Geriatrics, Inc. v. McGee ( 2019 )

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GERIATRICS, INC. v. HELEN MCGEE ET AL.
(SC 20047)
Palmer, McDonald, Robinson, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Pursuant to a provision of the Connecticut Uniform Fraudulent Transfer
Act (CUFTA) (§ 52-552e [a] [1]), a transfer by a debtor is fraudulent as
to a creditor, if the creditor’s claim arose before the transfer was made
and if the debtor made the transfer with actual intent to hider, delay
or defraud any creditor of the debtor.
The plaintiff, a nursing home operator, sought to recover damages for, inter
alia, the alleged breach of a residency agreement executed by the named
defendant, H, upon her admission to one of the plaintiff’s nursing homes.
Before H was admitted to the plaintiff’s facility, H’s son, the defendant
S, began to manage her finances under a power of attorney that she
had given to him, which included access to her bank accounts. Under
the residency agreement, to which S was not a party, H agreed to pay
for the costs associated with her residency and related care. The plaintiff
alleged, with respect to H, breach of contract and unjust enrichment
owing to her failure to pay for services rendered to her by the plaintiff.
With respect to S, the plaintiff alleged unjust enrichment and a violation
of CUFTA on the basis that H had transferred assets to S, those transfers
left H with insufficient assets to pay her debts, the transfers were made
with the intent to hinder H’s creditors, and S had provided nothing in
exchange for the assets he received. At trial, the plaintiff introduced
checks issued after H had been admitted to the nursing home that were
payable to S or his wife. The checks totaled about $73,000 and were
drawn on H’s bank accounts and signed by S with the designation for
power of attorney. S also exercised his power of attorney to pay some of
H’s past and present expenses directly to other creditors. S’s deposition
testimony, which was admitted at trial, indicated that he had a verbal
agreement with H to receive payment for his power of attorney services
in the amount of $600 per month and that H had agreed that he could
allocate money to himself for the care that he provided to her in her
home before she was admitted to the nursing home. There was no claim
by H’s counsel that S lacked authority to make the transfers to himself
on H’s behalf or that he otherwise engaged in any wrongdoing in connec-
tion with those transfers. The trial court rendered judgment for the
plaintiff on its breach of contract claim against H and for S on both the
CUFTA and unjust enrichment counts against him. The court reasoned
that CUFTA did not apply to the transfers made by S because S was
not a debtor of the plaintiff, and CUFTA did not apply to third-party
transferors, such as S. The court also determined, with respect to the
plaintiff’s unjust enrichment claim against S, that both the plaintiff and
S had a right to H’s assets but that the plaintiff had failed to prove that
the plaintiff had the better legal or equitable right to H’s assets than S
did. On the plaintiff’s appeal from that portion of the trial court’s judg-
ment relating to the plaintiff’s claims against S, held:
1. The trial court improperly rejected the plaintiff’s fraudulent transfer claim
on the ground that S’s transfers of H’s assets pursuant to a power of
attorney were not transfers made by a debtor, and, accordingly, the trial
court’s judgment as to the plaintiff’s CUFTA claim was reversed and
the case was remanded for a new trial on that claim at which the court
must determine whether such transfers were fraudulent under any of
the theories advanced by the plaintiff: the trial court improperly failed
to consider the agency relationship between H and S created by the
power of attorney and to apply agency principles when it determined
that H’s assets had been transferred by a third party rather than by
the debtor; moreover, this court’s review of the relevant provisions of
CUFTA, including the provision (§ 52-552k) providing that the law relat-
ing to principal and agent supplements the provisions of CUFTA, unless
displaced by its provisions, led it to conclude that the requirement
in § 52-552e (a) that the fraudulent transfer be made ‘‘by a debtor’’
encompasses a transfer made by a person authorized by a power of
attorney to make such a transfer on behalf of the debtor, there having
no basis to conclude that the application of agency principles in this
context was inconsistent with the provisions of CUFTA or conflicted
with its policies of protecting creditors and suppressing fraud.
2. The trial court properly rendered judgment for S on the plaintiff’s unjust
enrichment claim: the trial court’s finding that S, as well as the plaintiff,
had an interest in H’s assets was not clearly erroneous, as the court
was free to consider the absence of a claim by H that S improperly
transferred assets to himself and to credit S’s deposition testimony,
which was admitted into evidence by the parties’ mutual agreement,
that he used the money from H’s accounts to compensate himself for
the care he had provided to H before she was admitted and for the
continued management of her personal and financial affairs; moreover,
the trial court did not abuse its discretion in determining that the plaintiff
had failed to prove that it, rather than S, had the better legal or equitable
right to H’s assets.
(Three justices concurring in part and
dissenting in part in one opinion)
Argued April 4, 2018—officially released June 18, 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 New Britain and tried
to the court, Morgan, J.; judgment in part for the plain-
tiff, from which the plaintiff appealed. Reversed in part;
new trial.
Andrew P. Barsom, for the appellant (plaintiff).
Jeremy S. Donnelly, for the appellee (defendant Ste-
phen McGee).
Opinion
McDONALD, J. The Connecticut Uniform Fraudulent
Transfer Act (CUFTA or act), General Statutes §§ 52-
552a through 52-552l, provides relief to unsecured credi-
tors when there has been a transfer of a debtor’s assets
and the circumstances establish that the transfer was
fraudulent. The principal issue in this appeal is whether
it would be improper to impute to the debtor a transfer
of the debtor’s assets by the debtor’s agent under the
law of agency. The act directs courts to apply the law
of principal and agent unless such law is ‘‘displaced
by’’ the provisions of the act. General Statutes § 52-552k.
The defendant Stephen McGee used a power of attor-
ney granted to him by his elderly mother, the named
defendant, Helen McGee (Helen), to transfer to himself
funds from Helen’s checking account, claiming that
Helen had authorized him to reimburse himself for vari-
ous services that he had provided or was continuing to
provide to her. As a consequence of those transfers,
Helen had insufficient assets to pay her debt to the
plaintiff, Geriatrics, Inc., the owner and operator of a
nursing home in which Helen resided for a period of
time. The plaintiff appeals from the judgment of the trial
court insofar as it rendered judgment in the defendant’s
favor on counts alleging fraudulent transfer under
CUFTA and unjust enrichment. We conclude that the
trial court, in rejecting the plaintiff’s CUFTA claim,
improperly failed to consider and apply agency princi-
ples when it decided that Helen’s assets had been trans-
ferred by a ‘‘third party,’’ the defendant, and not by the
debtor, Helen. We further conclude that, in light of
certain unrebutted evidence, the trial court did not
abuse its discretion in rejecting the plaintiff’s unjust
enrichment claim. Therefore, we reverse in part and
affirm in part the trial court’s judgment.
The record reveals the following undisputed facts.
In late 2012, the defendant began to manage Helen’s
finances under a power of attorney.1 In February, 2013,
Helen was admitted to Bel Air Manor, a skilled nursing
home operated by the plaintiff, and she agreed to pay
for residency and related care. The defendant was not a
party to this agreement. Although Medicare and private
insurance paid Helen’s expenses for the first nine
months at Bel-Air Manor, she began accumulating debt
once those benefits were exhausted.2
In June, 2015, the plaintiff commenced the present
action against Helen3 and the defendant. In the counts
brought against Helen, the plaintiff alleged that Helen
had breached the residency agreement and had been
unjustly enriched by her failure to pay in excess of
$153,000 for services provided to her to date. In the
counts against the defendant, the plaintiff alleged that
Helen had transferred assets to the defendant, an
‘‘insider’’ under CUFTA; that those transfers left Helen
with insufficient assets to pay her debts; that those
transfers were made with the intent to hinder Helen’s
creditors; and that the defendant had provided nothing
in exchange for the funds he received. The plaintiff
alleged that this conduct constituted a fraudulent trans-
fer in violation of CUFTA and resulted in the defendant’s
unjust enrichment.4 The defendant admitted in his
answer that Helen had transferred assets to him but
denied the other substantive allegations.
At trial, the plaintiff introduced checks drawn on
bank accounts in Helen’s name, signed by the defendant
with the designation ‘‘POA’’ (power of attorney). Some
of the checks named various businesses as payees;
forty-eight of the checks, issued over a three year period
and totaling approximately $73,000, named the defen-
dant or his wife as payee.5
The defendant did not testify at trial. He was unavail-
able due to illness, and his deposition was admitted
into evidence by stipulation. In that deposition, the
defendant testified that, in late 2012, he began to man-
age Helen’s finances under a power of attorney
agreement that Helen had given. He testified that vari-
ous checks likely had been or were issued as payment
for his power of attorney services, for which he charged
$600 a month.6 The defendant testified that he and Helen
had made a verbal agreement that he would receive
monthly fees for such services, and that the power of
attorney agreement reflected that he could charge fees.
The defendant also testified that he had cared for Helen
before she was admitted to Bel Air, and that he and
Helen had a verbal agreement that he could take ‘‘what-
ever’s due [to him]’’ for the personal care that he had
provided. The defendant estimated the value of that
care to be approximately $230 per day, based on the
rate for comparable professional services.
No testimony was received from Helen. She died a
few months before trial commenced in September,
2016, and was never deposed.7 However, Helen’s inter-
ests were represented by counsel throughout the pro-
ceedings.8 No cross claim was made on Helen’s behalf
against the defendant asserting either that he lacked
authority to make the transfers to himself on her behalf
or that he otherwise engaged in any wrongdoing in
connection with these transfers.
After the parties filed posttrial briefs, the court issued
an order directing the plaintiff to file a supplemental
brief clarifying the specific provisions of CUFTA on
which it was relying and the factual and legal basis for
each such claim. The court permitted the defendant
to file a responsive supplemental brief. The plaintiff’s
supplemental brief asserted that the evidence at trial
satisfied four statutory grounds—General Statutes
§§ 52-552e (a) (1) and (2), and 52-552f (a) and (b). The
court did not ask the parties to address, and neither
party’s brief did address, the significance, if any, of
the fact that the transfers had been executed by the
defendant pursuant to a valid power of attorney.
The trial court rendered judgment in favor of the
plaintiff on the breach of contract count against Helen
on the basis of a stipulation in which Helen’s counsel
conceded liability on that count. The court rendered
judgment for the defendant on all counts brought
against him.
In its memorandum of decision, the trial court made
the following findings of fact, which were based solely
on the defendant’s deposition testimony.9 When Helen’s
health first began to deteriorate, the defendant moved
into her home to provide twenty-four hour a day care.
He mainly offered physical aid, such as cooking and
ordering groceries, bathing her, dressing her, and deal-
ing with her incontinence. The defendant’s wife assisted
with Helen’s care. This arrangement lasted for approxi-
mately two years. At that point, the defendant was no
longer able to care for Helen because of his own debili-
tating disease and hired private caretakers to provide
home care for her.
After Helen was admitted to Bel-Air Manor in early
2013, the defendant and his wife continued to provide
care to Helen in the form of managing her personal and
financial affairs. At this time, the defendant held power
of attorney for Helen and the power of attorney pro-
vided the defendant with access to the bank accounts
in which Helen’s Social Security and pension benefits
were electronically deposited. The defendant exercised
the power of attorney to pay some of his mother’s past
and present expenses directly to her creditors. From
March, 2013 to March, 2016, the defendant, ‘‘acting
under the power of attorney for Helen,’’ also wrote
checks to himself and to his wife totaling approximately
$73,000. The defendant and his wife used those funds
to compensate themselves for the care that they had
provided to Helen before and after her admission to
Bel Air, to pay the defendant $600 a month for services
as power of attorney, and as reimbursement for money
loaned to Helen or spent on her behalf.10
On the basis of these facts, the court reached the
following conclusions. With regard to the fraudulent
transfer claim, although all of the parties’ filings and
argument to the court proceeded from the view that
Helen transferred the assets, the trial court on its own
initiative raised the issue of whether the defendant him-
self was the transferor was with regard to these transac-
tions in light of his testimony.11 The court noted that it
was not Helen, the debtor, who had actually executed
the transfers, but instead it was the defendant, a ‘‘third
party transferor.’’ The court raised the issue because
of language in CUFTA that provides for recovery when
there is a transfer ‘‘made . . . by a debtor’’; General
Statutes §§ 52-552e and 52-552f; and which defines
‘‘[d]ebtor’’ as ‘‘a person who is liable on a claim.’’ Gen-
eral Statutes § 52-552b (6). The court then reasoned
‘‘that the act does not apply to the alleged transfers at
issue in this case because [the defendant] is not a debtor
of the plaintiff as that term is defined in the act, and
the plain and unambiguous language of the act does
not apply to third-party transferors.’’ The court did not
appear to consider whether the defendant’s status as
Helen’s attorney-in-fact distinguished him from third
parties generally. The court cited cases reasoning that
the act could apply to a transfer made by a third party
if the debtor ‘‘participated’’ in the transfer but found
no evidence that Helen had ‘‘participated in any fashion
in the claimed fraudulent transfers . . . .’’ Accordingly,
the trial court held that the plaintiff had failed to make
out a claim under CUFTA.
With regard to the unjust enrichment claim, the trial
court agreed that the plaintiff had a right to Helen’s
assets because of its contract with her, but it found that
the defendant also had a right to those assets because
of the services and loans he had provided to Helen
before and after the debt to the plaintiff arose. On the
basis of these facts, the court concluded that the plain-
tiff had failed to prove it had ‘‘a better legal or equitable
right’’ to Helen’s assets than did the defendant. The trial
court therefore held that the plaintiff had not estab-
lished that the defendant was unjustly enriched at the
plaintiff’s expense.
The plaintiff appealed from the judgment of the trial
court with regard to the CUFTA and unjust enrichment
counts rendered in the defendant’s favor. We trans-
ferred the appeal from the Appellate Court to this court.
See General Statutes § 51-199 (c); Practice Book § 65-1.
I
We begin with the fraudulent transfer claim. The
plaintiff advances several arguments as to why the trial
court improperly determined that there was not a trans-
fer by Helen, as debtor, and therefore no liability under
CUFTA. We need only reach one of those arguments,
namely, that the trial court improperly failed to consider
the defendant’s status as Helen’s attorney-in-fact and
to apply agency principles in its analysis of the plain-
tiff’s claim.12
Whether CUFTA’s requirement that the fraudulent
transfer be ‘‘made by the debtor’’ encompasses a trans-
fer made by a debtor’s attorney-in-fact presents a ques-
tion of statutory interpretation, to which we apply well
established rules of construction and exercise plenary
review. See General Statutes § 1-2z (plain meaning
rule); Canty v. Otto, 304 Conn. 546, 557–58, 41 A.3d 280
(2012) (general rules of construction aimed at ascertain-
ing legislative intent).
CUFTA provides relief to an unsecured creditor when
there has been a ‘‘transfer made . . . by a debtor’’ and
that transfer is ‘‘fraudulent . . . .’’ General Statutes
§§ 52-552e and 52-552f. Although the present case turns
on the first requirement—the trial court never reached
the second—statutory meaning is always contextual.
See General Statutes § 1-2z (directing court to consider
related statutes to ascertain meaning). Therefore, we
consider the framework of the entire act before turning
to the specific question raised on appeal.
To establish that a transfer is fraudulent, the creditor
may, but need not, prove actual fraudulent intent. See
General Statutes § 52-552e (a) (1) and (b) (transfer
made with ‘‘actual intent to hinder, delay or defraud
any creditor’’).13 Liability also can be established on
the basis of constructive fraud when a transfer of the
debtor’s assets occurs after the creditor’s claim arose
and other circumstances are present, including that the
debtor has not received reasonably equivalent value in
exchange for the transfer, that the transfer renders the
debtor insolvent (i.e., greater debts than assets), and/
or that the transfer is made to an insider, such as the
debtor’s relative.14 See General Statutes § 52-552e (a)
(2); General Statutes § 52-552f (a) and (b); see generally
Badger State Bank v. Taylor, 276 Wis. 2d 312, 328, 688
N.W.2d 439 (2004) (‘‘[I]ntent is difficult to prove, and
the drafters of the [Wisconsin] Uniform Fraudulent
Transfer Act included provisions addressing transac-
tions that might be considered wrongful toward credi-
tors even if a debtor’s intent to hinder, delay, or defraud
is not proven. The focus in constructive fraud shifts
from a subjective intent to an objective result. Proof
of constructive fraud simply entails proof of the require-
ments of the statute.’’ [Footnotes omitted; internal quo-
tation marks omitted.]). When a creditor proves that a
fraudulent transfer has occurred, the court may order
avoidance of the transfer to the extent necessary to
satisfy the creditor’s claim, or may order various reme-
dies to secure the asset from being dissipated. See Gen-
eral Statutes § 52-552h. Defenses and various other
protections are available to a transferee who has taken
the assets in good faith and under certain other circum-
stances. See General Statutes § 52-552i.
Significantly for purposes of the present case, the act
makes clear that its provisions are not the exclusive
source of law governing fraudulent conveyances. Gen-
eral Statutes § 52-552k provides in relevant part:
‘‘Unless displaced by the provisions of [this act], the
principles of law and equity, including . . . the law
relating to principal and agent . . . supplement the
provisions of said sections.’’15 That common-law princi-
ples and defenses supplement CUFTA is consistent with
our recognition that CUFTA ‘‘is largely an adoption and
clarification of the standards of the common law of
[fraudulent conveyances],’’ except that the act’s reme-
dies are broader than those available under the common
law. (Emphasis omitted; internal quotation marks omit-
ted.) Robinson v. Coughlin, 266 Conn. 1, 9, 830 A.2d
1114 (2003).
This supplementary provision is relevant to the pre-
sent case because a grant of a power of attorney creates
a principal-agent relationship. ‘‘Under our common law,
a power of attorney creates a formal contract of agency
between the grantor and his [attorney-in-fact]. Long v.
Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). Under
our statutory law, this agency relationship encompasses
a variety of transactions that the grantor presumptively
has authorized his [attorney-in-fact] to undertake on
his behalf. General Statutes [(Rev. to 2009)] § 1-42 et
seq.’’16 Kindred Nursing Centers East, LLC v. Morin,
125 Conn. App. 165, 167, 7 A.3d 919 (2010); see also 2A
C.J.S. 589–90, Agency § 23 (1972) (‘‘An attorney-in-fact
is one who is given authority by his principal to do a
particular act not of a legal character; a person
appointed by another by a letter or power of attorney
to transact any business for him out of court. . . .
[A]ttorneys-in-fact created by formal letters of attorney
are merely agents, and their authority and the manner
of its exercise are governed by the principles of the
law of agency.’’ [Footnotes omitted.]). Our statutory law
recognized that, when an attorney-in-fact undertakes
transactions in that capacity, he is acting as the ‘‘alter
ego of the principal . . . .’’ General Statutes (Rev. to
2015) § 1-55.
In light of the agency relationship created between
Helen and the defendant pursuant to the power of attor-
ney, under which the law of agency generally would
impute to Helen the defendant’s transfers of Helen’s
assets, we must consider whether this application of
agency law is displaced by the provisions in the act.
Guidance as to what the phrase ‘‘displaced by’’ means
is available in a comment to an identical provision in
the Uniform Commercial Code (UCC) incorporating
common-law principles and defenses. See General Stat-
utes § 42a-1-103 (b); see also General Statutes § 50a-
64 (incorporating same supplementary principles for
Uniform Foreign-Money Claims Act, General Statutes
§ 50a-50 et seq.). That comment explains that these
common-law principles would be displaced if they were
inconsistent with a provision of the UCC or the UCC’s
principles and policies. See comment (2) to Uniform
Commercial Code § 1-103, Conn. Gen. Stat. Ann. § 42a-
1-103 (b) (West 2009) p. 21.
The policy underlying the act—protecting unsecured
creditors from debtors who place assets beyond the
reach of their unsecured creditors17—undoubtedly is
best served by applying the law of agency to the matter
at hand. See Badger State Bank v. Taylor, supra, 276
Wis. 2d 330 (‘‘The Uniform Fraudulent Transfer Act
[(1984), 7A U.L.A. 274 (1999)] reflects a strong desire
to protect creditors and to allow for the smooth func-
tioning of our [credit based] society. It is a creditor-
protection statute. Without such protection for credi-
tors, [c]reditors would generally be unwilling to assume
the risk of the debtor’s fraudulent transfers.’’ [Footnotes
omitted; internal quotation marks omitted.]). The words
of this court regarding our original fraudulent convey-
ance statute apply equally to CUFTA: ‘‘As the statute
was enacted for the suppression of fraud, the advance-
ment of justice and the promotion of the public good,
it should be liberally and beneficially construed to sup-
press the fraud, abridge the mischief and enlarge the
remedy. . . . [T]he common law . . . supplements
the statute to the end that justice may be done.’’ (Cita-
tions omitted; internal quotation marks omitted.) Allen
v. Rundle, 50 Conn. 9, 32 (1882). Given that the failure
to apply the law of agency would create an easy end
run around the act, and frustrate the ability of creditors
to secure payment for debts owed to them, application
of agency principles is manifestly consistent, not incon-
sistent, with the policies underlying the act. We cannot
hypothesize a single adverse consequence that would
arise from applying agency law under these circum-
stances.
Despite the fact that application of agency law would
advance the policies underlying the act, we are bound to
consider whether its application would be inconsistent
with any specific provisions of the act. To this end, we
observe that, even in the absence of this supplementary
provision, this court has recognized ‘‘the general rule
that [u]nless a statute provides to the contrary . . .
principals may act through agents . . . .’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) Rich-Taubman Associates v. Commissioner
of Revenue Services, 236 Conn. 613, 619, 674 A.2d 805
(1996); see, e.g., id., 620–21 (‘‘Applying the law of agency
to the tax statutes, we conclude that the plaintiff, con-
cededly acting as the city’s agent when purchasing
materials and services for the parking garage, is not
liable for use taxes on purchases made within the scope
of its authority. . . . [General Statutes §] 12-412 [1]
does not abrogate the [common-law] rule of agency
that the actions of an agent, who is acting for a disclosed
principal, are, as a matter of law, the actions of the
principal.’’ [Citation omitted.]). There is no provision
in CUFTA that explicitly or even implicitly provides
that acts of the debtor’s agent shall not be imputed to
the debtor.
Nor do we infer any inconsistency from the fact that
the act applies to ‘‘[a] transfer made or obligation
incurred by a debtor’’; General Statutes §§ 52-552e and
52-552f; and defines a debtor, unsurprisingly, as ‘‘a per-
son who is liable on a claim.’’ General Statutes § 52-
552b (6). It would make no sense for the act to define
debtor to include the debtor’s agent, because an agent
is not liable for the principal’s debt. See Rich-Taubman
Associates v. Commissioner of Revenue Services,
supra, 236 Conn. 619 (‘‘the agent is not liable where,
acting within the scope of his authority, he contracts
with a third party for a known principal’’ [internal quota-
tion marks omitted]); see also 2 Restatement (Third),
Agency §§ 6.01 through 6.04, pp. 3–55 (addressing prin-
cipal and agent liability for contracts executed by
agent). It would similarly be illogical to include the
debtor’s agent in the substantive provisions of the act
(i.e., ‘‘transfer made or obligation incurred by a debtor
or the debtor’s agent’’ [emphasis added]). Agency law
dictates when an agent’s acts shall be imputed to the
principal and the limited circumstances under which
an agent can be liable for a principal’s debt. See, e.g.,
2 Restatement (Third), supra, §§ 6.02 through 6.04, pp.
28–55 (addressing agent’s liability when principal is
unidentified or undisclosed or lacks capacity to be party
to contract). Surely, we would not disregard agency
principles and hold that the debtor was not liable on
the claim simply because the obligation was executed
by the debtor’s authorized agent. See, e.g., Hallas v.
Boehmke & Dobosz, Inc., 239 Conn. 658, 673, 686 A.2d
491 (1997) (‘‘[a] principal is generally liable for the
authorized acts of his agent’’ [internal quotation
marks omitted]).
It is important to be clear that the CUFTA claim in
this appeal does not allege that the defendant/agent is
personally liable on the claim (i.e., the debt for Helen’s
nursing home services) and hence legally is the debtor.
Rather, the claim is that the defendant’s act of transfer-
ring Helen’s assets made under the lawful authority of
a power of attorney is an act imputed to her. Had the
defendant fraudulently transferred Helen’s assets to a
third party, for example, the CUFTA action would have
had to have been brought against that third party, not
the defendant. See 37 Am. Jur. 2d 705–706, Fraudulent
Conveyances and Transfers § 162 (2013).18 The plaintiff
is not claiming that it has the right to recover from the
defendant those assets that were paid to Helen’s other
creditors, only those assets that he transferred as Hel-
en’s attorney-in-fact to himself as transferee.19 Cf. Abbott
Terrace Health Center, Inc. v. Parawich, 120 Conn.
App. 78, 79, 88, 990 A.2d 1267 (2010) (concluding that
allegations stated valid cause of action for fraudulent
transfer against defendant when complaint alleged,
inter alia, that defendant’s aunt ‘‘acting through the
defendant as her [attorney-in-fact], transferred certain
moneys in her bank accounts to the defendant’’ just
before entering into nursing home, transfer of assets
rendered aunt unable to meet her financial obligations,
and aunt conveyed assets without adequate consider-
ation [emphasis added]).
Additional evidence that application of agency princi-
ples would not be inconsistent with the provisions of
the act is reflected in the act’s definition of ‘‘transfer.’’
The term could hardly be defined more broadly: ‘‘every
mode, direct or indirect, absolute or conditional, volun-
tary or involuntary, of disposing of or parting with an
asset or an interest in an asset, and includes payment
of money, release, lease and creation of a lien or other
encumbrance.’’ (Emphasis added.) General Statutes
§ 52-552b (12); see In re Neri Bros. Construction Corp.,
593 B.R. 100, 141 (Bankr. D. Conn. 2018) (describing
identical definition of transfer in federal Bankruptcy
Code being ‘‘as broad as possible’’ [internal quotation
marks omitted]). This sweeping definition was in fact
derived from the United States Bankruptcy Code; see
Unif. Fraudulent Transfer Act (1984) § 1, comment (12),
7A U.L.A. 261 (2017); which has a fraudulent convey-
ance provision similar to the one in CUFTA. See 11
U.S.C. § 548 (2012). In bankruptcy cases in which a
transfer has been executed pursuant to a power of
attorney, the transfer is imputed to the debtor, such
that the case turns exclusively on the question of
whether fraud (actual or constructive) has been estab-
lished under the facts. See, e.g., In re Simione, 229
B.R. 329, 330, 335 (Bankr. W.D. Pa. 1999) (trustee for
creditors was entitled to judgment in case seeking to
avoid transfer executed by debtor’s relatives under
power of attorney on basis of constructive fraud
because ‘‘[t]he [t]ransfer caused the [d]ebtor to become
insolvent and no reasonably equivalent value was given
to the [d]ebtor in exchange for the [t]ransfer’’); see also
In re Gordon, 293 B.R. 817, 822–23 (Bankr. M.D. Ga.
2003) (discussing different approaches taken by courts
as to whether fraudulent intent of agent may be imputed
to debtor in various contexts, including agency in spou-
sal context, and noting that ‘‘[o]ne reason courts are
hesitant to impute intent is that the marital relationship,
by itself, does not always give rise to a legal partnership
or agency.’’).20 Therefore, we see no basis to conclude
that application of agency principles would be inconsis-
tent with the provisions of the act.
The propriety of imputing a transfer made by the
debtor’s agent to the debtor has even greater force in
a case like the present one. The debtor, Helen, was a
represented party in this action, and she did not chal-
lenge the legality or propriety of the transfers. In effect,
Helen’s acquiescence ratified the transfers made by the
defendant.21 See Community Collaborative of Bridge-
port, Inc. v. Ganim, 241 Conn. 546, 561–62, 698 A.2d
245 (1997) (‘‘Ratification requires acceptance of the
results of the act with an intent to ratify, and with
full knowledge of all the material circumstances. . . .
[S]ilence, as well as affirmative acts, may imply an intent
to ratify.’’ [Citations omitted; internal quotation
marks omitted.]).
Finally, we are mindful that a provision in the act
directs the court not only to apply and construe its
provisions ‘‘to effectuate their general purpose,’’ but
also ‘‘to make uniform the law’’ among other states
enacting them. General Statutes § 52-552l. No court,
however, has expressly addressed the question before
us. Courts in three jurisdictions have treated a transfer
by an attorney-in-fact as a transfer subject to the act,
as we do here, but without any analysis of that issue.
See Schempp v. Lucre Management Group, LLC, 18
P.3d 762, 765 (Colo. App. 2000), cert. denied, Colorado
Supreme Court, Docket No. 00SC667 (February 26,
2001); Aristocrat Lakewood Nursing Home v. Mayne,
133 Ohio App. 3d 651, 662–67, 729 N.E.2d 768 (1999);
Rosier v. Rosier, 227 W. Va. 88, 101 n.5, 705 S.E.2d 595
(2010). We surmise that the parties in these cases were
operating under the same logical assumption reflected
in the parties’ pleadings in the present case, that the
act of the agent would be imputed to the principal
as a matter of law. On the other hand, courts in two
jurisdictions have applied the same ‘‘plain meaning’’
analysis that our trial court did, and reached the same
conclusion as did the trial court here, but they too did
not acknowledge the supplementary provision incorpo-
rating agency law, let alone the defendant’s status as
the debtor’s agent. See Folmar & Associates, LLP v.
Holberg, 776 So. 2d 112, 116–18 (Ala. 2000), overruled
in part on other grounds by White Sands Group, L.L.C.
v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009); Presbyterian
Medical Center v. Budd, 832 A.2d 1066, 1074 (Pa.
Super. 2003).
One court has rejected a creditor’s claim that the
Uniform Fraudulent Transfer Act provided for recovery
against the debtor’s attorney-in-fact under agency prin-
ciples but under materially different circumstances. See
Methodist Manor Health Center, Inc. v. Py, 307 Wis. 2d
501, 514–15, 746 N.W.2d 824 (App. 2008). Py addressed a
claim of conversion against the debtor’s granddaughter,
who, pursuant to a power of attorney, executed checks
as specifically directed by her grandmother to other
persons. Id., 504, 506. The granddaughter was neither
the debtor nor the transferee, but the creditor nonethe-
less sought to recover from her. It was in this context
that the Wisconsin Appellate Court expressed the con-
cern that ‘‘strictly applying agency principles in this
scenario would disfavor unknowing and, in many cases,
unsophisticated agents who were doing nothing more
than attempting to assist an elderly parent or grandpar-
ent with their finances.’’ (Internal quotation marks omit-
ted.) Id., 517; cf. Badger State Bank v. Taylor, supra,
276 Wis. 2d 322 (citing supplementary provision in con-
text of transfer by president and principal shareholder
of corporation acting as agent to principal corporation
and stating that ‘‘[n]othing in [the applicable fraudulent
conveyance provision] indicates that it displaces the
law relating to principal and agent’’).
The facts in Py clearly supported the court’s determi-
nation that no recovery could be had under those cir-
cumstances. Nothing in our decision means that an
attorney-in-fact can be personally liable on the princi-
pal’s debt simply because he or she executed the trans-
fers, even if the attorney-in-fact knew that the debtor
may thereby be rendered insolvent. See In re M. Black-
burn Mitchell, Inc., 164 B.R. 117, 123–24 (Bankr. N.D.
Cal. 1994) (citing case law from Seventh and Ninth
Circuit Courts of Appeals for propositions in bank-
ruptcy case that ‘‘[a] party who acts as a conduit and
who merely facilitates the transfer from the debtor to
a third party, is not an ‘initial transferee,’ ’’ and that
court must ‘‘examine whether the party receiving the
funds exercised dominion or control over the money
for its own account, that is, not merely as an agent for
a third party’’).
In sum, applying the law of agency is not inconsistent
with the provisions or policies of the act. Not applying
the law of agency would, in fact, undermine the pur-
poses of the act without providing any commensurate
benefit. If any innocent transferee is the recipient of
funds fraudulently transferred by the debtor’s agent,
the same defenses are available as would have been
available to the transferee if the debtor personally exe-
cuted the transfer. See General Statutes § 52-552i.
We therefore conclude that the trial court improperly
rejected the plaintiff’s fraudulent transfer claim on the
ground that the defendant’s transfers of Helen’s assets
pursuant to a power of attorney were not transfers
made by the debtor. On remand, the trial court must
determine whether such transfers were fraudulent
under any of the theories advanced by the plaintiff.
II
The plaintiff also claims that the trial court improp-
erly rendered judgment for the defendant on the count
alleging unjust enrichment. The plaintiff asserts that
the trial court incorrectly determined that the plaintiff
failed to show it had a better legal or equitable right
to Helen’s assets than the defendant. The crux of the
plaintiff’s argument is that the trial court clearly erred
when it credited the defendant’s testimony establishing
his right to the funds he transferred. Because we cannot
conclude that the challenged findings were clearly erro-
neous, the court’s determination that the plaintiff failed
to establish a superior right to the transferred funds
necessarily stands.
A plaintiff may recover for unjust enrichment when
a contract remedy is unavailable, to the extent that
the defendant has unjustly profited at the plaintiff’s
expense. Horner v. Bagnell, 324 Conn. 695, 707–708,
154 A.3d 975 (2017). ‘‘Unjust enrichment is, consistent
with the principles of equity, a broad and flexible rem-
edy. . . . Plaintiffs seeking recovery . . . must prove
(1) that the defendants were benefited, (2) that the
defendants unjustly did not pay the plaintiffs for the
benefits, and (3) that the failure of payment was to the
plaintiffs’ detriment.’’ (Internal quotation marks omit-
ted.) Id., 708.
‘‘Although unjust enrichment typically arises from a
plaintiff’s direct transfer of benefits to a defendant, it
also may be indirect, involving, for example, a transfer
of a benefit from a third party to a defendant when the
plaintiff has a superior equitable entitlement to that
benefit.’’ New Hartford v. Connecticut Resources
Recovery Authority, 291 Conn. 433, 468, 970 A.2d 592
(2009). In an indirect benefit scenario, the plaintiff must
prove that it has ‘‘a better legal or equitable right’’ to
the disputed benefit than the defendant. 2 Restatement
(Third), Restitution and Unjust Enrichment § 48, p. 144
(2011). This standard is ‘‘highly restrictive.’’ Id., com-
ment (i), p. 159. It ‘‘refer[s] to a paramount interest of
a kind recognized in law or equity—not to the personal
merit or desert of the persons involved, or to considera-
tions of fairness independent of preexisting entitle-
ments.’’ Id., comment (a), p. 145. Specifically, the
plaintiff must prove that its right ‘‘is both recognized,
and accorded priority over the interest of the defendant,
under the law of the jurisdiction.’’ Id., comment (i),
p. 159.
Because the trial court’s equitable determinations
‘‘depend on the balancing of many factors,’’ we review
its ultimate decision as to whether the defendant was
unjustly enriched for abuse of discretion. (Internal quo-
tation marks omitted.) New Hartford v. Connecticut
Resources Recovery Authority, supra, 291 Conn. 452.
Any subsidiary factual determinations by the trial court,
however, are reviewed for clear error. Connecticut
Light & Power Co. v. Proctor, 324 Conn. 245, 258–59,
152 A.3d 470 (2016). A finding is clearly erroneous (1)
if there is no evidence in the record to support it, or
(2) when, although the record provides some support,
the weight of the evidence in the record leaves the
reviewing court with a ‘‘definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Id., 259.
The trial court made two relevant findings on this
issue. First, it found that the plaintiff had an interest
in Helen’s assets. Stemming from Helen’s breach of the
residency agreement, the plaintiff had been undercom-
pensated for more than two years, resulting in unpaid
bills of $208,193.
Second, the court found that the defendant also had
an interest in Helen’s assets. In arriving at this conclu-
sion, it relied on the defendant’s deposition testimony,
which, as we previously noted, was admitted into evi-
dence by the parties’ mutual agreement. For example,
the defendant testified that he ‘‘lived with [Helen] for
over two years and took care of her . . . [twenty-four]
hours a day,’’ cooking for her, bathing her, dressing her,
and changing her adult diapers until he could no longer
do so; that he paid for an in-home care provider and
for ‘‘all the expenses that were required to keep up the
house,’’ such as property tax, oil, utilities, and snow
removal; and that he prepared her litigation documents,
scheduled her medical appointments, and applied for
her financial assistance. The trial court credited this
‘‘unrefuted evidence.’’ It found that the defendant used
the money from Helen’s accounts to compensate him-
self for the care he had provided before she was admit-
ted to the plaintiff’s facility and for the continued
management of her personal and financial affairs, and to
reimburse himself for money he had spent on her behalf.
Critically, the trial court concluded: ‘‘As between the
plaintiff and [the defendant], the plaintiff has not proven
that it has a better legal or equitable right to the funds
of Helen . . . that were paid to [the defendant] and/
or his wife.’’ In other words, although the plaintiff
proved that it had a ‘‘recognized’’ interest in Helen’s
assets, it did not prove that its interest should be
‘‘accorded priority over the interest of [the defendant],
under the law of the jurisdiction.’’ 2 Restatement
(Third), Restitution and Unjust Enrichment, supra, § 48,
comment (i), p. 159. The plaintiff could have met this
burden by presenting evidence to discredit the defen-
dant’s testimony or by pointing to substantive law or
equitable factors that would have given its interest pri-
ority over that of the defendant. See, e.g., Nile v. Nile,
432 Mass. 390, 402, 734 N.E.2d 1153 (2000) (beneficiary
of contractual agreement with third party accorded pri-
ority over recipients of testamentary gift from third
party); Peirce v. Peirce, 994 P.2d 193, 200 (Utah 2000)
(party with contractual right to third party’s assets
accorded priority over recipient of inter vivos gift from
third party). It declined, or neglected, to do so. Indeed,
implicit in the court’s findings is the recognition that
the defendant’s interest accrued in large part before
the plaintiff’s interest began to accrue.
The plaintiff contends, however, that ‘‘no evidence’’
supports the trial court’s factual finding that the defen-
dant had an interest in Helen’s assets. More particularly,
it asserts that the defendant’s deposition testimony was
‘‘self-serving,’’ vague at points, and uncorroborated by
a written contract, a promissory note, receipts, or wit-
nesses.
The plaintiff’s claim founders under well settled law.
The plaintiff is bound by its stipulation that the deposi-
tion testimony could be submitted for the court’s con-
sideration. Once in evidence, the trial court was
permitted to rely on it to the same extent as if the
defendant was present and testifying. See Practice Book
§ 13-31. Undoubtedly there are facts in the record and
evidentiary gaps that reasonably could lead another
trier of fact to find the defendant’s testimony in whole
or part not credible. This court, however, ‘‘cannot retry
the facts or pass upon the credibility of the witnesses.
. . . Rather, [i]t is within the province of the trial court,
when sitting as the fact finder, to weigh the evidence
presented and determine the credibility and effect to
be given the evidence. . . . [I]t is within the province
of the trier of fact to accept or reject parts of the testi-
mony of a single witness.’’ (Citations omitted; internal
quotation marks omitted.) In re Gabriella A., 319 Conn.
775, 790, 127 A.3d 948 (2015). The trial court therefore
was free to credit the defendant’s deposition testimony,
as well as to take into account the absence of a cross
claim by Helen alleging that the defendant improperly
transferred assets to himself.
In sum, it was the plaintiff’s burden to prove that its
rights were superior to those of the defendant. The trial
court’s factual finding that the defendant had an interest
in Helen’s assets was supported by the record and,
therefore, was not clearly erroneous. As such, the trial
court did not abuse its discretion in concluding that
the plaintiff failed to prove it had ‘‘a better legal or
equitable right’’ to Helen’s assets.
The judgment is reversed with respect to the count
of the plaintiff’s complaint alleging a violation of CUFTA
and the case is remanded for a new trial on that count;
the judgment is affirmed in all other respects.
In this opinion PALMER, ROBINSON and ECKER,
Js., concurred.
* This appeal originally was argued before a panel of this court consisting
of Justices Palmer, McDonald, Robinson, D’Auria, Mullins and Kahn. There-
after, Justice Ecker was added to the panel and has read the briefs and
appendices, and listened to a recording of the oral argument prior to partici-
pating in this decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
The defendant testified that there was a power of attorney agreement, but
that agreement was never produced at trial, or at the defendant’s deposition,
which served as the only source of his testimony. As we explain later in
this opinion, the defendant’s authority to execute the transfers pursuant to
the power of attorney was never disputed by the parties. The trial court
expressly found that the transfers were executed pursuant to that authority.
2
The trial court credited the defendant’s testimony that the plaintiff
refused to assist the defendant in reapplying for Helen’s Medicare benefits,
and that the defendant unsuccessfully applied for Medicare benefits on his
mother’s behalf three times during her stay. At the time of her death, Helen
owed the plaintiff approximately $208,000.
3
The plaintiff named Helen as a defendant individually and in her capacity
as trustee of the Helen C. McGee Revocable Trust. Discussion of the matters
relating to the trust, which involved the disposition of certain real property,
is not necessary to the resolution of this appeal.
4
The plaintiff also advanced a claim of misrepresentation against the
defendant for statements regarding Helen’s assets made in a personal finan-
cial information form that the defendant signed and submitted to the plaintiff.
The trial court rendered judgment in favor of the defendant on this count,
finding that he did not know that his statements were false. The plaintiff
does not challenge that holding on appeal.
5
According to the defendant’s deposition testimony, many of the checks
intended to compensate him were made payable to his wife because he did
not maintain a checking account at that time. It appears that the plaintiff’s
CUFTA claim was based on the transfers issued in the names of both the
defendant and his wife. The defendant’s wife was not named as a defendant.
6
The defendant’s testimony was inconsistent on this point. He later testi-
fied that his fees were $1200 per month.
7
According to the defendant’s deposition testimony, Helen was exhibiting
signs of dementia when he lived with her, and that condition became more
constant when she entered into the nursing home.
8
In its memorandum of decision, the trial court noted Helen’s death and
the fact that the plaintiff did not apply to the trial court for an order to
substitute the executor of Helen’s estate after Helen died. The trial court
found that Helen’s and the defendant’s interests ‘‘were represented by their
counsel at trial.’’ Neither the trial court nor the parties otherwise addressed
the significance of Helen’s death with respect to the action proceeding
against her or judgment rendered against her.
9
Counsel for the defendant and Helen did not call any witnesses to testify,
and the only exhibit offered was a statement from Bel Air Manor, dated
March 1, 2016, showing a balance due of $166,758.08.
10
Had the defendant paid himself the $230 daily rate to which he claimed
he was entitled for the two years of personal care he had provided to Helen
before her admission to Bel Air, that sum would have been $167,900. Payment
for the $600 monthly fee for power of attorney services over the approxi-
mately three year period Helen resided at Bel Air would have been $21,600.
The checks that the defendant issued to himself and his wife over that three
year period were for widely varying amounts that did not reflect a clear
relationship to these two sums: fifteen were for amounts in excess of $1000;
seventeen were for amounts in excess of $2000; and two were for $3000.
11
We point out that the court raised the issue of who the transferor was,
sua sponte, because it seems the likely explanation for the fact that the
defendant did not produce, and the plaintiff made no effort to obtain produc-
tion of, the power of attorney agreement. We also note, however, that we
have admonished our courts to give the parties a fair opportunity to provide
briefing and/or argument on any issue that the court raises on its own
initiative. See State v. Connor, 321 Conn. 350, 372, 138 A.3d 265 (2016) (‘‘[I]t
is clear that, at a minimum, the parties must be provided sufficient notice
that the court intends to consider an issue. It is implicit that an opportunity
to be heard must be a meaningful opportunity, in order to satisfy concerns
of fundamental fairness. . . . The parties must be allowed time to review
the record with that issue in mind, to conduct research, and to prepare a
response.’’ [Citation omitted; emphasis omitted.]).
12
The plaintiff also argues that (1) the defendant’s admission in his answer
that Helen transferred the assets was binding on the trial court, and (2)
CUFTA permits liability against a transferee for receipt of those assets,
irrespective of who fraudulently transferred them.
13
General Statutes § 52-552e provides in relevant part: ‘‘(a) A transfer
made or obligation incurred by a debtor is fraudulent as to a creditor, if
the creditor’s claim arose before the transfer was made or the obligation
was incurred and if the debtor made the transfer or incurred the obligation:
(1) With actual intent to hinder, delay or defraud any creditor of the
debtor . . . .
‘‘(b) In determining actual intent under subdivision (1) of subsection (a)
of this section, consideration may be given, among other factors, to whether:
(1) The transfer or obligation was to an insider, (2) the debtor retained
possession or control of the property transferred after the transfer, (3) the
transfer or obligation was disclosed or concealed, (4) before the transfer
was made or obligation was incurred, the debtor had been sued or threatened
with suit, (5) the transfer was of substantially all the debtor’s assets, (6)
the debtor absconded, (7) the debtor removed or concealed assets, (8) the
value of the consideration received by the debtor was reasonably equivalent
to the value of the asset transferred or the amount of the obligation incurred,
(9) the debtor was insolvent or became insolvent shortly after the transfer
was made or the obligation was incurred, (10) the transfer occurred shortly
before or shortly after a substantial debt was incurred, and (11) the debtor
transferred the essential assets of the business to a lienor who transferred
the assets to an insider of the debtor.’’
14
General Statutes § 52-552e (a) provides in relevant part: ‘‘A transfer
made or obligation incurred by a debtor is fraudulent as to a creditor, if
the creditor’s claim arose before the transfer was made or the obligation
was incurred and if the debtor made the transfer or incurred the obligation
. . . (2) without receiving a reasonably equivalent value in exchange for
the transfer or obligation, and the debtor (A) was engaged or was about to
engage in a business or a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the business or transaction,
or (B) intended to incur, or believed or reasonably should have believed
that he would incur, debts beyond his ability to pay as they became due.’’
General Statutes § 52-552f provides: ‘‘(a) A transfer made or obligation
incurred by a debtor is fraudulent as to a creditor whose claim arose before
the transfer was made or the obligation was incurred if the debtor made the
transfer or incurred the obligation without receiving a reasonably equivalent
value in exchange for the transfer or obligation and the debtor was insolvent
at that time or the debtor became insolvent as a result of the transfer
or obligation.
‘‘(b) A transfer made by a debtor is fraudulent as to a creditor whose
claim arose before the transfer was made if the transfer was made to an
insider for an antecedent debt, the debtor was insolvent at that time and
the insider had reasonable cause to believe that the debtor was insolvent.’’
15
General Statutes § 52-552k provides: ‘‘Unless displaced by the provisions
of sections 52-552a to 52-552l, inclusive, the principles of law and equity,
including the law merchant and the law relating to principal and agent,
estoppel, laches, fraud, misrepresentation, duress, coercion, mistake, insol-
vency or other validating or invalidating cause, supplement the provisions
of said sections.’’
16
The Connecticut Statutory Short Form Power of Attorney Act, General
Statutes § 1-42 et seq., was repealed in 2016, after the events at issue in the
present case. See Public Acts 2016, No. 16-40, § 9.
17
Although our court has not expressly addressed the purpose of the act,
many other jurisdictions have recognized that the purpose of a fraudulent
transfer statutory scheme is to prevent debtors from placing assets out of
the reach of unsecured creditors. See, e.g., In re Image Worldwide, Ltd.,
139 F.3d 574, 578 (7th Cir. 1998); In re Demitrus, 586 B.R. 88, 92 (Bankr.
D. Conn. February 27, 2018); Lewis v. Superior Court, 30 Cal. App. 4th 1850,
1873, 37 Cal. Rptr. 2d 63 (1994); Northwestern Memorial Hospital v. Sharif,
22 N.E.3d 1217, 1223 (Ill. App. 2014); Leighton v. Fleet Bank of Maine, 634
A.2d 453, 458 (Me. 1993); Thompson v. Hanson, 168 Wash. 2d 738, 750, 239
P.3d 537 (2009); Badger State Bank v. Taylor, supra, 276 Wis. 2d 330. This
intent is also self-evident in the terms of the act itself.
18
‘‘In all actions brought by creditors to subject property which it is
claimed was fraudulently transferred, the person to whom the property has
been transferred is a necessary party. The fraudulent grantee is a necessary
party defendant in an action to set aside a conveyance as fraudulent since
he or she has an interest in the subject matter of the suit which should not
be affected by a decree unless he or she has been given the right to be
heard. While a grantee who has parted with possession of the property is
a necessary party in some jurisdictions, it is usually the case that he or she
no longer has any interest in the subject matter and therefore is not a
necessary party. In addition, a grantee who is merely a straw person through
which the title is conveyed to another is not regarded as having a sufficient
interest in the property to necessitate making him or her a party to the
action.’’ (Footnotes omitted.) 37 Am. Jur. 2d, supra, § 162, pp. 705–706.
‘‘In the case of a debtor who has retained no legal interest in the property
conveyed, there is a conflict of authority as to whether that person is a
necessary party defendant to an action to set aside a fraudulent conveyance.
In some jurisdictions, apparently on the theory that having parted with all
interest in the property the grantor can no longer be affected by any decree
pertaining to the property, the debtor is not a necessary party to the action
although the debtor may be a proper party. Under other authority, the debtor,
as the originator of the fraudulent conduct complained of, and as the person
directly involved in the fraud in the first instance, is a necessary party to
the action. Of course, where it appears that the debtor has retained some
interest in, or control over, the property conveyed, the debtor is a necessary
party to any suit involving such property.
‘‘Where the creditor has not reduced its claim to judgment, the debtor is
an indispensable party since, in such circumstances, the debtor has the right
to be heard in regard to the validity or amount of the claim. Conversely, it
has been found that where the plaintiff’s claim has been reduced to judgment,
it is not necessary to make the debtor a party.’’ (Footnotes omitted.) 37
Am. Jur. 2d, supra, § 163, p. 707.
19
The trial court’s legal error in the present case may have stemmed from
a misunderstanding of the basis of the plaintiff’s CUFTA claim. The plaintiff’s
complaint makes clear that it sought to recover under CUFTA for the funds
transferred to the defendant only (directly or indirectly through his wife).
An exhibit submitted by the plaintiff listed only those transfers made to the
defendant or his wife. The trial court, however, stated in its analysis of the
CUFTA claim: ‘‘[The defendant], acting as attorney-in-fact for Helen McGee,
transferred various funds to himself, his wife, and others beginning in August,
2012, and continuing throughout this litigation. The plaintiff asserts its fraud-
ulent transfer claims against [the defendant], the third party transferor, and
not Helen McGee, the debtor. Consequently, the court must first consider
whether the act applies to the transfers at issue in this case.’’ (Emphasis
added.) It appears that the trial court failed to recognize that the CUFTA
claim was based on the defendant’s status as transferee, not transferor, and
was limited to transfers made to himself and his wife.
20
Some bankruptcy cases require additional facts beyond the mere agency
relationship when the question is whether the agent’s intent may be imputed
to the principal to prove actual, rather than constructive, fraudulent intent.
Although there is no universal rule, several bankruptcy cases hold that
actual fraudulent intent by the debtor’s agent may be imputed to the debtor
if the agent is the transferee of the assets and retains substantial control over
the debtor. See, e.g., In re Tribune Co. Fraudulent Conveyance Litigation,
Docket No. 11-MD-2296 (RJS), 2017 WL 82391, *5 (S.D.N.Y. January 6, 2017);
In re Elrod Holdings Corp., 421 B.R. 700, 711 (Bankr. D. Del. 2010). Surely,
if the mere act could not be imputed, there would be no need to consider
whether intent could be imputed. See generally 6 A. Resnick & H. Sommer,
Collier on Bankruptcy (16th Ed. 2009) § 727.02 [4], p. 727-23 (‘‘A transfer
of the debtor’s property by an agent or employee with general authority
upon the subject will bar the debtor’s discharge if the transfer was made
within the statutory period with intent to hinder, delay or defraud creditors.
If the fraud is not perpetrated by the debtor or the debtor’s authorized agent,
it cannot be the basis of an objection to the debtor’s discharge.’’). We note
that the facts in the present case might meet this standard in any event,
given Helen’s dementia. See footnote 7 of this opinion. As we previously
indicated, the trial court in the present case never addressed the question
of whether the transfer was fraudulent because it concluded that there was
no transfer subject to the act.
21
What the trial court meant when it found that Helen did not ‘‘participate’’
in the transfers is unclear. The trial court did not address in any manner
the legal implications arising from the power of attorney agreement, and,
therefore, we must assume that its references to participation meant some
other facts, presumably specific direction from Helen for the defendant to
make particular transfers or to take payment for a specific service rather than
Helen’s grant of general authority to issue checks and to take compensation/
reimbursement. Insofar as the trial court relied on cases applying this partici-
pation exception to third-party transfers, without regard to agency, we do
not find these cases relevant to the present case. We observe, however, that
the adoption of this exception in response to policy concerns is in tension
with any purported ‘‘plain meaning’’ of the provisions.
We similarly do not view cases from this court addressing third-party
transfers under the Uniform Fraudulent Conveyance Act, the predecessor
to the current act, helpful. In those cases, the court attributed the third-
party transfer to the debtor and did not indicate whether different facts
would warrant such attribution. See, e.g., D.H.R. Construction Co. v. Don-
nelly, 180 Conn. 430, 433 and n.1, 429 A.2d 908 (1980).