BARBARA LEVINE v. 418 MEADOW STREET ASSOCIATES, LLC, ET AL.
AC 36919
Connecticut Appellate Court
March 15, 2016
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BARBARA LEVINE v. 418 MEADOW STREET ASSOCIATES, LLC, ET AL. (AC 36919)
Sheldon, Keller and Flynn, Js.
Argued October 13, 2015—officially released March 15, 2016
(
Michael S. Lynch, for the appellants (plaintiff and counterclaim defendant).
Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., for the appellees (defendants).
Opinion
FLYNN, J. The plaintiff and counterclaim defendant, Barbara Levine, and the counterclaim defendant, Steven Levine, appeal from the judgment of the trial court,1 in favor of the defendants and counterclaim plaintiffs, 418 Meadow Street Associates, LLC (Meadow), Michael Weinshel, and Mark Wynnick.2 Barbara and Steven Levine claim that the court erred by denying their motions to set aside, and for remittitur of, the jury verdict. We conclude that despite any perceived imperfections in the appeal form, we have jurisdiction to adjudicate this appeal, and on the basis of the limited record before us, that the appellants have not shown that the court abused its discretion in denying their motions. Therefore, we affirm the judgment of the trial court.
The record reveals the following procedural history and facts which the jury reasonably could have found. The underlying action arose out of the ownership of a commercial building located at 418 Meadow Street in Fairfield (property). Barbara Levine and her husband, Steven Levine, formed the limited liability company, Meadow, in November, 1998, for the purpose of acquiring and operating the property, which included an income-producing building. Barbara and Steven Levine were each 50 percent members of Meadow at the time of its formation; Meadow’s only asset was the property. On or about June 1, 2005, Weinshel and Wynnick collectively purchased Steven Levine’s 50 percent interest in Meadow, thereby becoming members with Barbara Levine. Weinshel purchased 33.33 percent of Meadow at a cost of $222,400.46, and Wynnick purchased 16.66 percent at a cost of $41,666.67.
Prior to and subsequent to the time Weinshel and
Wynnick became members of Meadow, it had tenants
which were associated with Steven Levine.3 After
The members agreed to a Restated Operating Agreement for Meadow designating Weinshel and Steven Levine as comanagers. The agreement required the members’ approval of all leases. The relationship between the Levines and Weinshel and Wynnick deteriorated during and after 2005, due to disagreements regarding management and operations of the building. Steven Levine signed a lease as comanager of Meadow with One Solution Services, LLC (One Solution), effective July 1, 2006. However, he represented to Weinshel and Wynnick that there was not a current lease between Meadow and One Solution, but rather that negotiations were continuing regarding a new lease. Meanwhile, although Meadow was attempting to collect unpaid rent from One Solution as a holdover tenant, Steven Levine
directed One Solution’s bookkeeper to ignore requests from Weinshel and Wynnick for payment of rent to Meadow.
Meadow subsequently brought actions against the aforementioned tenants to obtain rents owed, which Barbara Levine opposed. Meadow brought two separate actions against One Solution for nonpayment of rents and received judgments of $41,000 and $60,000 against One Solution, which remained unsatisfied. Evidence introduced during trial demonstrated that One Solution owed Meadow $82,451.48. Meadow also brought an action against Steven Levine for wrongful withholding of security deposits, and received a judgment of $20,762.83 plus costs of $139.40. Barbara Levine also executed affidavits for the purpose of assisting One Solution and Steven Levine to open judgments entered against them in favor of Meadow. Additionally, Meadow brought an action against Clean Air Group, Inc. (Clean Air) for payment of rent, but at the time of trial in the present action there was no judgment entered in the case. Evidence introduced during this trial demonstrated that Clean Air owed Meadow $100,048.57. Meadow also brought an action against Eco Ion Technologies, LLC, resulting in a settlement agreement under which Meadow was to receive $50,000. However, Meadow received only $30,000 and placed a garnishment on Clean Air to secure the remaining $20,000, but Clean Air did not pay Meadow any money related to the garnishment.
The property was initially valued between $3.4 million and $3.55 million, and was subject to a mortgage of approximately $2.5 million held by People’s Bank. Meadow subsequently defaulted on the mortgage for the property, and, ultimately in May, 2008, Meadow’s interest in the property was extinguished when the bank obtained a foreclosure judgment against Meadow and a sale was ordered. An appraisal performed on May 28, 2009, valued the property at $2 million at the time the final foreclosure judgment was entered. In December, 2009, the property sold at a foreclosure sale for $1,550,000.
The action that generated the counterclaims at issue
in this appeal was commenced in September, 2007,
when Barbara Levine brought suit seeking dissolution
of Meadow and claimed money damages, alleging that
Weinshel and Wynnick breached fiduciary duties owed
General Statutes § 42-110a et seq. Barbara Levine filed a second amended complaint against the defendants on September 24, 2012, in which she sought dissolution of Meadow and a winding up of the affairs of the company. Barbara also alleged that Weinshel and Wynnick breached the covenant of good faith and fair dealing and their fiduciary duties owed to her under the operating agreement.4
Following trial, the jury returned its verdict and found against Barbara Levine on her breach of fiduciary duty claims as well as her breach of the covenant of good faith and fair dealing claims. The jury further found for Weinshel and Wynnick on their counterclaims that Barbara and Steven Levine breached fiduciary duties as well as statutory duties owed to them under § 34- 141, but rejected their CUPTA counterclaim against the Levines. The jury awarded damages to Weinshel and Wynnick in the amounts of $222,400 and $41,667, respectively, on their breach of fiduciary duty and statutory duty claims.
Barbara and Steven Levine subsequently filed a motion to set aside the verdict and a motion for remittitur of the verdict, to which the defendants filed objections. The court, Tyma, J., denied both motions without issuing written memoranda of decision. This appeal followed.
I
As a preliminary matter, the defendants argue that we should decline to review Barbara and Steven Levine’s appeal because they have not properly invoked this court’s jurisdiction. The defendants assert that this court lacks jurisdiction because Barbara and Steven Levine did not file an appeal form indicating that they sought review of the court’s decisions denying their motions to set aside the verdict and for remittitur of the verdict. We disagree and conclude that this court has jurisdiction to review this appeal.
Because the subject matter jurisdiction of this court is challenged, we commence our review by addressing that claim. ‘‘Whenever a claim of lack of jurisdiction is brought to the court’s attention, it must be resolved before the court can proceed.’’ Gallant v. Cavallaro, 50 Conn. App. 132, 134, 717 A.2d 283, cert. denied, 247 Conn. 936, 722 A.2d 1216 (1998), cert. denied, 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d. 386 (1999). ‘‘It is axiomatic that unless the jurisdiction of this court is properly invoked, we cannot exercise our appellate jurisdiction.’’ Rocque v. DeMilo & Co., 85 Conn. App. 512, 527, 857 A.2d 976 (2004). ‘‘[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Internal quotation marks omitted.) Pritchard v. Pritchard, 281 Conn. 262, 275, 914 A.2d 1025 (2007).
is but a statutory privilege available to one who strictly complies with the statutes and rules on which the privilege is granted.’’ Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965). However, our Supreme Court stated in Pritchard v. Pritchard, supra, 281 Conn. 275, that ‘‘the forms for appeals and amended appeals do not in any way implicate appellate subject matter jurisdiction. They are merely the formal, technical vehicles by which parties seek to invoke that jurisdiction. Compliance with them need not be perfect; it is the substance that matters, not the form.’’ Cf. Rocque v. DeMilo & Co., supra, 85 Conn. App. 527 (claim not listed on appeal form but raised initially in appellate brief distinguished from technical defect and considered ‘‘a defect of substantive dimension that implicates this court’s jurisdiction to entertain the claim’’).
The appeal form, JD-SC-28, indicates that the appeal is taken from the ‘‘motion to dismiss granted in favor of defendants (see jury verdict (#174), memorandum of decision (#196); and judgment of dismissal (#197).’’ Although the appeal form does not indicate that Barbara and Steven Levine have appealed from the court’s decisions denying the motions to set aside the verdict or for remittitur, their intention to appeal from those decisions was made clear in the preliminary statement of issues filed with this court. That preliminary statement of issues included, in relevant part: ‘‘Did the trial court err in failing to set aside the jury verdict where the damages awarded to the counterclaim plaintiffs Michael Weinshel and Mark Wynnick were not supported by the evidence at trial, and were not in conformance with Connecticut law of damages.’’
‘‘In accordance with [its] policy not to exalt form over substance, [our Supreme Court has] been reluctant to dismiss appeals for technical deficiencies in an appellant’s appeal form. See State v. Findlay, 198 Conn. 328, 329 n.2, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986) (disregarding error on appeal form mistakenly indicating that appeal was being taken from jury verdict rather than judgment, concluding that defect in form is not jurisdictional in nature); see also Brown v. Rosen, 36 Conn. App. 206, 210, 650 A.2d 568 (1994) (disregarding appellant’s failure to indicate on appeal form that appeal was being taken from final judgment).’’ Rocque v. DeMilo & Co., supra, 85 Conn. App. 527. Barbara and Steven Levine referenced the jury verdict itself on the appeal form, which can be interpreted as an intention to appeal from the judgment. See State v. Kurvin, 186 Conn. 555, 556 n.1, 442 A.2d 1327 (1982) (‘‘[a]lthough the defendant purported to appeal from the verdict rather than the judgment as required by General Statutes § 52-263, this defect in form not being jurisdictional in nature . . . may be disregarded’’ [citation omitted]).
In Pritchard v. Pritchard, supra, 281 Conn. 275–76,
our Supreme Court held that although the wrong judgment date was listed on the appeal form, it was clear
from the attached amended preliminary statement of
issues that the appeal was intended to be taken from
the correct judgment date. The court distinguished
Rocque v. DeMilo & Co., supra, 85 Conn. App. 527,
noting that in Rocque, the ‘‘claim was not raised in
the defendants’ preliminary statement of issues, but
appear[ed] for the first time in their appellate brief.’’
(Internal quotation marks omitted.) Pritchard v. Pritchard, supra, 275. Here, as in Pritchard, the intent of
Barbara
II
We next turn to the merits of the Levines’ appeal. They claim that the court erred by denying their motions to set aside, and for remittitur of, the jury verdict. We are not persuaded.
We first address the defendants’ argument that the record for reviewing Barbara and Steven Levine’s claims is inadequate. The defendants argue that the trial court’s judgment should be affirmed because the case of Murcia v. Geyer, 151 Conn. App. 227, 230, 93 A.3d 1189, cert. denied, 314 Conn. 917, 100 A.3d 406 (2014), is analogous to the present case. We agree that Murcia is relevant to our inquiry, however, we disagree that the record is so inadequate as to prevent review. Instead, as in Murcia, we review the appellants’ claims on the limited record provided. See id., 231 n.1. Given our duty to make every reasonable presumption in favor of the correctness of the court’s decision; id., 231; our review of the limited record before us leads us to conclude that the court acted reasonably and did not abuse its discretion in denying their motions to set aside, and for remittitur of, the verdict.
In the present case, we do not decline to review Barbara and Steven Levine’s claims, rather we review the claims on the record provided. See id. Nor is our resolution founded solely upon the failure of Barbara and Steven Levine to seek an articulation, but also upon their failure to procure memoranda of decision.5 See id.
Appellate review of motions for remittitur is even more restrictive. Remittitur should be both rare and exceptional. ‘‘[R]eview of the trial court’s grant of remittitur is dictated by, on the one hand, the high bar that must be met before a trial judge may set aside a jury verdict, and, on the other hand, the necessarily broad authority that the trial judge has to oversee the trial process. The right of trial by jury is of ancient origin, characterized by Blackstone as the glory of the English law and the most transcendent privilege which any subject can enjoy . . . . [Our Supreme Court has] repeatedly . . . stated that the award of damages, in particular, is a matter peculiarly within the province of the trier of facts. . . . For that reason, [our Supreme Court has] consistently . . . held that a court should exercise its authority to order a remittitur rarely—only in the most exceptional of circumstances.’’ (Citations omitted; internal quotation marks omitted.) Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 280.
When considering a motion to set aside a verdict, Malmberg teaches us that the evidence before the jury is vital. See Malmberg v. Lopez, supra, 208 Conn. 679–80. There was abundant evidence from which the jury could have concluded that Barbara and Steven Levine engaged in a long pattern of self-dealing and obstructive conduct that frustrated the purpose of successfully operating Meadow, whose sole purpose was the ownership of the single commercial building. There was also evidence from which a jury might have concluded that
the defendants, Weinshel and Wynnick, lost investments of $222,400.46 and $41,666.67, respectively, which were irretrievable when the property that was Meadow’s sole asset was foreclosed by People’s Bank.
In Murcia, this court stated that ‘‘pursuant to Practice
Book § 64-1 (a), the court
This court, in Murcia, concluded that although ‘‘the record . . . include[d] the trial transcript, [it could not] readily identify any portion of it that encompasse[d] the court’s factual findings with respect to the defendants’ claim . . . .’’ Murcia v. Geyer, supra, 151 Conn. App. 230. In any review of a motion to set aside the verdict and/or a motion for remittitur, given the deference our standard of review requires to the trial court’s decision, it is especially important to know what evidence before the jury justified the verdict in the court’s mind. Similar to Murcia, in the present case, although we have the trial transcript, there is no indication of the specific facts which the court found reasonably supported the denial of Barbara and Steven Levine’s motions to set aside, and for remittitur of, the verdict.7 See id.
erty became less valuable, not enough rent was collected to satisfy mortgage payments, and the property was subsequently foreclosed because of the self-dealing and obstructive behavior of Barbara and Steven Levine. The jury also could have concluded that the defendants, Weinshel and Wynnick, lost the entire amount of their investments in Meadow when the property was foreclosed. Therefore, it would have been reasonable for the jury to conclude that absent the self-dealing and obstructive behavior of Barbara and Steven Levine, Meadow’s property might not have been foreclosed, and the defendants, Weinshel and Wynnick, would not have lost their investments in Meadow.
We are ‘‘[c]ognizant that we must make every reasonable presumption in favor of the correctness of the court’s decision . . . .’’ Id., 230–31. Therefore, on the basis of our review of the limited record provided to us, we conclude that the Levines have not shown that the court acted unreasonably or abused its discretion in denying their motions to set aside, and for remittitur of, the verdict thereby rendering judgment in favor of the defendants on their counterclaims, in accordance with the jury verdict. See id., 231.
The judgment is affirmed.
In this opinion the other judges concurred.
for appellate review. Practice Book § [60-5] . . . . It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative. . . . Where the transcript does not reveal the basis of the court’s factual conclusion, we will not review the appellant’s claims. . . .
‘‘In the present case, we do not decline to review the defendants’ claim, rather we review the claim on the record provided. Nor is our resolution founded solely upon the defendants’ failure to seek an articulation, but upon their failure to procure a memorandum of decision.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) Murcia v. Geyer, supra, 151 Conn. App. 231 n.1.
Barbara and Steven Levine supplied records of the trial in the Superior Court for the following dates: September 19, 2012; September 20, 2012; September 25, 2012; September 27, 2012; September 28, 2012; and October 2, 2012. All of these dates preceded the dates of the motions to set aside, and for remittitur of, the verdict, which were both dated October 12, 2012. We were provided no transcripts for proceedings in the Superior Court before Judge Tyma after October 12, 2012, that would shed light on his reasoning for refusing to set aside the verdict and denying any remittitur of its amount.