Bongiorno v. Capone , 185 Conn. App. 176 ( 2018 )

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FRANK BONGIORNO v. JOSEPH CAPONE
(AC 40205)
Sheldon, Elgo and Flynn, Js.
Syllabus
The plaintiff, who was a member of A Co., a limited liability company,
sought to recover damages from the defendant for, inter alia, breach of
contract in connection with a dispute involving the sale of the defen-
dant’s membership interest in A Co. to the plaintiff. The plaintiff and
the defendant, who previously each owned a 50 percent membership
interest in A Co., had signed a binding term sheet, which provided that
the plaintiff would purchase the defendant’s interest in A Co. for a
certain sum, and that their agreement to make purchase and sale would
become enforceable on the date that the term sheet was signed. Pursuant
to the term sheet, the parties subsequently executed a settlement
agreement, at which time the plaintiff payed the defendant the purchase
price, and the defendant conveyed his interest in A Co. to the plaintiff.
On the day after the term sheet was signed but before the execution
of the settlement agreement, the defendant withdrew $17,000 from a
checking account owned by A Co. Thereafter, the plaintiff commenced
this action, alleging claims for, inter alia, breach of contract and statutory
theft against the defendant based on the defendant’s withdrawal of that
money. Specifically, the plaintiff’s breach of contract claim alleged that
all assets of A Co., except for certain items of the defendant’s personal
property that were referenced in the term sheet, were to have remained
the assets and property of A Co. when the defendant conveyed his 50
percent interest in A Co. to the plaintiff and, therefore, that the defendant
had breached the provisions of the term sheet by withdrawing $17,000
from A Co.’s checking account. The matter was referred to an attorney
trial referee, who filed a report recommending judgment for the plaintiff.
The trial court subsequently denied the defendant’s motion to dismiss
the operative complaint for lack of subject matter jurisdiction, accepted
the attorney trial referee’s second revised report, and rendered judgment
in favor of the plaintiff on his claims of breach of contract and statutory
theft in accordance with that report. On the defendant’s appeal to this
court, held:
1. The defendant could not prevail on his claim that the breach of contract
count should have been dismissed by the trial court for lack of subject
matter jurisdiction, which was based on his assertion that the plaintiff
had no standing to bring his breach of contract claim because it was A
Co., and not the plaintiff, that suffered any damages as a result of the
defendant’s $17,000 withdrawal: the breach of contract claim did not
seek damages from the defendant for losses he allegedly caused to A
Co. by making an unauthorized withdrawal of money from A Co.’s
checking account but, rather, sought damages for the resulting failure
of the defendant to give the plaintiff full consideration for the purchase
price that he had paid for the defendant’s 50 percent interest in A Co.,
and, thus, to the extent that the defendant, by taking unilateral action
to diminish the value of his membership interest before transferring it
to the plaintiff in exchange for consideration, denied the plaintiff the
benefit of his bargain under the contract, the plaintiff had standing, in
his individual capacity, to bring an action against the defendant for
breach of contract to recover compensatory damages for that lost bene-
fit; moreover, because the plaintiff’s contract with the defendant was
to purchase a 50 percent interest in A Co., the loss of consideration
suffered by the plaintiff due to A Co.’s loss of $17,000 in aggregate value
was only one half of that amount, and, therefore, the trial court should
have awarded the plaintiff damages of only $8500 instead of the full
amount of the $17,000 withdrawal.
2. The trial court having lacked subject matter jurisdiction over the plaintiff’s
statutory theft claim, it improperly rendered judgment in favor of the
plaintiff on the merits of that claim, which should have been dismissed,
as the only injuries resulting from the alleged theft were suffered by A
Co., and not by the plaintiff personally, and, thus, the plaintiff lacked
standing to bring that claim in his individual capacity; the statutory theft
count was based entirely on the defendant’s withdrawal of $17,000 from
the checking account that was owned by A Co., the term sheet and
the settlement agreement did not pass title to A Co.’s assets from the
defendant to the plaintiff, as only the defendant’s membership interest
in A Co. was thereby transferred and, under the allegations as pleaded,
the only injuries resulting from the defendant’s conduct were suffered
by A Co., and the plaintiff could not recover individually for an injury
to A Co. even after he became the sole member of A Co., which, as a
limited liability company, remained a distinct legal entity.
3. This court declined to review the defendant’s unpreserved claim that the
trial court erred in rendering judgment in favor of the plaintiff on his
breach of contract claim without making conclusions of law regarding
the applicability of certain waiver provisions in the settlement
agreement, as that claim was never raised before the trial court, and
the defendant provided no legal basis for his claim that the trial court
had a duty, sua sponte, to reject the allegedly incomplete findings of
the attorney trial referee regarding the subject provisions.
Argued May 22—officially released October 2, 2018
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 Stamford-Norwalk,
where the plaintiff withdrew certain counts of his
revised complaint; thereafter, the matter was referred
to an attorney trial referee, who filed a report recom-
mending judgment for the plaintiff; subsequently, the
court, Hon. Kevin Tierney, judge trial referee, denied
the defendant’s motion to dismiss, sustained in part the
defendant’s objection to the acceptance of the report,
and remanded the matter to the attorney trial referee;
thereafter, the attorney trial referee filed a revised
report recommending judgment for the plaintiff; subse-
quently, the court remanded the matter to the attorney
trial referee, who filed a second revised report recom-
mending judgment for the plaintiff; thereafter, the court
rendered judgment in accordance with the second
revised report, from which the defendant appealed to
this court. Reversed in part; judgment directed.
Richard J. Rapice, with whom, on the brief, were
Peter V. Lathouris and Michael P. Longo, Jr., for the
appellant (defendant).
Mark F. Katz, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, Joseph Capone, appeals
from the judgment of the trial court, rendered in accor-
dance with the second revised finding of facts and
report of an attorney trial referee (referee) to whom
this case was referred for trial, awarding the plaintiff,
Frank Bongiorno: compensatory damages of $17,000 on
the plaintiff’s claim of breach of contract, plus statutory
prejudgment interest on that sum, under General Stat-
utes § 37-3a, at the rate of 10 percent per annum; and
treble damages of $51,000 on the plaintiff’s claim of
statutory theft under General Statutes § 52-564, less
$17,000 to avoid duplication of the damages awarded
for breach of contract.1 The defendant claims that the
court improperly: (1) concluded that the plaintiff had
standing in his individual capacity to pursue claims
of breach of contract and statutory theft against the
defendant based upon his withdrawal of $17,000 from
the checking account of AAA Advantage Carting &
Demolition Service, LLC (company), a limited liability
company in which the defendant had a 50 percent mem-
bership interest that he had agreed to sell to the plaintiff
for $200,000 on the basis of a binding term sheet that did
not authorize the challenged withdrawal; (2) rendered
judgment in favor of the plaintiff on the merits of his
breach of contract claim without making legal conclu-
sions as to the applicability of the waiver-of-suit provi-
sions in the contractual documents to that claim; and
(3) rendered judgment in favor of the plaintiff on the
merits of his statutory theft claim.2
We agree with the defendant that the plaintiff lacked
standing, in his individual capacity, to bring an action
against him in this case to recover damages for losses
he allegedly caused to the company. On that basis, we
conclude that both the plaintiff’s statutory theft claim
and that portion of his breach of contract claim, in
which he sought compensatory damages for diminish-
ing the value of his own preexisting 50 percent interest
in the company, rather than the other 50 percent interest
in the company that he agreed to purchase under the
contract, must be dismissed for lack of subject matter
jurisdiction. To the extent, however, that the plaintiff
sought damages from the defendant for losses he per-
sonally suffered due to the defendant’s withdrawal of
$17,000 from the company’s account based on the
resulting diminution in value of the 50 percent interest
in the company that the defendant had agreed to sell
him in exchange for his payment of $200,000, we find
that the plaintiff had standing to prosecute that claim.
Even so, although the defendant admittedly failed to
raise before the trial court, and thus to preserve for
appellate review, his only present challenge to the mer-
its of that judgment, we further conclude that the
amount of that judgment on the plaintiff’s breach of
contract claim must be reduced, in light of our jurisdic-
tional ruling, to reflect the true extent of the proven
diminution in value of the company resulting from the
defendant’s $17,000 withdrawal from it that he had
standing, in his individual capacity, to recover as dam-
ages in this case. Because the proven diminution of
the company’s aggregate value that resulted from the
defendant’s withdrawal was $17,000, the resulting dimi-
nution in value of the 50 percent interest in the company
that he received from the defendant in consideration
for his payment was only one half of that amount, or
$8500. We, thus, reverse the court’s judgment for the
plaintiff on his breach of contract claim, as to damages
only, and remand this case with direction to render
judgment for the plaintiff on that claim in the modified
amount of $8500, plus prejudgment statutory interest
on that sum, of 10 percent per annum, from the date
on which the defendant’s transfer of interest to the
plaintiff became final until the date of judgment.
The following facts and procedural history are rele-
vant to our review. The plaintiff and the defendant are
brothers-in-law. For many years, both owned 50 percent
interests in the company. In 2012, however, they
decided to end their business relationship. To that end,
the plaintiff and the defendant signed two documents
by which they agreed that the defendant would convey
his 50 percent interest in the company to the plaintiff
for the sum of $200,000. The parties first signed a ‘‘bind-
ing term sheet’’ on August 28, 2012, which provided that
the plaintiff would purchase the defendant’s interest in
the company for $200,000, and that their agreement to
make purchase and sale became enforceable on that
date. Pursuant to the term sheet, the parties agreed to
execute a ‘‘settlement agreement’’ no later than Septem-
ber 7, 2012, at which time the plaintiff would pay the
defendant the agreed upon purchase price, and the
defendant would convey his 50 percent interest in the
company to the plaintiff. Although the term sheet did
not specifically define what was to be included in the
company’s assets as of that date, August 28, 2012, it
did specify that the defendant’s attorneys were to send
to the plaintiff’s attorneys a list of all of the defendant’s
personal property then located in the company offices,
that the defendant must remove such property by Sep-
tember 1, 2012, and that the defendant must remove all
confidential or trade secret information of the company
from his personal files.3 The term sheet did not include
a reference to any checking account belonging to the
company.
On September 7, 2012, the parties executed a settle-
ment agreement, which expressly incorporated the
term sheet and its provisions. The settlement agreement
provided that, upon its execution, the plaintiff would
purchase from the defendant, and the defendant would
sell to the plaintiff, the defendant’s 50 percent interest
in the company for the purchase price of $200,000,4 and
that upon the delivery of the purchase price to the
defendant, he would execute and deliver to the plaintiff
an assignment of his membership interest, irrevocably
transferring his 50 percent interest in the company to
the plaintiff. The settlement agreement further provided
that the defendant would deliver certain specific prop-
erty to the plaintiff at the time of transfer, or as soon
as possible thereafter.5 The settlement agreement pro-
vided that, immediately following the transfer of his
membership interest, the defendant would have no
ownership or any other interest in the company and no
authority to act on the company’s behalf, and that he
would be deemed to have resigned from any and all
positions within the company. The settlement
agreement also included provisions as to mutual special
releases and remedies. The parties released each other
from any and all actions against each other relating to
the company, except with respect to any breach of the
settlement agreement or the term sheet.6 The parties
agreed that, should a party breach the settlement
agreement or the term sheet, the nonbreaching party
would not be prohibited from pursuing or being entitled
to available redress, including the recovery of damages.7
On August 29, 2012, the day after the binding term
sheet was signed, the defendant withdrew $17,000 from
a checking account owned by the company. On Septem-
ber 7, 2012, the parties executed the settlement
agreement, and the defendant signed an assignment of
membership interest, conveying all of his rights, title
and interest in his 50 percent membership interest in
the company to the plaintiff in exchange for the pur-
chase price of $200,000.
The plaintiff commenced this action against the
defendant by causing him to be served with a writ,
summons and complaint on September 28, 2012. On
December 10, 2012, in response to the defendant’s
request to revise, the plaintiff filed a revised complaint,
which thereby became the operative complaint in this
action. The operative complaint initially included the
following claims: (1) breach of contract; (2) violation
of the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq.; (3) conversion; (4)
statutory theft in violation of § 52-564; and (5) breach
of contract as to Diaz Boncap, LLC.8 The plaintiff later
withdrew his claim under CUTPA and his breach of
contract claim as to Diaz Boncap, LLC.
In his first count, pleading breach of contract, the
plaintiff alleged that all assets of the company, except
for items of the defendant’s personal property that were
referenced in the term sheet, were to have remained the
assets and property of the company when the defendant
conveyed his 50 percent interest in the company to
the plaintiff pursuant to the settlement agreement. He
therefore claimed that the defendant had breached the
provisions of the term sheet by withdrawing $17,000
from the company checking account on August 29, 2012.
The defendant subsequently filed an answer in which
he denied all material allegations of the operative com-
plaint and asserted seven special defenses, including
that the plaintiff had suffered no actual damages as a
result of the defendant’s challenged $17,000 withdrawal.
The plaintiff denied all of the defendant’s special
defenses.
The matter was ultimately referred for trial to a ref-
eree, who conducted the trial on June 24, 2015. The
documentary evidence presented at trial included: the
binding term sheet, the settlement agreement, a copy
of the withdrawal slip for the $17,000, a list of personal
items to be removed from the company by the defen-
dant, a Sprint phone bill, a Sprint account history, and
a spreadsheet of financial distributions from the com-
pany to the plaintiff and the defendant. The plaintiff
and the defendant both testified at the trial.
The plaintiff testified that he and the defendant had
entered into an agreement on August 28, 2012, under
which the defendant agreed to convey his 50 percent
interest in the company to the plaintiff. He further testi-
fied that the document dated August 28, 2012, was a
binding term sheet that memorialized generally his
agreement with the defendant, and that another docu-
ment, dated September 7, 2012, was a more formalized
agreement in which he and the defendant agreed on
the details of the transfer of the defendant’s 50 percent
interest. The plaintiff and the defendant arrived at the
purchase price of $200,000 by considering ‘‘[t]he
amount in the [company’s] checkbook . . . the
amount of receivables owed to the company, the
amount of payables paid out, and [the value] of the
equipment’’ prior to the sale of the company. The plain-
tiff testified that the term sheet provided that the defen-
dant would be permitted to remove all of his personal
property from the company’s offices after he furnished
a list of such property, and that the defendant had in
fact come to the offices on August 28, 29 and 30, 2012,
to clear out his computer and personal items.
The defendant withdrew $17,000 from the company’s
account on August 29, 2012. The plaintiff never author-
ized the withdrawal, and the defendant never told the
plaintiff that he intended to make the withdrawal. The
plaintiff confirmed that the checking account from
which the defendant made the withdrawal belonged
to the company and was not the plaintiff’s personal
checking account. The plaintiff further testified that,
pursuant to the term sheet, he believed that the defen-
dant’s ownership in the company had ended on August
28, 2012. He contended, on that basis, that the defen-
dant’s August 29, 2012 withdrawal constituted theft.
According to the plaintiff, he and the defendant had
adopted a standard business practice for making with-
drawals from the company checking account. In accor-
dance with that practice, he and the defendant would
compensate themselves from the income of the com-
pany, as deposited in the account, by taking weekly
disbursements of $1000, ‘‘if the checkbook . . .
allow[ed] it,’’ but they would not take such disburse-
ments on the weeks when the company did not have
sufficient funds in the account with which to make
them. They did not pay themselves retroactively for
any missed weeks. The plaintiff and the defendant also
made withdrawals from the company account to sup-
port other property they jointly owned; the plaintiff
characterized such withdrawals as capital contribu-
tions. Payments from the company account always
were made equally to the plaintiff and the defendant,
with the exception of reimbursements for minor busi-
ness purchases that they made. At the end of the year,
based upon their accountant’s determination, the plain-
tiff and the defendant would issue a check from the
company account to the defendant in an amount repre-
senting the taxes he was required to pay on his income
from the company that year, and a check to the plaintiff
in an identical amount.9 The plaintiff testified that these
tax reimbursement withdrawals were not made in years
when their tax burdens were very low. The plaintiff
testified that the company’s business financial records
contained no entry documenting the defendant’s
$17,000 withdrawal from the company checking
account.10
The plaintiff claimed that the effective date of the
transfer of the defendant’s interest in the company to
him was August 28, 2012, pursuant to the binding term
sheet. He confirmed, however, that the actual closing
date for the sale of the defendant’s 50 percent interest
in the company to him was September 7, 2012. Although
before the binding term sheet was signed, the defendant
had taken care of the bills and finances of the company,
after it was signed, the plaintiff’s secretary took care
of all deposits and the plaintiff’s son wrote all the
checks. The plaintiff reiterated that the defendant did
not engage in the company business activity after
August 28, 2012.
In his testimony, the defendant admitted that,
although he had signed the binding term sheet on
August 28, 2012, he withdrew $17,000 from the com-
pany’s checking account on August 29, 2012. The defen-
dant confirmed that there was no mention of the
$17,000, or of his right to receive that sum from the
company, in either the binding term sheet or the settle-
ment agreement. He testified that $9000 of the $17,000
he withdrew from the company account represented
nine weeks of $1000 disbursements that he had taken
retroactively to make up for weeks when no disburse-
ments could be made because there were insufficient
funds in the account with which to make them. He
testified that the other $8000 of the $17,000 withdrawal
had been taken to cover his estimated tax burden on
income he had received from the company from January
1 through August 30, 2012. He claimed that it was a
standard business practice for him to withdraw money
from the account in this way for tax reimbursement
purposes. According to the defendant, the account con-
tained approximately $60,000 when he made the $17,000
withdrawal from it, but he did not tell the plaintiff about
the withdrawal because he and the plaintiff were not
communicating at the time. He claimed that he was
still working for the company until sometime between
August 29 and September 7, 2012. He also claimed that
he was conducting normal business operations for the
company, including making out checks, until September
7, 2012, and thus, that his duties at the company did
not cease, and he was not out of the company, until
that date.
On November 5, 2015, the referee filed his first report
and a motion for acceptance of the report and the entry
of judgment in accordance therewith. In the report,
the referee first found that, although the settlement
agreement was executed approximately one week after
the parties signed the term sheet, the provisions of the
term sheet had become binding and enforceable as of
August 28, 2012. The term sheet provided that the actual
transfer of the defendant’s interest in the company to
the plaintiff was to occur no later than September 7,
2012. The referee further found that, at the time the
term sheet was signed, on August 28, 2012, the price
the parties had agreed to for the plaintiff’s purchase of
the defendant’s 50 percent interest in the company had
been based in material part upon a valuation of the
company’s assets on the date the term sheet became
enforceable, which included all the cash in the company
account from which the defendant made the $17,000
withdrawal on August 29, 2012. The referee found, on
that basis, that the defendant had breached his contract
with the plaintiff by taking money from the company
account that he had agreed would remain the property
of the company at the time his 50 percent interest in
the company was transferred to the plaintiff. Reasoning
further that, upon the completion of the sale pursuant
to the parties’ contract, the plaintiff would become the
sole owner of the company and, thus, of all of its assets,
the referee awarded the plaintiff the full value of the
defendant’s $17,000 withdrawal to compensate him for
diminution in the value of the consideration he received
from the defendant for his payment of $200,000, plus
prejudgment statutory interest on that amount pursuant
to § 37-3a, from the date of the withdrawal until the
date of judgment at the rate of 10 percent per annum.
Although acknowledging implicitly that the actual trans-
fer of the defendant’s interest in the company did not
take place until September 7, 2012, when the settlement
agreement was signed and the plaintiff paid the defen-
dant the sum of $200,000, the referee found that the
defendant’s ownership rights in the company ceased to
exist on August 28, 2012. Therefore, further finding that
the defendant’s actions in withdrawing the $17,000 had
been taken with the intent to deprive the plaintiff, as
the sole member of the company upon completion of
the parties’ contract, of the money so withdrawn, he
found that the plaintiff met his burden of proof as to
his claims of conversion and statutory theft, and he
awarded the plaintiff treble damages of $51,000 for stat-
utory theft, pursuant to § 52-564.11
The defendant filed an objection to the referee’s
report and a memorandum in opposition to the motion
to accept that report on November 23, 2015, in which
he argued, inter alia, that the referee had failed to file
the report in compliance with Practice Book § 19-8
because the report was formatted as a memorandum
of decision and did not set forth in separately and con-
secutively numbered paragraphs the ultimate facts
found and the conclusions drawn therefrom; the conclu-
sions of facts in the first report were not properly
reached on the basis of the subordinate facts found;
and the referee reached incorrect legal conclusions,
including that the plaintiff had a sufficient personal
property interest in the $17,000 withdrawn by the defen-
dant to support his individual claims for damages. The
defendant also filed a motion to dismiss the operative
complaint for lack of subject matter jurisdiction, claim-
ing that the $17,000 the defendant had withdrawn from
the company account belonged to the company rather
than to the plaintiff individually and, thus, that the plain-
tiff, who had brought suit in his individual capacity
only, lacked standing to maintain any claim for damages
based upon that withdrawal.
By order and memorandum of decision dated Febru-
ary 22, 2016, the court declined to accept the referee’s
report. The basis for its ruling was that the report did
not comply with the requirements of Practice Book
§ 19-8 for referee reports. The court therefore ordered
the referee to redraft his report within 120 days of its
order. By a separate memorandum of decision issued
on that same day, the court denied the defendant’s
motion to dismiss, ruling that, by claiming that the plain-
tiff was not the proper party to commence or prosecute
this action, ‘‘the defendant [had sought] a remedy more
appropriate for a motion to strike, the failure to join
the proper party.’’ The court found that the only two
parties to the contracts at issue were the plaintiff and
the defendant, that each party had previously owned a
50 percent interest in the assets of the company, which
included the checking account from which the defen-
dant had withdrawn the $17,000, and thus, when the
transaction by which the plaintiff purchased the defen-
dant’s interest in the company was completed, the plain-
tiff would own all the assets of the company, including
the checking account in question. The court held for
that reason that the plaintiff had pleaded a ‘‘colorable
claim of direct injury’’ on the basis of the defendant’s
withdrawal, and so it denied the defendant’s motion to
dismiss. (Internal quotation marks omitted.)
On May 26, 2016, the referee filed his revised findings
of fact and report. On June 14, 2016, the defendant filed
an objection to the revised report and a memorandum
in support of his objection, claiming, inter alia, that the
revised report failed to comply with Practice Book § 19-
8 by failing to set forth facts sufficient for the court to
make a determination on the plaintiff’s first, third and
fourth causes of action, and reiterating his claim that
the plaintiff had failed to prove that he had a sufficient
property interest in the $17,000 the defendant had with-
drawn from the company account to support his individ-
ual claims for money damages against the defendant.
By order and memorandum of decision dated August
3, 2016, the trial court declined to accept the revised
report because it did not state the standard of proof
the referee had used in rendering his factual findings
on the plaintiff’s claim of statutory theft and did not
cite the legal authority upon which the referee was
relying in recommending an award of statutory interest,
or recommend a rate at which such interest should be
awarded.12 The court therefore ordered the referee to
submit a new report within 120 days after conducting
whatever further proceedings he deemed necessary for
that purpose.
On October 20, 2016, the referee held a conference
in which the parties’ counsel both participated, during
which the referee offered the defendant an opportunity
to schedule a further hearing on the issue of prejudg-
ment statutory interest. After counsel conferred with
one another on the issue, they reported that the defen-
dant would not request a further hearing on the issue
of interest and, thus, asked the referee to prepare his
second revised report based solely upon the evidence
presented at trial.
On December 2, 2016, the defendant filed a preemp-
tive objection to the referee’s second revised report,
arguing that it would not be filed, as the court had
ordered, within 120 days of August 3, 2016. The referee
filed his second revised report13 on December 6, 2016,
along with a motion for acceptance of the report and
the entry of judgment in accordance therewith. On
December 23, 2016, the defendant filed a second objec-
tion to the second revised report, claiming not only that
the report had been filed beyond the court ordered
deadline, but that it was objectionable in substance for
the reasons stated in his objections to the referee’s
prior reports.
On February 27, 2017, the court accepted the referee’s
second revised report and rendered judgment in favor
of the plaintiff in accordance with that report. As for
the defendant’s objection based on timeliness, the court
ruled that, although 120 days from August 3, 2016, was
indeed December 1, 2016, the report had been timely
filed because the 120 day period for filing it did not
begin to run until October 20, 2016, the date of his final
conference with counsel. As for the defendant’s other
objections, the court refused to revisit the issues
decided in its earlier memorandum of decision denying
the defendant’s motion to dismiss, dated November 25,
2015. The court then adopted the referee’s findings on
the merits without independent analysis. The court
therefore found that the facts found by the referee
established the plaintiff’s right to judgment in his favor
on his claim of breach of contract, in the amount of
$17,000 in compensatory damages, plus prejudgment
statutory interest on that sum at the rate of 10 percent
per annum, and on his claim of statutory theft, treble
damages in the amount of $51,000, less $17,000 as dupli-
cative of the damages awarded for breach of contract.
Accordingly, it rendered judgment in the plaintiff’s favor
on those counts. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the court erred in
determining that the plaintiff had standing to maintain
this action. We conclude that the plaintiff had standing
to maintain his breach of contract claim. We agree with
the defendant, however, that the plaintiff lacked stand-
ing to bring a statutory theft claim on the facts of
this case.
‘‘Standing is the legal right to set judicial machinery
in motion.’’ (Internal quotation marks omitted.) Ma’Ay-
ergi & Associates, LLC v. Pro Search, Inc., 115 Conn.
App. 662, 667, 974 A.2d 724 (2009). ‘‘The issue of stand-
ing implicates a court’s subject matter jurisdiction and
is subject to plenary review. . . . Standing is estab-
lished by showing that the party claiming it is authorized
by statute to bring suit or is classically aggrieved. . . .
The fundamental test for determining aggrievement
encompasses a well-settled twofold determination:
first, the party claiming aggrievement must successfully
demonstrate a specific, personal and legal interest in
[the subject matter of the challenged action], as distin-
guished from a general interest, such as is the concern
of all members of the community as a whole. Second,
the party claiming aggrievement must successfully
establish that this specific personal and legal interest
has been specially and injuriously affected by the [chal-
lenged action].’’ (Citation omitted; internal quotation
marks omitted.) Channing Real Estate, LLC v. Gates,
326 Conn. 123, 137, 161 A.3d 1227 (2017). ‘‘Standing
requires no more than a colorable claim of injury; a
[party] ordinarily establishes . . . standing by allega-
tions of injury. Similarly, standing exists to attempt to
vindicate arguably protected interests.’’ (Internal quota-
tion marks omitted.) Ma’Ayergi & Associates, LLC v.
Pro Search, Inc., supra, 667.
‘‘Subject matter jurisdiction involves the authority of
the court to adjudicate the type of controversy pre-
sented by the action before it. . . . [A] court lacks dis-
cretion to consider the merits of a case over which it
is without jurisdiction . . . . The subject matter juris-
diction requirement may not be waived by any party,
and also may be raised by a party, or by the court sua
sponte, at any stage of the proceedings, including on
appeal.’’ (Internal quotation marks omitted.) O’Reilly
v. Valletta, 139 Conn. App. 208, 212–13, 55 A.3d 583
(2012), cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013).
‘‘[I]t is the burden of the party who seeks the exercise
of jurisdiction in his favor . . . clearly to allege facts
demonstrating that he is a proper party to invoke judi-
cial resolution of the dispute. . . . One cannot right-
fully invoke the jurisdiction of the court unless he [or
she] has, in an individual or representative capacity,
some real interest in the cause of action, or a legal or
equitable right, title or interest in the subject matter of
the controversy. . . . [A]s a general rule, a plaintiff
lacks standing unless the harm alleged is direct rather
than derivative or indirect. . . .
‘‘The requirement of directness between the injuries
claimed by the plaintiff and the conduct of the defen-
dant also is expressed, in our standing jurisprudence,
by the focus on whether the plaintiff is the proper party
to assert the claim at issue. . . . Thus, to state these
basic propositions another way, if the injuries claimed
by the plaintiff are remote, indirect or derivative with
respect to the defendant’s conduct, the plaintiff is not
the proper party to assert them and lacks standing to
do so. [When], for example, the harms asserted to have
been suffered directly by a plaintiff are in reality deriva-
tive of injuries to a third party, the injuries are not
direct but are indirect, and the plaintiff has no standing
to assert them.’’ (Internal quotation marks omitted.)
Padawer v. Yur, 142 Conn. App. 812, 816–17, 66 A.3d
931, cert. denied, 310 Conn. 927, 78 A.3d 145 (2013); see
also O’Reilly v. Valletta, supra, 139 Conn. App. 213–14.
A
‘‘The elements of a breach of contract claim are the
formation of an agreement, performance by one party,
breach of the agreement by the other party, and dam-
ages.’’ (Internal quotation marks omitted.) CCT Com-
munications, Inc. v. Zone Telecom, Inc., 327 Conn.
114, 133, 172 A.3d 1228 (2017). For a plaintiff to have
standing to bring an action seeking damages for breach
of contract, he must allege and prove that he was a
party to the contract and, thus, was entitled to enforce
the contract for his own benefit, and that the other
party’s breach of the contract caused him to suffer
damages in his individual capacity.
On appeal, the defendant argues that the plaintiff
had no standing to bring this claim because it was the
company, and not the plaintiff, that suffered any dam-
ages as a result of his $17,000 withdrawal. In his breach
of contract claim, however, the plaintiff did not seek
damages from the defendant for losses he allegedly
caused to the company by making an unauthorized with-
drawal of money from it, but rather sought damages
for the resulting failure of the defendant to give him
full consideration for the $200,000 he had paid for the
defendant’s 50 percent interest in the company, with
the understanding that the company’s aggregate assets
at the time of transfer would be those owned by the
company on August 28, 2012. The parties’ contract for
the defendant to sell that membership interest to the
plaintiff was a personal undertaking between them to
which the company was not itself a party. The member-
ship interest thereby purchased was personal property
that the defendant had the right to sell to the plaintiff,
and the plaintiff had the right to receive, own, enjoy,
and dispose of as he wished. See General Statutes (Rev.
to 2011) § 34-169.14 Therefore, if and to the extent that
the defendant, by taking unilateral action to diminish
the value of that membership interest before transfer-
ring it to the plaintiff in exchange for his agreed upon
payment for it, denied the plaintiff the benefit of his
bargain under the contract, the plaintiff had standing,
in his individual capacity, to sue the defendant for
breach of contract to recover compensatory damages
for that lost benefit.
The referee found that the $17,000 withdrawn by the
defendant from the company checking account was
among the assets the parties had agreed, under the
binding term sheet, would remain the property of the
company at the time the defendant’s 50 percent interest
in the company was transferred to the plaintiff. To make
the plaintiff whole for this failure of consideration, the
court awarded the plaintiff the full amount of that with-
drawal as compensatory damages for the company’s
lost value, plus prejudgment statutory interest on that
sum, from the date of the withdrawal to the date of
judgment.
Because, however, the plaintiff’s contract with the
defendant was to purchase only a 50 percent interest
in the company, the loss of consideration suffered by
the plaintiff due to the company’s loss of $17,000 in
aggregate value was only one half of that amount, or
$8500. The plaintiff’s damages for breach of contract
must, therefore, be reduced to $8500. Accordingly, we
thus reverse the court’s judgment for the plaintiff on
his breach of contract claim as to damages only, and
remand this case with direction to render judgment for
the plaintiff on that claim in the amount of $8500, plus
prejudgment interest of 10 percent per annum on that
sum from the date the undervalued interest was trans-
ferred until the date of judgment.15
B
‘‘Section 52-564 provides: Any person who steals any
property of another, or knowingly receives and con-
ceals stolen property, shall pay the owner treble his
damages. We consistently have held that [s]tatutory
theft under § 52-564 is synonymous with larceny under
General Statutes § 53a-119. . . . A person commits lar-
ceny within the meaning of . . . § 53a-119 when, with
intent to deprive another of property or to appropriate
the same to himself or a third person, he wrongfully
takes, obtains or withholds such property from an
owner. An owner is defined, for purposes of § 53a-119,
as any person who has a right to possession superior to
that of a taker, obtainer or withholder. General Statutes
§ 53a-118 (a) (5).’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Rana v. Terdjanian,
136 Conn. App. 99, 113–14, 46 A.3d 175, cert. denied,
305 Conn. 926, 47 A.3d 886 (2012).
‘‘A limited liability company is a distinct legal entity
whose existence is separate from its members. . . . A
limited liability company has the power to sue or to be
sued in its own name; see General Statutes [Rev. to
2011] §§ 34-124 (b) and 34-186; or may be a party to an
action brought in its name by a member or manager.
See General Statutes [Rev. to 2011] § 34-187.’’16 (Citation
omitted.) O’Reilly v. Valletta, supra, 139 Conn. App.
214; see also Padawer v. Yur, supra, 142 Conn. App.
817; Wasko v. Farley, 108 Conn. App. 156, 170, 947 A.2d
978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008).
‘‘General Statutes [Rev. to 2011] § 34-167 (a) clearly
establishes that [p]roperty transferred to or otherwise
acquired by a limited liability company is property of
the limited liability company and not of the members
individually and that [a] member has no interest in
specific limited liability company property.’’17 (Internal
quotation marks omitted.) Mukon v. Gollnick, 151 Conn.
App. 126, 132, 92 A.3d 1052 (2014).
‘‘A member or manager . . . may not sue in an indi-
vidual capacity to recover for an injury based on a
wrong to the limited liability company. . . . [A] mem-
ber or manager of a limited liability company is not a
proper party to a proceeding by or against a limited
liability company solely by reason of being a member
or manager of the limited liability company, except
where the object of the proceeding is to enforce a mem-
ber’s or manager’s right against or liability to the limited
liability company or as otherwise provided in an
operating agreement . . . .’’ (Internal quotation marks
omitted.) Padawer v. Yur, supra, 142 Conn. App.
817–18; see also O’Reilly v. Valletta, supra, 139 Conn.
App. 214–15; Wasko v. Farley, supra, 108 Conn. App.
170.
This court has repeatedly held that damages suffered
by a limited liability company cannot be recovered by
a member of the limited liability company bringing the
case in an individual capacity. In Wasko v. Farley, supra,
108 Conn. App. 170–71, because the plaintiff brought
the action in her individual capacity and the limited
liability company was not a party, damages incurred
by the limited liability company were not at issue in
the case, and we held that the court properly declined
to instruct the jury on damages resulting from additional
costs incurred by the limited liability company. In
Ma’Ayergi & Associates, LLC v. Pro Search, Inc., supra,
115 Conn. App. 666, we disagreed with the plaintiff’s
argument that he had standing as an individual to assert
all causes of action on behalf of his companies because
he was the sole member of those companies. ‘‘[A] corpo-
ration is a separate legal entity, separate and apart from
its stockholders. . . . It is an elementary principle of
corporate law that . . . corporate property is vested
in the corporation and not in the owner of the corporate
stock. . . . That principle also is applicable to limited
liability companies and their members.’’ (Internal quota-
tion marks omitted.) Id. In Padawer v. Yur, supra, 142
Conn. App. 818, we held that ‘‘[a]lthough the plaintiff
[was] the sole member of [the limited liability com-
pany], that [did] not impute ownership of the limited
liability company’s assets to the plaintiff,’’ and that the
plaintiff’s position as the sole member ‘‘[did] not provide
him with standing to recover individually for harm to
the limited liability company.’’ In O’Reilly v. Valletta,
supra, 139 Conn. App. 216, we held that the plaintiff
‘‘lacked the requisite direct personal interest in the
lease, the leased premises or the restaurant business
conducted by his [limited liability] company on those
premises to confer standing on him to complain of any
breach of the lease or of any harm to the business
resulting therefrom’’ and, therefore, that ‘‘[t]he claim
should have been dismissed for lack of subject matter
jurisdiction . . . .’’
In the present case, the statutory theft count is based
entirely on the defendant’s withdrawal of $17,000 from
the company’s checking account. The facts demon-
strate that it is the company, and not the plaintiff, that
would have standing to assert a statutory theft claim
on the basis of the defendant’s conduct. The plaintiff
has not demonstrated a specific, personal and legal
interest in the money separate from that of the com-
pany. The company owned the checking account from
which the money was taken. The trial court’s finding
that the term sheet and the settlement agreement
passed title to the company business assets from the
defendant to the plaintiff is incorrect; only the defen-
dant’s membership interest in the company was thereby
transferred. Under these allegations, the only injuries
resulting from the defendant’s conduct, as stated in the
plaintiff’s statutory theft count, were suffered by the
company, not by the plaintiff personally. The company
is a limited liability company and is, therefore, a distinct
legal entity from the plaintiff, who is simply a member
of that entity. Even after the plaintiff became the sole
member of the company, the company remained a dis-
tinct legal entity. Because a member of a limited liability
company cannot recover for an injury allegedly suffered
by the limited liability company, we conclude that the
plaintiff lacked standing to pursue a claim of statutory
theft in this case. Accordingly, we conclude that the
trial court lacked subject matter jurisdiction over the
plaintiff’s statutory theft claim. The court improperly
rendered judgment for the plaintiff on the merits of
his statutory theft claim. The claim should have been
dismissed for lack of subject matter jurisdiction rather
than decided on its substantive merits.
The judgment for the plaintiff on his statutory theft
claim is reversed because the plaintiff lacked standing
to bring it in his individual capacity. This case is
remanded with direction to dismiss that claim for lack
of subject matter jurisdiction.
II
The defendant next claims that the trial court erred
in rendering judgment in favor of the plaintiff on his
breach of contract claim without making conclusions
of law as to the applicability of the waiver-of-suit provi-
sions in the contractual documents. The defendant con-
tends that, pursuant to the settlement agreement, the
parties agreed to ‘‘forever release, remise, acquit, waive
and discharge . . . [the] other party . . . from any
and all actions, causes of action, suits, debt, dues, sums
of money . . . trespasses, damages . . . claims and
demands whatsoever, in law or in equity, which against
a party . . . [or another party] ever had, now have or
hereafter can, shall or may have for, upon or by reason
of any matter, cause or thing whatsoever from the begin-
ning of the world to the date of [the settlement]
agreement . . . [except with respect to any breach of
this agreement or the term sheet].’’ (Internal quotation
marks omitted.); see footnote 6 of this opinion. He
argues that the execution of the settlement agreement
resulted in a waiver of any claims that relate to his
conduct on or before September 7, 2012, and, thus, that
the plaintiff would only have a cause of action against
him if the plaintiff sought to enforce any claim made
in a previous litigation or sought to enforce the provi-
sions of the term sheet and the settlement agreement.
The plaintiff argues that the defendant has failed to
preserve this issue for appellate review by not filing a
transcript of the hearing before the referee in accor-
dance with Practice Book § 19-14. The defendant did
file the transcript of the hearing before the referee on
November 23, 2015. We conclude, however, that the
defendant failed to preserve this issue for our review
by not raising it before the trial court.
After a thorough review of the record, we find that
the defendant did not raise this defense at any time
before the trial court. In his appellate brief, in fact, the
defendant concedes that he did not raise this defense
at the time of trial. He argues, however, that the trial
court had a duty, sua sponte, to reject the allegedly
incomplete factual finding of the referee regarding the
alleged waiver-of-suit provisions of the contract docu-
ments. The defendant provides no legal basis for this
assertion.
Pursuant to Practice Book § 60-5, we are not bound
to consider a claim that was not distinctly raised at
trial. Thus, we decline to address this claim.
The judgment is reversed in part and the case is
remanded with direction to render judgment for the
plaintiff on his claim of breach of contract in the modi-
fied amount of $8500, plus prejudgment statutory inter-
est on that sum from the time the settlement agreement
was executed until the time of judgment, at the rate of
10 percent per annum, and to render judgment dismiss-
ing the plaintiff’s statutory theft claim for lack of subject
matter jurisdiction; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The plaintiff’s complaint also pleaded claims of violation of the Connecti-
cut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and breach
of contract involving a separate company, Diaz Boncap, LLC. The plaintiff
withdrew those claims prior to trial. Additionally, the plaintiff’s complaint
pleaded a claim of conversion. The trial court found that this claim was moot
because damages for conversion and statutory theft cannot be separately
awarded based upon the taking of the same sum of money; it therefore
found for the defendant on that count. The plaintiff also claimed in his first
count that the defendant had failed to transfer two cell phone numbers to
him. The referee found in favor of the defendant on that claim, and the
court upheld the decision. It is not an issue on appeal.
2
In his brief, the defendant also claimed that the court erred in rendering
judgment in favor of the plaintiff on the plaintiff’s claim of conversion. This
claim is unfounded, as the defendant makes no mention of conversion in
his argument, and the court determined that the plaintiff’s conversion claim
was moot. See footnote 1 of this opinion.
We do not address the defendant’s third claim in this opinion because
that claim is rendered unnecessary by our resolution of his first claim.
3
The full provision provides as follows: ‘‘No later than 3:00 p.m. on Friday,
August 31, 2012, [the defendant’s] attorneys shall transmit to [the plaintiff’s]
attorneys a list of all personal property belonging to [the defendant] that
[the defendant] intends to remove from [the company’s] offices. [The defen-
dant] shall have the right to remove all books and records of Boncap Realty,
LLC, Boncap Recycling, LLC, and Plymouth Boncap, LLC, necessary for
managing and operating such entities pursuant to Section 9 below. [The
plaintiff] shall be entitled to copies of all such documents at the expense
of the respective entity whose documents are copied. [The defendant] shall
remove all such items from [the company’s] offices no later than 5:00 p.m.
on Saturday, September 1, 2012. [The plaintiff] may observe the removal.
Thereafter, [the defendant] shall have no rights to occupy [the company’s]
offices. If there is a dispute as to what items [the defendant] may remove
from [the company’s] offices, such dispute shall be submitted to the Mediator
for a final, binding and non-appealable decision to be rendered no later than
[September 7, 2012]. [The defendant] shall remove any confidential or trade
secret information of [the company] from his personal files. However, [the
defendant] shall have access in the future to any [company] information
necessary for tax, financial or legal purposes pertaining to the period of his
ownership of [the company].’’
4
The settlement agreement included a handwritten addition here, initialed
by both the plaintiff and the defendant, stating that $25,000 of the $200,000
‘‘shall be held in escrow by the mediator, to be distributed to [the defendant]
upon completion of the transfer of phone number 203-329-3878 to [the
plaintiff].’’ This addition is not at issue in this appeal.
5
The provision, in relevant part, provides as follows: ‘‘In addition, [the
defendant] shall deliver, to the extent he has possession . . . custody or
control, all customer lists, contracts, vehicle titles, passwords, computer
codes, computer discs and sticks and backups, accounts, telephone equip-
ment, files, books of account, bank records, correspondence, invoices, pur-
chase orders, receipts and any and all other records, accounts, documents,
or tangibles, without limitation, which are proprietary to [the company];
and [the defendant] shall not retain originals or copies of said items, whether
such said copies are in electronic or any other form. The [company] tele-
phone numbers and services, 203-329-3878, presently located at 31 Laurel
Ledge Rd., Stamford, CT 06903, as well as telephone number 203-324-9961,
shall be immediately (within one (1) business day) transferred to 79 Hardesty
Rd., Stamford, CT 06903, and [the defendant] shall not use these numbers
or services for any purpose whatsoever; password to the time clock; pass-
code to reprogram security system at Diaz garage; IP Address and password
to the West Ave. camera system; IP Address and password to camera system
at Diaz Garage; any other needed passwords; the key schedule for Diaz
building that [the defendant] took with him when he left; the two memory
[backup] sticks that were used to back up [the company’s] system nightly
with the information still in them; company navigation in [the defendant’s]
possession; company digital camera in [the defendant’s] possession; newly
purchased company I-phone in [the defendant’s] wife’s possession; company
mobile phone in [the defendant’s] possession; letter from [the defendant]
to credit card company, Sprint and any other company needed, as primary
name on account, that he is no longer with the company . . . and that [the
plaintiff] is the primary contact on the account; and any other documents
needed to facilitate the transition.’’
6
The provision includes the following, in relevant part: ‘‘Each Party . . .
hereby forever releases, remises, acquits, waives and discharges each other
Party . . . from any and all actions, causes of action, suits . . . trespasses,
damages . . . claims and demands whatsoever, in law or equity, which
against a Party or . . . another Party . . . ever had, now have or hereafter
can, shall or may have for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the date of this Agreement
arising solely from or related to [the company], except with respect to any
breach of this Agreement or the Term Sheet. . . .
‘‘It is understood by each Party that there is a risk that subsequent to the
execution of this Agreement, a Party may discover facts different from or
in addition to the facts which he now knows or believes to be true with
respect to the subject matter of this Agreement . . . . Each Party intends
this Agreement to apply to all unknown or unanticipated results, as well as
those known and anticipated, except such facts as may have been [wilfully]
and intentionally withheld . . . .’’
7
The relevant provision includes the following language: ‘‘Each of the
Parties . . . agrees that, should a Party breach any of the provisions of this
Agreement or the Term Sheet, the non-breaching Party will be irreparably
harmed . . . . Nothing shall be construed as prohibiting any non-breaching
Party from pursuing or being entitled to any other available redress for such
breach or threatened breach including the recovery of damages. . . .’’
8
Diaz Boncap, LLC, was another company jointly owned by the plaintiff
and the defendant. Provisions detailing the sale of the defendant’s 50 percent
interest in that company to the plaintiff were included in both the binding
term sheet and the settlement agreement. The plaintiff later withdrew all
claims regarding that company, and it is not at issue in this appeal.
9
The plaintiff testified that ‘‘[the defendant] didn’t have the readily avail-
able funds . . . or he didn’t wanna to come out-of-pocket, so he wanted
to know what part of his tax burden was attributed to [the company], so
if [$]15,000 was attributed . . . to [the company], he would get a check
for [$]15,000; because we were fifty-fifty partners, I would take a check
for $15,000.’’
10
We note that the record of distributions in 2012 from the company to
both the defendant and the plaintiff, which was an exhibit at the trial, uphold
the plaintiff’s testimony as to the disbursements. This record makes no
reference to either $8000 or $9000 paid to either the defendant or the plaintiff
on August 29, 2012, and it shows that each payment that was made was in
equal amounts to each party.
11
The referee was not asked to make findings regarding the waiver-of-
suit provisions to which the defendant refers on appeal, and, thus, he made
no such findings.
12
The referee’s first report and second revised report both included the
amount of statutory interest awarded to the plaintiff as well as its legal basis.
13
The referee’s second revised report contained factual findings identical
to his first report as to the counts of breach of contract and statutory theft
and the underlying facts.
14
We note that chapter 613 of the General Statutes, §§ 34-100 through 34-
242, was repealed, effective July 1, 2017. See Public Acts 2016, No. 16-97,
§ 110. We refer in this opinion to the statutory provisions in effect at the
time of the alleged breach of contract and statutory theft.
15
We note that, pursuant to Paulus v. LaSala, 56 Conn. App. 139, 150,
742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000), § 37-
3a provides interest to the date final judgment is rendered.
We also note that there is a discrepancy in the trial court’s judgment
awarding prejudgment statutory interest. The court adopted the referee’s
finding that the transfer of the defendant’s 50 percent interest in the company
was not executed until September 7, 2012. However, it awarded prejudgment
statutory interest starting from August 29, 2012, the date of the withdrawal,
until the date of judgment. On remand, prejudgment interest must be calcu-
lated from September 7, 2012, the date on which the defendant breached
the contract by failing to provide full consideration to the plaintiff, as agreed
to, in the form of a 50 percent membership interest in the company with
all of the assets it had on the date the term sheet was signed and agreed to.
16
See footnote 14 of this opinion.
17
See footnote 14 of this opinion.