Opinion
The defendant, Harry Terdjanian, appeals from the trial court’s judgment rendered in favor of the substitute plaintiff, Rana Automaster, LLC,
The following facts and procedural history are relevant to our review. In 2001, the defendant, through a limited liability company, owned two auto repair businesses, each operating under the name Automaster Service Center. One business was located in Wethersfield; the other was located in Southington. American Express Company (American Express) authorized the defendant’s businesses to accept American Express credit card payments and assigned each business its own unique “establishment number.”
In July, 2001, the plaintiff purchased the Wethersfield business from the defendant. After the sale, the defendant neglected to advise American Express of the sale and to cancel the establishment number assigned to the Wethersfield business. The plaintiff meanwhile obtained its own authorization from American Express to accept American Express credit card payments, and American Express issued the plaintiff a new establishment number for the Wethersfield business. Because the defendant never cancelled the old establishment number associated with the Wethersfield business, the plaintiff continued to receive statements associated with the old establishment number from American Express. Nevertheless, because the company that processed payments from American Express to the plaintiff had the plaintiffs correct establishment number and associated bank account number, no issues initially arose as a result of the failure to cancel the old establishment number.
The plaintiff, however, changed credit card processing companies in August, 2006. Anees U. Rana, who operated the Wethersfield business for the plaintiff, completed the application required by the new processing company. In so doing, Rana mistakenly referred to one of the statements containing the defendant’s old establishment number and listed that old
Rana contacted the defendant seeking repayment of $5133.96 in additional deposits that the processing company erroneously had paid into the defendant’s bank account. Rana provided the defendant with documentation for the erroneous deposits, including statements from American Express, and met with the defendant on several occasions to resolve the matter and to secure repayment of the misdirected funds. The defendant, however, would not agree to reimburse the plaintiff.
In March, 2008, Rana commenced this action against the defendant in small claims court as a self-represented party. In July, 2008, the defendant had the matter transferred to the regular docket of the Superior Court pursuant to Practice Book § 24-21. Rana obtained counsel, who filed a four count complaint alleging conversion, statutory theft, unjust enrichment and a CUTPA violation.
The case was tried to the court over the course of three days between October 6 and November 9, 2010. On the second day of trial, during cross-examination of Rana by the defendant, it was brought to light that the operative complaint incorrectly alleged that Rana had obtained the Wethersfield business from the defendant in 2006, when, in fact, the business had been obtained in 2001 by the plaintiff, not by Rana. Rana further testified that his wife, Farhana Y. Syed, was the plaintiffs sole member, and that he operated the business and was the plaintiffs agent for service. After the close of Rana’s case-in-chief, the court, citing General Statutes §§ 34-134
On October 22,2010, rather than briefing the standing issue, Rana’s counsel filed a motion pursuant to General Statutes § 52-109 and Practice Book § 9-20 seeking to substitute the plaintiff and Syed for Rana as the real parties in interest and for leave to amend the complaint. A proposed fourth amended complaint was submitted along with the motion. According to the motion, Rana was in charge of the plaintiff’s finances, he was the agent for service, and he ran “all managerial aspects of the business.” The motion further provided that Rana had a good faith belief that he was a part owner of the business and, thus, was personally entitled to seek repayment from the defendant. Rana’s counsel indicated that he also had had a good faith belief that Rana was the proper plaintiff based on Rana’s representations to him and the fact that Rana’s name appeared on credit card and bank documents. Finally, Rana’s counsel provided that the proposed substitution was necessary “for the determination of the real matter in dispute” because it now was apparent that the plaintiff was owed the monies erroneously transferred into the defendant’s account.
On October 28, 2010, the defendant filed an objection to the motion to substitute. He also filed a motion to dismiss pursuant to Practice Book § 10-30 et seq., claiming that the court lacked subject matter jurisdiction and a motion to dismiss pursuant to Practice Book § 15-8 claiming that Rana had failed to make out a prima facie case because he had “no individual right of action.”
The trial resumed on November 9, 2010, with the defendant’s presentation of evidence. On March 17, 2011, the trial court issued a memorandum of decision finding in favor of the plaintiff on the conversion, statutory theft and CUTPA counts. The court rendered judgment for the defendant on the unjust enrichment count. The court found that the plaintiff had proven damages of $5133.96, and awarded the plaintiff treble damages on the statutory theft count of $15,401.85 plus interest and attorney’s fees to be determined by the court after a hearing on April 4, 2011. On April 5, 2011, the court issued a decision in which it awarded the plaintiff an additional $1174.76 in offer of judgment interest and $10,000 in attorney’s fees. The defendant filed a motion to reargue and for reconsideration. The court reconsidered its decision, but it saw “no reason to depart from its conclusions in that decision.” This appeal followed.
I
The defendant first claims that the court improperly denied his motions to dismiss. According to the defendant, once it was raised by the court and in his motions to dismiss that Rana lacked the requisite legal standing to commence this action, the court lacked the authority to do anything other than to rule on the motions to dismiss, and the court exceeded its authority when it simultaneously considered and granted the motion to substitute the plaintiff as the real party in interest. The plaintiff argues that the court properly substituted it for Rana, thereby negating any standing problem that may have existed and, accordingly, properly denied the motions to dismiss. For the following reasons, we agree with the plaintiff.
The standard of review we apply when determining whether a court properly denied a motion to dismiss for lack of subject matter jurisdiction is well settled. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. . . . When the trial court draws conclusions of law, appellate review is plenary, and the reviewing court must decide whether the trial court’s conclusions are legally and logically correct.” (Citation omitted.) Bloom v. Dept. of Labor,
As noted by the defendant, courts in this state repeatedly have stated that “[t]he issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. ” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall,
In the present case, the court first raised the standing issue
In DiLieto v. County Obstetrics & Gynecology Group, P.C.,
On the basis of the Supreme Court’s discussion in DiLieto of the remedial purpose underlying § 52-109, we conclude that it is well within the authority of a court to permit a substitution of plaintiffs in lieu of dismissing an action provided that the court determines that the conditions set forth in § 52-109 have been met. We also agree with the reasoning of a number of trial court decisions that have considered the same jurisdictional conundrum now before us that “if § 52-109 is to have the ameliorative purpose for which it was intended, then even assuming that the specter of subject matter jurisdiction rears its head, the statute is meant to give the trial courts jurisdiction for the limited purpose of determining if the action should be saved from dismissal by the substitution of plaintiffs.” (Internal quotation marks omitted.) Wilson v. Zemba,
In the present case, the court found in its November 1, 2010 decision that the criteria necessary to permit a substitution pursuant to § 52-109 were satisfied. The court found that Rana had commenced the small claims action in his
II
The defendant next claims that the trial court erred by finding him liable for statutory theft pursuant to § 62-564. Specifically, the defendant argues that there was no evidence presented at trial of a theft in this case or that the defendant had stolen property from the plaintiff or knowingly received or concealed stolen property, and, therefore, the court erred by imposing liability for statutory theft. We disagree.
The following standard of review is applicable in cases in which a party challenges the sufficiency of the evidence. “[W]e must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in fight of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Citations omitted; internal quotation marks omitted.) Briggs v. McWeeny,
Section 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals 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.” (Internal quotation marks omitted.) Blackwell v. Mahmood,
In order to prove liability for statutory theft, therefore, the plaintiff was not required to present evidence that the funds in question had been stolen by the defendant or anyone else; it only had to show that the defendant had engaged in conduct that was synonymous with a larceny. Section 53a-119 (4) provides in relevant part that “[a] person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of larceny if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to it.” Accordingly, the defendant could be found liable for statutory theft if he wrongfully withheld funds that rightfully belonged to the plaintiff with the intent to deprive it of those funds or to appropriate the funds for himself or his business.
Here, the court found that the defendant had possession of funds that rightfully belonged to the plaintiff as compensation for services performed at the plaintiffs Wethersfield business. That finding is supported by the American Express documents entered into evidence and the testimony of an American Express representative, both of which established that monies for services performed at the plaintiffs Wethersfield business that should have been deposited into the plaintiffs account mistakenly had been deposited into the defendant’s business account. The court noted that the defendant’s initial possession of those funds may not have been wrongful and, in fact, partly was due to Rana’s negligence in providing the processing company with the defendant’s former establishment number; nevertheless, it concluded that the defendant wrongfully refused to return the money even after being provided with documentation by Rana that established beyond any doubt that the funds at issue had been deposited in error into the bank account of the defendant’s limited liability company. Rana testified that he had met with the defendant on several different occasions prior to commencing this action and had provided the defendant with documents showing the erroneous deposits and that the defendant had even spoken with an American Express representative about the funds misdirected to his account. The court found that, given the defendant’s knowledge concerning the source and disposition of the funds in question, the defendant’s continued failure to return the funds to the plaintiff constituted an intentional decision on his part to deprive the plaintiff of its use of the funds. Our review of the record reveals that the factual findings of the court, as set forth in the court’s memorandum of decision, are supported by evidence presented at trial and, as a matter of law, are sufficient to support the imposition of liability for statutory theft.
III
The defendant’s third claim on appeal is that the trial court improperly awarded the plaintiff $10,000 in attorney’s fees. In particular, the defendant suggests that the plaintiff had sought attorney’s fees pursuant to only § 52-192a, which limits the
“We review the award of attorney’s fees for a clear abuse of discretion. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. . . . [W]e may not alter an award of attorney’s fees unless the trial court has clearly abused its discretion . . . .” (Internal quotation marks omitted.) Krack v. Action Motors Corp.,
As the defendant correctly sets forth in his brief, “[a]s a substantive matter, [t]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” (Internal quotation marks omitted.) Maris v. McGrath,
In the ad damnum clause of the operative complaint, however, the plaintiff expressly sought an award of attorney’s fees pursuant to both General Statutes §§ 52-251a and 42-1 lOg (d). The court, in its decision awarding attorney’s fees, expressly found that the plaintiff was entitled to reasonable attorney’s fees pursuant to § 52-251a, which provides: “Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney’s fees to be taxed by the court. ” The present action was commenced as a small claims matter and was transferred to the regular docket pursuant to the defendant’s motion.
The court found that, by transferring the case from small claims to the regular docket, the matter was transformed from a relatively straightforward case to a “pitched legal battle,” which is precisely what § 52-251a was intended to deter. Krack v. Action Motors Corp., supra,
IV
The defendant next claims that the court improperly found that the defendant individually was liable to the plaintiff despite the fact that he operated his business through a limited liability company. In support of his claim, the defendant primarily relies on General Statutes §§ 34-133 (a) and 34-134. The defendant maintains that it was the legislature’s intent to eliminate individual liability for members of limited liability companies, except in cases in which the limited liability companies provide professional services. We disagree. Rather, we agree with the court that the defendant was not shielded from liability by his limited liability company.
Whether the defendant personally could be found hable under the facts of this case in the face of §§ 34-133 and 34-134 is an issue of statutory construction over which our review is plenary. See C. R. Klewin Northeast, LLC v. State,
Our Supreme Court has held that the legislature’s enactment of §§ 34-133 and 34-134 “evinces no legislative intent to eliminate the right to impose liability on a member or manager of a limited liability company who has engaged in or participated in the commission of tortious conduct. Rather, the statute merely codifies the well established principle that an officer of a corporation does not incur personal liability for [the corporation’s] torts merely because of his official position.” (Internal quotation marks omitted.) Sturm v. Harb Development, LLC,
In the present case, a review of the operative complaint shows that the plaintiff sought to impose liability on the defendant on the basis of his personal conduct. The court found that this case did not involve “pierc[ing] the corporate veil” because it involved tortious conduct on the part of the individual defendant. Specifically,
We conclude that the court did not violate §§ 34-133 or 34-134. Under the facts of the present case, we cannot conclude that it was reversible error for the court to hold the defendant personally hable when it was wholly within the defendant’s power to return the misdirected funds to the plaintiff and he wrongfully chose not to do so.
V
The defendant next claims that the court erroneously found that the defendant committed conversion because he never made an “absolute and unqualified refusal” to return the plaintiffs funds, and all he ever wanted was for American Express to supply him with written confirmation “to clear the smoke and confusion that engulfed him even through the trial, all of which was created by the plaintiff and not him.”
When a defendant is claiming that the record does not contain sufficient evidence to support a finding of conversion, “[t]he applicable standard of review is whether the court’s conclusion that the evidence supported the finding of conversion was clearly erroneous.” Aubin v. Miller,
The evidence that supported the court’s conclusion that the defendant was hable for statutory theft, discussed earlier in this opinion, also supports the court’s finding of conversion. Although the court found that the defendant’s initial possession of the funds at issue was not wrongful, it also found that the defendant’s continued possession after Rana provided him with documentation establishing that the funds had been deposited into his business’ bank account in error was wrongful and amounted to an unauthorized possession of those funds. The defendant claims that to be found hable for conversion he needed to make an “absolute and unqualified refusal” to return the plaintiffs funds. It is undisputed that “[w]here goods originally in the rightful possession of a person are wrongfully retained by him without the exercise of dominion over them, a demand and its refusal afford the necessary evidence of a conversion.” Molski v. Bendza,
VI
Finally, the defendant claims that the court improperly found that there was a CUTPA violation. In addition to restating his argument that he is immune from liability by virtue of his limited liability company, which we already have rejected, the defendant asserts that he “was completely passive and engaged in no action that may be deemed to be immoral, unethical, oppressive or unscrupulous . . . .” We disagree with that assertion.
“It is well settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Chamlink Corp. v. Merritt Extruder Corp.,
“[General Statutes §] 42-110b (a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. ... All three criteria do not need to be satisfied to support a finding of unfairness.” (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc.,
The court found that the plaintiff had proven a CUTPA violation because “[t]he defendant’s theft of the plaintiffs funds violates the statutes proscribing conversion and theft and, by any standard, qualifies as ‘immoral, unethical, oppressive [and] unscrupulous.’ ” Having already concluded that the court properly determined that the defendant was liable for statutory theft and conversion, we cannot conclude that the court erroneously relied on the same as the basis for its finding that the defendant had committed an unfair or deceptive act as proscribed under CUTPA.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
As discussed later in the opinion, although this action originally was commenced by the named plaintiff, Anees U. Rana, the trial court later granted a motion to substitute Rana Automaster, LLC, as the real plaintiff in interest in accordance with General Statutes § 52-109. Accordingly, we refer to Rana Automaster, LLC, as the plaintiff throughout this opinion.
According to the record, an establishment number is the account number that American Express assigns in order to identify each merchant and to aid in the processing of payments to the merchant.
The defendant filed a counterclaim alleging invasion of privacy and a CUTPA violation. The court, following the defendant’s presentation of evidence in support of his counterclaim, rendered judgment on the counterclaim in favor of the plaintiff. The defendant does not challenge the court’s judgment on the counterclaim as part of this appeal.
General Statutes § 34-134 provides: “A member 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 member’s or manager’s right against or liability to the limited liability company or as otherwise provided in an operating agreement.”
General Statutes § 34-187 (a) provides: “Except as otherwise provided in an operating agreement, suit on behalf of the limited liability company may be brought in the name of the limited liability company by: (1) Any member or members of a limited liability company, whether or not the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in interest of the members, unless the vote of all members shall be required pursuant to subsection (b) of section 34-142; or (2) any manager or managers of a limited liability company, if the articles of organization vest management of the limited liability company in one or more managers, who are authorized to sue by the vote required pursuant to section 34-142.”
The defendant raised the issue of Rana’s standing as a special defense, but he never filed a motion to dismiss on that basis prior to the court’s raising the issue at trial.
The underlying premise for both of the defendant’s motions to dismiss was that Rana was not the proper party to commence the action before the trial court. According to the defendant, Rana’s lack of standing prevented the trial court from acquiring subject matter jurisdiction and also meant that Rana could not have established a prima facie case as to the causes of actions alleged. On appeal, the defendant briefed the court’s denial of his motions to dismiss as a single claim, focusing on Rana’s lack of standing. The defendant does not address the evidence presented or any aspect of a failure to make out a prima facie case in accordance with Practice Book § 15-8. Accordingly, in reviewing the court’s denial of the defendant’s motions to dismiss, we limit our review to the issue of standing.
It was not until after Rana’s motion to substitute was filed that the defendant filed his motions to dismiss.
In addressing this claim, the defendant also raises his belief that the court erred in determining that he had committed conversion because the plaintiff had unclean hands. The defendant, however, does nothing more than state that claim. To obtain appellate review, claims require adequate briefing, and “[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Dichello v. Holgrath Corp.,