FRANK BONGIORNO v. JOSEPH CAPONE
(AC 40205)
Appellate Court of Connecticut
Argued May 22-officially released October 2, 2018
Sheldon, Elgo and Flynn, Js.
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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 defendant‘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:
- 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 benefit; 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.
- 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.
- 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.
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 recommending 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; subsequently, the court remanded the matter to the attorney trial referee, who filed a second revised report recommending 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
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 diminishing 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 personally 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 merits 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 damages 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 diminution 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
The following facts and procedural history are relevant 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 “binding 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 September 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 September 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 settlement 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
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),
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 complaint 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 referee, 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 defendant, a Sprint phone bill, a Sprint account history, and a spreadsheet of financial distributions from the company 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 testified that the document dated August 28, 2012, was a binding term sheet that memorialized generally his agreement with the defendant, and that another document, 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
The defendant withdrew $17,000 from the company‘s account on August 29, 2012. The plaintiff never authorized 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 defendant‘s ownership in the company had ended on August 28, 2012. He contended, on that basis, that the defendant‘s August 29, 2012 withdrawal constituted theft.
According to the plaintiff, he and the defendant had adopted a standard business practice for making withdrawals from the company checking account. In accordance with that practice, he and the defendant would compensate themselves from the income of the company, as deposited in the account, by taking weekly disbursements of $1000, “if the checkbook ... allow[ed] it,” but they would not take such disbursements 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 support other property they jointly owned; the plaintiff characterized such withdrawals as capital contributions. Payments from the company account always were made equally to the plaintiff and the defendant, with the exception of reimbursements for minor business purchases that they made. At the end of the year, based upon their accountant‘s determination, the plaintiff and the defendant would issue a check from the company account to the defendant in an amount representing 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
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 company‘s checking account on August 29, 2012. The defendant 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 settlement 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 disbursements 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 contained 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
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 consecutively numbered paragraphs the ultimate facts found and the conclusions drawn therefrom; the conclusions 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 defendant to support his individual claims for damages. The defendant also filed a motion to dismiss the operative complaint for lack of subject matter jurisdiction, claiming 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 plaintiff, 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 February 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 plaintiff 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 defendant had withdrawn the $17,000, and thus, when the transaction by which the plaintiff purchased the defendant‘s interest in the company was completed, the plaintiff 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
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 prejudgment statutory interest. After counsel conferred with one another on the issue, they reported that the defendant 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 preemptive 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 objection 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,
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 standing 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‘Ayergi & Associates, LLC v. Pro Search, Inc., 115 Conn. App. 662, 667, 974 A.2d 724 (2009). “The issue of standing implicates a court‘s subject matter jurisdiction and is subject to plenary review. ... Standing is established 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 distinguished 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 [challenged 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 allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests.” (Internal quotation 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 discretion to consider the merits of a case over which it is without jurisdiction ... The subject matter jurisdiction 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 judicial resolution of the dispute. ... One cannot rightfully 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 defendant 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
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 damages.” (Internal quotation marks omitted.) CCT Communications, 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 damages 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 withdrawal 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 membership 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
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 withdrawal as compensatory damages for the company‘s lost value, plus prejudgment statutory
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 transferred 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
“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
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] corporation 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 quotation 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 company], 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 demonstrate 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 company. 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 defendant‘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 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 provisions in the contractual documents. The defendant contends 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 beginning 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 provisions 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 accordance 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 documents. 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 modified amount of $8500, plus prejudgment statutory interest on that sum from the time
In this opinion the other judges concurred.
SHELDON, J.
JUDGE OF THE APPELLATE COURT