Smith v. Marshview Fitness, LLC , 191 Conn. App. 1 ( 2019 )

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BRANT SMITH v. MARSHVIEW
FITNESS, LLC, ET AL.
(AC 41219)
Prescott, Elgo and Bishop, Js.
Syllabus
The plaintiff brought an action against the defendant M Co., seeking to
recover, inter alia, damages for the allegedly fraudulent transfer of cer-
tain assets to M Co. The plaintiff, who was the owner of two fitness
centers, sold the businesses to R, who bought the businesses through
C Co. and O Co. That purchase was financed by a bank loan from W
Co. that was secured by a security interest in the assets of C Co. and
O Co. Subsequently, M Co. reached an agreement with R to purchase
the assets of C Co. and O Co. The agreement was approved by W Co.,
which subsequently released its lien on the assets of C Co. and O Co.
in exchange for $100,000, even though its loan exceeded $800,000, and
the plaintiff released his subordinate lien on those assets in exchange
for $59,806.13. M Co. then sold the assets of C Co. and O Co. to a new
tenant in the building for $159,806.13. The plaintiff thereafter brought
the present action, alleging violations of the Uniform Fraudulent Trans-
fer Act (UFTA) (§ 52-552a et seq.), common-law fraudulent transfer, and
violations of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-
110a et seq.). The plaintiff claimed that M Co., C Co., and O Co. conspired
to strip C Co. and O Co. of assets sufficient to satisfy their indebtedness
to him by fraudulently transferring those assets to M Co. for a price
that was not reasonably equivalent to their value. After the trial court
granted a motion for summary judgment filed by M Co. and rendered
judgment thereon, it denied the plaintiff’s motion to reargue, and the
plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on his claim that the trial court improperly
concluded that the transfer of the property of C Co. and O Co. to M
Co. was not fraudulent under the common law or UFTA, which was
based on the court’s determination that the property did not constitute
‘‘assets’’ because it was encumbered by a valid lien in excess of its
value: that court determined, on the basis of an affidavit submitted by
the plaintiff’s expert witness, that because it was undisputed that the
property transferred to M Co. had a value of $551,437 and was encum-
bered by a valid lien held by W Co. in excess of $800,000 at the time
of that transfer, it did not meet the definition of ‘‘assets,’’ the plaintiff’s
own deposition testimony and an affidavit submitted by a member of
M Co. supported the court’s finding as to the amount of the W Co. lien,
and the plaintiff did not submit any evidence in opposition to the motion
for summary judgment that disputed the amount of that lien; moreover,
the plaintiff’s claim that the transfer of assets was not limited to the
personal property or equipment of C Co. and O Co. but, instead, included
the businesses of C Co. and O Co., the value of which exceeded the W
Co. lien, was unavailing, as the record was clear that M Co. did not
purchase the businesses of C Co. and O Co. but only the personal
property, consisting of the gym and office equipment, and, therefore,
the record supported the trial court’s determination that the property
transferred to M Co. did not constitute ‘‘assets’’ that were subject to
fraudulent conveyance because there was no genuine issue of material
fact that the property was encumbered by a valid lien that exceeded
its value at the time of the transfer.
2. The plaintiff could not prevail on his claim that the trial court improperly
rendered summary judgment on his CUTPA claim, which was based on
his claim that the underlying conduct on which he claimed that M Co.
violated CUTPA was broader than the facts supporting his fraudulent
transfer claims: the plaintiff’s claim was belied by the complaint itself,
wherein the plaintiff simply incorporated the facts from his fraudulent
transfer counts and added allegations that those facts constituted an
unfair or deceptive practice by M Co. that caused him to suffer an
ascertainable loss in violation of CUTPA, and although, with respect to
his fraudulent transfer claims, the plaintiff set forth an allegation, which
he then incorporated into his CUTPA count, that M Co. secretly con-
spired to purchase the property from C Co. and O Co. to strip them of
any assets to satisfy their debts to him, such a bare assertion did not
raise a claim of a deceptive or unfair trade practice that was factually
or legally distinct from the plaintiff’s claims relating to alleged fraudulent
transfers; moreover, the plaintiff’s discussion of this issue in his brief
on appeal was confined to a single paragraph in which he failed to
explain, other than in sweeping generalities, how that allegation, if
proven, would amount to an unfair trade practice, separate and distinct
from the claims relating to fraudulent transfer.
3. The trial court did not abuse its discretion in denying the plaintiff’s motion
to reargue the motion for summary judgment; the plaintiff’s motion to
reargue sought to rehash the arguments that the plaintiff previously had
made in opposition to the motion for summary judgment, which had
already been presented to, and rejected by, the trial court.
Argued March 11—officially released June 25, 2019
Procedural History
Action to recover damages for, inter alia, the allegedly
fraudulent transfer of certain property to the named
defendant, and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the
court, Aurigemma, J., granted the named defendant’s
motion for summary judgment and rendered judgment
thereon; thereafter, the court denied the plaintiff’s
motion to reargue, and the plaintiff appealed to this
court. Affirmed.
Rowena A. Moffett, for the appellant (plaintiff).
Kenneth J. McDonnell, with whom, on the brief, was
Michael L. McGlinchey, for the appellee (named
defendant).
Opinion
PRESCOTT, J. In this commercial dispute relating to
the sale of certain property belonging to two fitness
centers, the plaintiff, Brant Smith, appeals from the
summary judgment rendered in favor of the defendant
Marshview Fitness, LLC.1 The trial court concluded that
the defendant was entitled to summary judgment
because the transfer of certain property, in which the
plaintiff claims to have had an economic interest, was
not fraudulent, as a matter of law, under either the
common law or the Uniform Fraudulent Transfer Act
(UFTA), General Statutes § 52-552a et seq. In doing so,
the trial court also rejected the plaintiff’s related claim
under the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.
On appeal, the plaintiff claims, among other things,2
that the trial court improperly (1) concluded that the
transfer at issue was not fraudulent under the common
law or UFTA because the property that was transferred
did not constitute ‘‘assets,’’ (2) rejected his CUTPA
claim on the ground that it was based solely on his
allegations of fraudulent transfer, and (3) denied his
motion to reargue. We affirm the judgment of the
trial court.
The trial court set forth the following factual and
procedural history. ‘‘The plaintiff was the owner of two
fitness centers that had been operated as ‘Shoreline
Health and Fitness’ in Clinton and Old Saybrook, Con-
necticut. On September 15, 2010, the plaintiff and his
former partners sold the businesses to Ryan Rothschild.
Rothschild bought the businesses through two separate
companies, SHF-Clinton, LLC, and SHF-Old Saybrook,
LLC (SHF entities). The Rothschild/SHF entities’ pur-
chase of the plaintiff’s fitness centers was financed by
Wells Fargo Bank [Wells Fargo] under a program spon-
sored by the United States Small Business Administra-
tion [SBA]. The principal amount of the Wells Fargo
loan at the time of the plaintiff’s sale to the SHF entities
was $1.2 million. That loan was secured by a security
interest in the assets of the SHF entities, which was
prior in right to the security interest of the plaintiff.
‘‘As part consideration for the sale to Rothschild, the
plaintiff took back a promissory note for $150,000 and
another note for $300,000. Rothschild defaulted on the
notes, and the plaintiff commenced [an action] against
him titled Smith v. Rothschild, [Superior Court, judicial
district of Middlesex, Docket No. CV-XX-XXXXXXX-S]
(Rothschild action). In that case, the plaintiff filed a
motion for temporary injunction and court-ordered
inspection of company records dated October 21, 2014.
That motion sought to enjoin Rothschild from selling
the interests or assets of the SHF entities and an order
permitting the plaintiff to inspect and copy the books
and records of the SHF entities. The plaintiff never
sought a hearing or otherwise proceeded on the forego-
ing motion.
‘‘In connection with the motion for temporary injunc-
tion, the plaintiff signed an affidavit in which he averred
that the $300,000 note referred to above was secured
by a security agreement [that] gave the plaintiff ‘a con-
tinuing security interest in all of the assets of [the SHF
entities].’ . . . [The plaintiff] also averred that ‘I main-
tain that I am entitled to a right of first refusal with
respect to any proposed sale of the [SHF entities].’ . . .
‘‘While the plaintiff was litigating his claims against
Rothschild, he was simultaneously negotiating with
Rothschild to purchase the assets of the SHF entities.
The plaintiff’s offer to purchase the assets of the SHF
entities was accepted by Rothschild. However, Wells
Fargo did not accept the offer because SBA regulations
prohibited repurchase of the assets by the plaintiff, a
former owner. At that time, Rothschild and the SHF
entities owed Wells Fargo in excess of $800,000 on the
SBA loan used to purchase the assets from the plaintiff.
Wells Fargo had to agree to release its security interest
in the SHF entities’ assets before [they] could be sold.
‘‘[The defendant] was the landlord for the SHF-Clin-
ton fitness center. The members of [the defendant] are
Todd Pozefsky and John Giannotti. After the plaintiff’s
failed attempt to purchase the assets of the SHF entities,
Pozefsky and Giannotti negotiated with Rothschild for
the purpose of purchasing the assets of the SHF entities
so that Rothschild would voluntarily vacate the [defen-
dant’s] premises.
‘‘[The defendant] reached an agreement with Roth-
schild to purchase the assets of the SHF entities. The
agreement was approved by Wells Fargo, which agreed
to accept $100,000 to release its security interest in
the SHF entities’ assets, even though its loan exceeded
$800,000. Wells Fargo approved the sale by Rothschild
contingent on the plaintiff receiving no more than
$63,500 in exchange for the release of his subordinate
security interest in the assets of the SHF entities. At
his deposition, the plaintiff admitted that he was aware
of the [defendant’s] purchase, and that he was repre-
sented by counsel in the preparation of a payoff letter
accepting $59,806.13 in exchange for a release ‘terminat-
ing [his Uniform Commercial Code] lien on the assets
of the [SHF entities].’ . . .
‘‘On February 26, 2016, Wells Fargo released its lien
on the SHF entities’ assets in exchange for $100,000,
and the plaintiff released his subordinate lien on those
assets in exchange for $59,806.13.3 On February 29,
2016, [the defendant] then sold the assets to a new
tenant in the building for $159,806.13, the exact amount
it had paid for the assets.
‘‘After the sale of the SHF entities’ assets, Rothschild
stopped defending the Rothschild action and allowed
a default judgment to enter against himself and the SHF
entities. Rothschild then appealed the default judgment
and filed bankruptcy proceedings. Although the plaintiff
released his lien in order to permit the sale of the SHF
entities’ assets to occur, he now claims that [the] sale
constituted a fraudulent transfer as to him.’’ (Citations
omitted; footnote added.)
The plaintiff brought this action by way of a four
count complaint dated August 10, 2016, alleging viola-
tions of UFTA under General Statutes §§ 52-552e and
52-552f in the first two counts, respectively, a common-
law fraudulent transfer in the third count, and a viola-
tion of CUTPA in the fourth count. The plaintiff alleged
that the defendant and the SHF entities conspired to
‘‘strip the SHF entities of assets sufficient to satisfy their
indebtedness to [him]’’ by fraudulently transferring the
assets of the SHF entities to the defendant for a price
that was not reasonably equivalent to their value.
On August 1, 2017, the defendant moved for summary
judgment, arguing that it was entitled to judgment as
a matter of law on all counts of the plaintiff’s complaint.
The plaintiff objected to the defendant’s motion,
asserting that the defendant had ‘‘failed to meet its
burden of showing that there was no genuine issue as
to any material fact.’’ By way of a written memorandum
of decision filed on November 16, 2017, the court
granted the defendant’s motion for summary judgment.
The court concluded that the defendant was entitled to
judgment as a matter of law on the plaintiff’s fraudulent
transfer claims for three reasons: (1) the plaintiff con-
sented to and voluntarily participated in the transaction
that he now claims was fraudulent; (2) the defendant
retained no proceeds from the transaction; and (3) the
property that was transferred did not constitute
‘‘assets’’ of the SHF entities because it was encumbered
by a valid lien. The court further concluded that the
defendant was entitled to judgment as a matter of law
on the plaintiff’s CUTPA claim because that claim was
based on the invalid claims of fraudulent transfer. The
court denied the plaintiff’s subsequent motion to rear-
gue, and this appeal followed.
We begin by setting forth the relevant standard of
review that governs our review. ‘‘The standard of review
of a trial court’s decision granting summary judgment
is well established. Practice Book § 17-49 provides that
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
courts are in entire agreement that the moving party
. . . has the burden of showing the absence of any
genuine issue as to all the material facts . . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue. . . . Once the moving party has met
its burden, however, the [nonmoving] party must pre-
sent evidence that demonstrates the existence of some
disputed factual issue. . . . Our review of the trial
court’s decision to grant the defendant’s motion for
summary judgment is plenary. . . . On appeal, we
must determine whether the legal conclusions reached
by the trial court are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision of the trial court.’’ (Citations
omitted; internal quotation marks omitted.) Lucenti v.
Laviero, 327 Conn. 764, 772–73, 176 A.3d 1 (2018). With
these principles in mind, we turn to the plaintiff’s claims
on appeal.
I
The plaintiff first challenges the trial court’s summary
judgment on his claims of fraudulent transfer. Specifi-
cally, the plaintiff argues that the court improperly con-
cluded that the transfer of the SHF entities’ property
to the defendant was not fraudulent on the ground that
the property did not constitute ‘‘assets’’ because it was
encumbered by a valid lien in excess of its value. We
are not persuaded.
‘‘A party alleging a fraudulent transfer or conveyance
under the common law bears the burden of proving
either: (1) that the conveyance was made without sub-
stantial consideration and rendered the transferor
unable to meet his obligations or (2) that the convey-
ance was made with a fraudulent intent in which the
grantee participated. . . . The party seeking to set
aside a fraudulent conveyance need not satisfy both of
these tests. . . . These are also elements of an action
brought pursuant to . . . §§ 52-552e (a) and 52-552f
(a). . . . Indeed, although [UFTA] provides a broader
range of remedies than the common law . . . [it] is
largely an adoption and clarification of the standards
of the common law of [fraudulent conveyances] . . . .’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Certain Underwriters at Lloyd’s, Lon-
don v. Cooperman, 289 Conn. 383, 394–95, 957 A.2d 836
(2008). Accordingly, our Supreme Court has considered
claims of fraudulent transfer based on the common law
and claims based on UFTA together. See id.; see also
National Loan Investors, L.P. v. World Properties, LLC,
79 Conn. App. 725, 731 n.8, 830 A.2d 1178 (2003) (‘‘[o]ur
analysis proceeds under the UFTA, but a common-law
analysis would reach the same result’’), cert. denied,
267 Conn. 910, 840 A.2d 1173 (2004).
Section 52-552e (a) sets forth the test to determine
whether a transfer is fraudulent: ‘‘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; or (2) without receiving a reason-
ably 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.’’
The term transfer is defined by General Statutes § 52-
552b (12) to mean ‘‘every mode, direct or indirect, abso-
lute or conditional, voluntary or involuntary, of dispos-
ing of or parting with an asset or an interest in an asset,
and includes payment of money, release, lease and cre-
ation of a lien or other encumbrance.’’ Section 52-552b
(2) defines an asset as, ‘‘property of a debtor, but the
term does not include . . . (A) Property to the extent
it is encumbered by a valid lien . . . .’’ A valid lien,
pursuant to § 52-552b (13), is ‘‘a lien that is effective
against the holder of a judicial lien subsequently
obtained by legal or equitable process or proceedings.’’
Thus, a transfer cannot be considered fraudulent if, at
the time of the transfer, the transferred property is
encumbered by valid liens exceeding the property’s
value because the property would no longer be consid-
ered an asset under § 52-552b (2), and only assets may
be transferred fraudulently. See generally Dietter v.
Dietter, 54 Conn. App. 481, 494, 737 A.2d 926, cert.
denied, 252 Conn. 906, 743 A.2d 617 (1999).4
Here, the trial court determined that it was undis-
puted that the property transferred to the defendant
had a value of $551,437 and was encumbered by a valid
lien held by Wells Fargo in excess of $800,000 at the
time of that transfer. The trial court based its valuation
on an affidavit submitted by the plaintiff’s expert wit-
ness, Joe Fay. On that basis, the court concluded that
the property did not meet the definition of ‘‘assets’’ and
that the transfer of that property could not be consid-
ered fraudulent.
The plaintiff’s challenge to the trial court’s conclusion
that the property transferred did not constitute ‘‘assets’’
is twofold. First, the plaintiff claims that there was a
dispute as to the amount of the Wells Fargo lien. In
support of its finding of the amount of the Wells Fargo
lien, the trial court cited to the plaintiff’s own deposition
testimony in which he estimated the outstanding debt
to Wells Fargo to be ‘‘in the neighborhood of $800,000.’’
The defendant filed with its memorandum of law in
support of summary judgment, the affidavit of Pozefsky,
in which he averred that, at the time of the allegedly
fraudulent transaction, the transferred property was
encumbered by a lien held by Wells Fargo in excess of
$800,000. The plaintiff did not submit any evidence in
opposition to summary judgment that disputed the
amount of the lien and, thus, failed to demonstrate the
existence of a genuine issue of material fact as to it.
Second, the plaintiff argues that the transfer was not
limited to the personal property or equipment of the
SHF entities but, instead, included the SHF businesses
themselves, the value of which exceeded the Wells
Fargo lien. The plaintiff contends that the property
transferred to the defendant included the ‘‘customer
list and business goodwill’’ of the SHF entities. The
plaintiff has not provided a citation to the record in
support of this argument, and our exhaustive search of
the record has revealed no evidentiary support for it.
The Asset Purchase Agreement clearly provides that
the defendant would purchase ‘‘certain assets’’ of the
SHF entities, including ‘‘all equipment, furniture and
fixtures, inventory and computers’’ that are listed on
Exhibit A, Assets-Equipment List, attached thereto.
Likewise, Pozefsky’s affidavit states that the defendant
agreed to purchase ‘‘all equipment, furniture and fix-
tures, inventory and computers utilized by the SHF enti-
ties . . . .’’ The payoff letter from Wells Fargo also
references ‘‘collateral comprising all equipment, furni-
ture, fixtures, inventory and computers.’’ The record is
clear that the defendant did not purchase the businesses
of the SHF entities but only the personal property, con-
sisting of the gym and office equipment.5
On the basis of the foregoing, we conclude that the
record supports the trial court’s determination that the
property transferred to the defendant did not constitute
‘‘assets’’ that were subject to fraudulent conveyance
because there was no genuine issue of material fact
that it was encumbered by a valid lien that exceeded
its value at the time of the transfer. Accordingly, the
court did not improperly render summary judgment in
favor of the defendant on all three of the fraudulent
transfer counts of the plaintiff’s complaint.
II
The plaintiff also claims that the trial court improp-
erly rendered summary judgment on count four alleging
that the defendant violated CUTPA. The plaintiff con-
tends that the underlying conduct on which he claims
the defendant violated CUTPA is broader than the facts
supporting his fraudulent transfer claims. We disagree.
The plaintiff brought this action by way of a four
count complaint; three counts alleging fraudulent trans-
fer and a fourth count alleging a violation of CUTPA. In
the fourth count, the plaintiff incorporated by reference
most of the paragraphs of the first three counts of his
complaint and set forth two additional paragraphs. In
addition to the fraudulent transfer allegations that he
incorporated into his CUTPA count, the plaintiff
alleged: ‘‘[The defendant’s] conduct as aforesaid consti-
tutes unfair or deceptive acts or practices in the conduct
of trade or commerce, in violation of CUTPA.’’ The
plaintiff also alleged: ‘‘As a direct result of [the defen-
dant’s] wrongful conduct, [the plaintiff] has suffered
ascertainable loss. More specifically, but without limita-
tion, [the defendant’s] purchase of the SHF entities’
assets for less than reasonable value deprived the SHF
entities of sufficient means to satisfy their indebtedness
to [the plaintiff].’’
In granting summary judgment on the plaintiff’s
CUTPA claim, the trial court explained: ‘‘In count four of
the complaint, the plaintiff alleges a violation of CUTPA
based on the fraudulent conveyances alleged in counts
one through three. As set forth above, the court has
found that there were no fraudulent conveyances.
Therefore, summary judgment enters on count four, as
well as counts one through three.’’
‘‘CUTPA is, on its face, a remedial statute that broadly
prohibits unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade
or commerce. . . . [CUTPA] provides for more robust
remedies than those available under analogous com-
mon-law causes of action, including punitive damages
. . . and attorney’s fees and costs, and, in addition to
damages or in lieu of damages, injunctive or other equi-
table relief. . . . To give effect to its provisions, [Gen-
eral Statutes] § 42-110g (a) of [CUTPA] establishes a
private cause of action, available to [a]ny person who
suffers any ascertainable loss of money or property,
real or personal, as a result of the use or employment
of a method, act or practice prohibited by [General
Statutes §] 42-110b . . . .’’ (Internal quotation marks
omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins.
Co., 317 Conn. 602, 623, 119 A.3d 1139 (2015).
The plaintiff argues that ‘‘the underlying conduct
which formed the basis of [his] CUTPA claim is broader
than the facts supporting the fraudulent transfer
claims.’’ This argument is belied by the complaint itself,
wherein the plaintiff simply incorporated the facts from
his fraudulent transfer counts and added allegations
that those facts constituted an unfair or deceptive prac-
tice by the defendant that caused him to suffer an ascer-
tainable loss in violation of CUTPA.
It is true that, with respect to his fraudulent transfer
claims, the plaintiff set forth an allegation, which he
then incorporated into his CUTPA count, that the defen-
dant secretly conspired to purchase the subject prop-
erty from the SHF entities to strip them of any assets
to satisfy their debts to him. We are not persuaded that
this bare assertion raises a claim of a deceptive or unfair
trade practice that is factually or legally distinct from
his claims relating to alleged fraudulent transfers.
Indeed, the plaintiff’s discussion of this issue in his brief
on appeal is confined to a single paragraph in which
he fails to explain, other than in sweeping generalities,
how that allegation, if proven, would amount to an
unfair trade practice, separate and distinct from the
claims relating to fraudulent transfer. We, therefore,
conclude that the plaintiff’s argument that his CUTPA
claim was broader than his allegations of fraudulent
transfer is unavailing.
III
The plaintiff finally claims that the trial court erred in
denying his motion to reargue the motion for summary
judgment. We disagree.
‘‘The standard of review for a court’s denial of a
motion to reargue is abuse of discretion. . . . As with
any discretionary action of the trial court . . . the ulti-
mate [question for appellate review] is whether the trial
court could have reasonably concluded as it did. . . .
‘‘The purpose of a reargument is . . . to demonstrate
to the court that there is some decision or some princi-
ple of law which would have a controlling effect, and
which has been overlooked, or that there has been a
misapprehension of facts. . . . It also may be used to
address . . . claims of law that the [movant] claimed
were not addressed by the court. . . . [A] motion to
reargue [however] is not to be used as an opportunity
to have a second bite of the apple . . . .’’ (Internal
quotation marks omitted.) Seaport Capital Partners,
LLC v. Speer, 177 Conn. App. 1, 16–17, 171 A.3d 472
(2017), cert. denied, 331 Conn. 931, A.3d (2019).
In his motion to reargue, including his memorandum
of law in support of the motion and several exhibits,
which consisted of 166 pages in total, the plaintiff
asserted that the court had ‘‘overlook[ed] controlling
principles of law and demonstrate[d] a misapprehen-
sion of certain key facts, which preclude[d] the [render-
ing] of summary judgment in [the] defendant’s favor.’’
The court summarily denied the plaintiff’s motion.
The plaintiff claims on appeal that the court abused
its discretion in denying his motion to reargue ‘‘given
the controlling legal precedent and key facts precluding
the entry of summary judgment, which were presented
to the court but which the court failed to correct follow-
ing its decision, resulting in an injustice because of the
court’s oversight of material issues of fact and law.’’
On the basis of our review of the plaintiff’s motion to
reargue, we conclude that, as to the dispositive issues
addressed in this opinion, the plaintiff was seeking to
rehash the arguments that he made in opposition to
summary judgment, which had already been presented
to and rejected by the trial court.6 We, therefore, con-
clude that the court did not abuse its discretion in
denying the plaintiff’s motion to reargue.
The judgment is affirmed.
In this opinion the other judges concurred.
1
SHF-Clinton, LLC, and SHF-Old Saybrook, LLC, also are defendants in
this action. They have been defaulted for failing to appear and the claims
against them are still pending. Because they have not participated in this
appeal, any reference herein to the defendant is to Marshview Fitness, LLC.
2
With respect to the fraudulent transfer claims, the plaintiff challenges
each of the three legal grounds on which the court based its conclusion
that the defendant was entitled to judgment as a matter of law on those
claims. We agree that the property transferred did not qualify as an ‘‘asset’’
that could be transferred fraudulently in light of the fact that it was encum-
bered by a valid lien that exceeded its value. Accordingly, we need not
address the plaintiff’s challenges to the court’s additional grounds for con-
cluding that the transfer was not fraudulent.
3
The plaintiff argues that the trial court erroneously determined that by
releasing his $150,000 lien in exchange for $59,806.13, he consented to the
alleged fraudulent transfer. The plaintiff contends that he did not consent,
and that he retained a right to prevent the sale of the SHF entities’ assets
under a security agreement related to the $300,000 note. We need not address
this argument, as it is not material to the grounds on which we base our
resolution of the plaintiff’s claims on appeal.
4
The plaintiff also argues that the definition of ‘‘asset’’ under UFTA does
not apply to his common-law fraudulent transfer claim. The plaintiff fails,
however, to provide any analysis or cite to any legal authority for this
argument, and his argument is belied by this court’s decision in National
Loan Investors, L.P. v. World Properties, LLC, supra, 79 Conn. App. 725,
as discussed herein. Indeed, the rationale for this principle—that any prop-
erty of the debtor that is encumbered would not generally be available to
pay the debts of its creditors, as those holding security interests would be
first in line and, thus, are not considered assets—is logically applicable to
common-law claims, as well as to claims under UFTA.
5
The plaintiff also argues that the property was not encumbered at the
time of the transfer because Wells Fargo released its lien ‘‘prior to the
consummation of the subject transaction.’’ The plaintiff ignores the facts that
the release of the Wells Fargo lien was required in order for the transaction
to take place, and the lien would not have been released if Wells Fargo had
not been satisfied by the proceeds from the transaction at issue.
6
The defendant argues that the plaintiff improperly attached exhibits to
his motion to reargue that he did not submit in his opposition to summary
judgment, and because those documents were not submitted in his opposi-
tion, they were not properly before the court in deciding the plaintiff’s
motion to reargue. Because we conclude that the plaintiff’s motion to reargue
constituted an improper attempt to rehash his arguments in opposition to
summary judgment, we need not address the propriety of the plaintiff’s
submission of new exhibits with his motion to reargue.