services that were contem-
plated under the first phase of the project. The contract
showed a total fee of $45,500 for the schematic design
under the first phase of the project. The invoice the
plaintiff sent to Kenneth Olson reflected that 50 percent
of the schematic design services were provided under
the first phase of the project, at a cost of $22,750, and
that the professional design services provided by Cros-
skey, plus postal charges and in-house printing, totaled
$1157.70, for a total principal amount of $23,907.70.
The defendants also argue that ‘‘[d]ue to the uncertain
value of a mere opportunity to compete for a municipal
contract, the plaintiff was required to set forth further
evidence that its invoice on the Reservoir project
reflected a reasonable value of the benefit to the defen-
dants.’’ As we have stated in part II A of this opinion,
the court’s finding of a benefit was supported by the
record. It was within the province of the court to deter-
mine, in balancing the equities, that the proper valuation
of the benefit conferred on the defendants was the
monetary value of the services performed by the plain-
tiff as reflected in the unsigned written contract. We
conclude that the court’s award of damages was not
clearly erroneous.
III
The defendants’ last claim is that the court improperly
awarded statutory prejudgment interest pursuant to
§ 37-3a on the plaintiff’s claim for quantum meruit as
to the Reservoir project.13 We disagree.
The defendants argue that the court lacked the discre-
tion to award prejudgment interest under § 37-3a on
the plaintiff’s claim for quantum meruit. Because this
claim requires us to consider the scope of § 37-3a, our
review is plenary. ‘‘To the extent that the defendant is
challenging the applicability of § 37-3a under the cir-
cumstances . . . our review is plenary.’’ Chapman
Lumber, Inc. v. Tager, 288 Conn. 69, 100, 952 A.2d
1 (2008).
‘‘[T]here is no right to recover interest in a civil action
unless a statute provides for interest.’’ Foley v. Hunting-
ton Co., 42 Conn. App. 712, 737, 682 A.2d 1026, cert.
denied, 239 Conn. 931, 683 A.2d 397 (1996). Section 37-
3a (a) provides in relevant part: ‘‘[I]nterest at the rate
of ten per cent a year, and no more, may be recovered
and allowed in civil actions or arbitration proceedings
. . . as damages for the detention of money after it
becomes payable. . . .’’
‘‘Section 37-3a provides a substantive right that
applies only to certain claims. . . . Under § 37-3a, an
allowance of prejudgment interest turns on whether
the detention of the money is or is not wrongful under
the circumstances. . . . There are well established
propositions that § 37-3a provides for interest on money
detained after it becomes due and payable, that the
question under that statute is whether the money was
wrongfully withheld . . . . The statute, therefore,
applies to claims involving the wrongful detention of
money after it becomes due and payable. . . . To
award § 37-3a interest, two components must be pres-
ent. First, the claim to which the prejudgment interest
attaches must be a claim for a liquidated sum of money
wrongfully withheld and, second, the trier of fact must
find, in its discretion, that equitable considerations war-
rant the payment of interest.’’14 (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Reyes v. Chetta, 143 Conn. App. 758, 770, 71 A.3d 1255
(2013). ‘‘[P]rejudgment interest for money detained
after it becomes due is compensatory because it com-
pensates or reimburses plaintiffs for the interest they
could have earned on the money that was rightfully
theirs, but that was not paid when it became due.’’
(Internal quotation marks omitted.) Chapman Lumber,
Inc. v. Tager, supra, 288 Conn. 102 n.36. ‘‘Detention of
money may be wrongful even if a party had a good faith
basis for nonpayment.’’ Nation Electrical Contracting,
LLC v. St. Dimitrie Romanian Orthodox Church, 144
Conn. App. 808, 820, 74 A.3d 474 (2013).
‘‘When a debtor knows precisely how much he is to
pay and to whom he is to pay it, his debt is a liquidated
one. . . . An amount claimed to be due is a liquidated
sum when it is susceptible of being made certain in
amount by mathematical calculations from factors
which are or ought to be in the possession or knowledge
of the party to be charged. . . . Unliquidated damages,
on the other hand, are those which are not yet reduced
to a certainty in respect to amount, nothing more being
established than the plaintiff’s right to recover; or such
as cannot be fixed by a mere mathematical calculation
from ascertainable data in the case.’’ (Citations omitted;
internal quotation marks omitted.) Costello v. Hartford
Institute of Accounting, Inc., 193 Conn. 160, 165–66,
475 A.2d 310 (1984).
‘‘Prejudgment interest pursuant to § 37-3a has been
applied to breach of contract claims for liquidated dam-
ages, namely, where a party claims that a specified sum
under the terms of a contract, or a sum to be determined
by the terms of the contract, owed to that party has
been detained by another party. . . . It has also been
applied to breach of contract claims where the partial
performance of one party caused the other party spe-
cific damages . . . . [Section] 37-3a [is] inapplicable
to claims for punitive damages because those damages
do not become payable before judgment. . . . Personal
injury claims seek to make persons whole by monetarily
compensating them for a loss negligently caused by
others. Damages are typically uncertain and the pur-
pose of the damages is to restore the injured, as nearly
as money can, to the status they were enjoying and
would have continued to enjoy prior to the negligent
act. Such claims do not seek to regain money detained
by another.’’ (Citations omitted; footnotes omitted.)
Foley v. Huntington Co., supra, 42 Conn. App. 740–42.
In Nation Electrical Contracting, LLC v. St. Dimitrie
Romanian Orthodox Church, supra, 144 Conn. App.
820, we declined the defendant’s invitation to create
a rule disallowing interest under § 37-3a in an action
seeking damages for unjust enrichment. In that case,
the defendant entered into a contract with a general
contractor for the construction of a church, and the
general contractor retained the plaintiff subcontractor
to provide electrical work. Id., 810. The plaintiff had
not entered into a contractual agreement with the defen-
dant. Id. The plaintiff submitted invoices to the general
contractor which, in turn, submitted invoices to the
defendant, which invoices included the sums sought by
the plaintiff. Id. The defendant did not pay the general
contractor fully and made no direct payments to the
plaintiff. Id., 811. The plaintiff brought an action against
the defendant claiming, inter alia, unjust enrichment.
Id., 811–12. The trial court concluded that the defendant
was liable to the plaintiff for unjust enrichment and
awarded damages, prejudgment interest, and costs. Id.,
814. On appeal, we concluded that ‘‘[the] matter falls
squarely within the scope of § 37-3a’’ and reasoned that
the defendant received an invoice for payment from
the general contractor that included work performed
by the plaintiff and that the amounts were due and
owing to the plaintiff. Id., 820–21.
Nation Electrical Contracting, LLC, demonstrates
the existence of factual scenarios wherein statutory
prejudgment interest is appropriate in claims seeking
restitution. The defendants have not provided a compel-
ling argument for disallowing statutory prejudgment
interest in an action seeking damages in quantum
meruit, and we see no reasonable distinction between
claims sounding in unjust enrichment and those sound-
ing in quantum meruit for purposes of § 37-3a. ‘‘[B]oth
unjust enrichment and quantum meruit are doctrines
allowing recovery on the theory of restitution, that is,
the restoration to a party of something of which he was
deprived because of the unjust enrichment of another
at his expense. . . . [U]njust enrichment has been the
form of action commonly pursued in this jurisdiction
when the benefit that the enriched party receives is
either money or property. . . . The other form of
action for restitution is quantum meruit, which has been
utilized when the benefit received was the work, labor,
or services of the party seeking restitution.’’ (Citations
omitted; internal quotation marks omitted.) Schirmer
v. Souza, 126 Conn. App. 759, 765–66, 12 A.3d 1048
(2011). ‘‘The measure of damages in restitution is the
reasonable value of the benefit to the defendant. . . .
Although not directly enforceable under the contract,
the contract price is evidence of the reasonable value
of the benefit the defendant received from the plaintiff.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Walpole Woodworkers, Inc. v. Man-
ning, supra, 307 Conn. 589–90.
In concluding that an award for damages under the
doctrine of quantum meruit falls within the scope of
§ 37-3a, we next turn to whether the court abused its
discretion in awarding prejudgment interest under the
facts of this case. See Chapman Lumber, Inc. v. Tager,
supra, 288 Conn. 99 (‘‘[t]he decision of whether to grant
interest under § 37-3a is primarily an equitable determi-
nation and a matter lying within the discretion of the
trial court’’ [internal quotation marks omitted]). In the
present case, the court did not abuse its discretion
in awarding prejudgment interest under § 37-3a. The
quantum meruit claim involved a liquidated sum of
money that the defendants had withheld from the plain-
tiff. The unsigned contract, which the court found Ken-
neth Olson reviewed and accepted its terms by his con-
duct, included a payment schedule, and the plaintiff sent
invoices to the Olsons for $23,907.70 for the services
it had provided. In its complaint, the plaintiff sought
damages for the nonpayment of $23,907.70 that it was
owed for services rendered. The defendants did not
pay the plaintiff. The court found that Kenneth Olson
intentionally misled Crosskey into providing architec-
tural services and then recast their arrangement as
being ‘‘ ‘on spec.’ ’’ The court awarded prejudgment
interest on the damages for the Reservoir project, begin-
ning on December 31, 2008, thirty days after the final
invoice. Under the facts of this case, the amount claimed
to be due could be fixed by a mathematical calculation
from ascertainable data. See Costello v. Hartford Insti-
tute of Accounting, Inc., supra, 193 Conn. 165–66. The
court’s findings as to the Reservoir project support a
conclusion that the money was due and payable, and
the defendants do not challenge the court’s implicit
finding that the money was wrongfully detained. We
conclude, therefore, that the court did not abuse its
discretion in awarding prejudgment interest on the
quantum meruit claim as to the Reservoir project.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The original complaint also named One Morningside Drive Partners,
Limited Partnership as a defendant. The action was later withdrawn as to
that defendant.
2
Kenneth M. Olson died during the pendency of this appeal, and Pamela
Olson filed a motion to substitute party, which was granted. For ease of
reference, we will refer to the individual defendants as Richard Olson or
Kenneth Olson or, collectively, as the Olsons.
3
Although § 37-3a was the subject of technical amendments in 2018; see
Public Acts 2018, No. 18-94, § 32; those amendments have no bearing on
the merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
4
The record reflects that Crosskey sent Kenneth Olson a signed proposal
for the Capehart project and Kenneth Olson signed it.
5
Although the court found, as to count ten of the operative complaint,
that only POKO Partners, LLC, Capeheart Ventures, LLC, and POKO Cape
Loom Managers, LLC, breached the contract, the complaint alleged that
POKO Management Corp. also breached the contract.
6
The plaintiff argues that it is unnecessary to review the piercing of the
corporate veil claim because the court found the Olsons directly liable on
the first, fifth, seventh and tenth counts. We do not agree with the plaintiff’s
interpretation of the trial court’s decision. The question of whether the
Olsons were directly liable for damages on the first, fifth, seventh and tenth
counts was not before the trial court. The allegations in the complaint did
not seek to impose direct liability on the Olsons, and only the thirteenth
count of the complaint sought to impose liability for business debts on the
Olsons by piercing the corporate veil. The court concluded that the plaintiff
met its burden of establishing that the corporate veil should be pierced and,
as a result, found that the Olsons were personally liable. Accordingly, we
will review this claim.
7
The instrumentality rule and the identity rule also apply to the protection
afforded by a limited liability company. Morris v. Cee Dee, LLC, 90 Conn.
App. 403, 414, 877 A.2d 899, cert. granted, 275 Conn. 929, 883 A.2d 1245
(2005) (appeal withdrawn March 13, 2006).
8
The remaining prongs of the instrumentality rule, which are not impli-
cated in this claim, are as follows: ‘‘(2) that such control must have been
used by the defendant to commit fraud or wrong, to perpetrate the violation
of a statutory or other positive legal duty, or a dishonest or unjust act in
contravention of [the] plaintiff’s legal rights; and (3) that the aforesaid
control and breach of duty must proximately cause the injury or unjust loss
complained of.’’ (Internal quotation marks omitted.) Naples v. Keystone
Building & Development Corp., 295 Conn. 214, 232, 990 A.2d 326 (2010).
9
The defendants further argue that evidence was presented at trial that
POKO Reservoir Yaremich Developers, LLC, Capehart Ventures, LLC, and
Cape Loom Managers, LLC, filed and maintained records with the Secretary
of State, maintained a separate bank account, and filed tax returns. The
court did not state in its memorandum of decision whether it found this
evidence credible. If the defendants wanted to have the court specify whether
it found this evidence credible, they could have requested an articulation
on those grounds. See Practice Book § 66-5.
10
The court further found that Kenneth Olson’s deposition testimony
‘‘smacks of elusive game playing semantics’’ and that the lack of clarity in
certain aspects of his testimony indicated that he was attempting to insulate
the main defendant entities, as well as himself, from liability.
11
The defendants argue that the court’s finding that single purpose entities
were used to absorb liabilities was clearly erroneous. The court determined
that the ‘‘establishment of ‘single purpose entities,’ while not nefarious in
and of [itself], in this case was used to absorb liabilities, which the entity,
specifically, POKO Reservoir Yaremich Developers, LLC, and Capehart Ven-
tures, LLC, did not originally enter into.’’ This finding is supported by the
court’s additional findings. The court found that Kenneth Olson and POKO
Partners, LLC, ‘‘do not dispute that they procured architectural services
from Crosskey at the outset of [the Reservoir and Capehart] projects, but
claim that upon the establishment of a ‘single purpose entity’ like POKO
Reservoir Yaremich Developers, LLC, and Capehart Ventures, LLC, the enti-
ties, as opposed to POKO Partners, LLC, under whose auspices [the] court
finds solicited Crosskey’s services, would begin assuming liability for bills
associated with the project. This arrangement was effective, according to
[Kenneth] Olson, even though, as Crosskey testified, the plaintiff’s services
were typically 75 percent complete by the time the single purpose entity
was formed.’’ The court also found that after the plaintiff sent invoices
regarding the Reservoir project, Kenneth Olson stated that he and his brother
‘‘ ‘would remain open-minded’ ’’ on the issue of the payment dispute, and
approximately one month later, POKO Reservoir Yaremich Developers, LLC,
was dissolved.
12
The court found that the plaintiff had proven its claim of quantum meruit
against POKO Partners, LLC, POKO Management Corp., and POKO Reservoir
Yaremich Developers, LLC, and against the Olsons by virtue of piercing the
corporate veil.
13
See footnote 12 of this opinion.
14
In Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747,
765 n.13, 916 A.2d 114 (2007), we stated that ‘‘[w]e have found one contrary
case as to the lack of a need for a liquidated sum in order to obtain . . .
§ 37-3a interest, penned in the early years of the twentieth century. Loomis
v. Gillett, 75 Conn. 298, 53 A. 581 (1902). Although the case has never been
overruled, it has never been cited for the proposition that prejudgment
interest is appropriate when damages are unliquidated. We conclude that
the reasoning of that case has not been adopted in cases decided after 1902.’’