Channing Real Estate, LLC v. Gates , 326 Conn. 123 ( 2017 )

 CHANNING REAL ESTATE, LLC v. BRIAN GATES
(SC 19575)
Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
Syllabus
The plaintiff limited liability company appealed to this court from the judg-
ment of the Appellate Court, which reversed the judgment of the trial
court and ordered a new trial. The defendant was a co-owner and
member of F Co., a limited liability company that owned commercial
real estate. On six different occasions, the defendant executed a promis-
sory note in exchange for funds that the plaintiff provided to him.
Each of the six notes included an identical clause that precluded oral
modification of the note. After the defendant failed to make any pay-
ments on the notes, the plaintiff brought a breach of contract action.
The defendant alleged four special defenses and filed a three count
counterclaim. The plaintiff filed a motion in limine to preclude any
extrinsic evidence that varied the terms of the notes, including the
evidence the defendant sought to introduce to support his claim that
the funds that the plaintiff had provided to him were interim payments
made in exchange for an interest in commercial real estate owned by
F Co. The trial court denied the plaintiff’s motion, concluding that the
parol evidence rule did not bar the introduction of extrinsic evidence
to vary the terms of the notes because the notes were not integrated
as a result of the parties’ failure to reduce to writing their full agreement,
including the proposed real estate transaction. The trial court rendered
judgment for the defendant on, inter alia, the complaint and on the third
count of the counterclaim alleging a violation of the Connecticut Unfair
Trade Practices Act (§ 42-110a et seq.). On appeal to the Appellate
Court, the plaintiff claimed, inter alia, that the trial court improperly
had admitted parol evidence to vary the terms of the notes. The Appellate
Court concluded that the notes were integrated and that their terms
were unambiguous, and, therefore, that the parol evidence rule barred
the introduction of extrinsic evidence. The court remanded the case for
a new trial on the basis of its conclusion that the introduction of parol
evidence was an error that permeated the trial court’s findings and
undermined its entire judgment, and stated that, on remand, the defen-
dant was entitled to allege and prove any exceptions he may have to
the parol evidence rule as a special defense or counterclaim, including
a violation of CUTPA. On the granting of certification, the plaintiff
appealed to this court. Held:
1. This court concluded that, although the Appellate Court properly deter-
mined that the parol evidence rule barred the introduction of extrinsic
evidence to vary the terms of the notes, that court improperly remanded
the case for a new trial rather than directing judgment for the plaintiff
on the issue of liability and ordering a hearing in damages: each note
having contained language that barred the introduction of extrinsic
evidence under the applicable parol evidence rule, and the defendant
having failed to present any valid defenses or counterclaims that served
as exceptions to the parol evidence rule, the trial court’s findings per-
taining to the extrinsic evidence were irrelevant, and the trial court’s
remaining findings regarding the terms of the notes and the defendant’s
failure to pay any of the amounts due thereunder were sufficient to
establish the defendant’s liability as a matter of law, rendering a new
trial on remand unnecessary; furthermore, this court declined to address
the defendant’s unpreserved claim that, notwithstanding the application
of the parol evidence rule, certain actions of the plaintiff effected a
postcontractual modification of the notes, providing him with a valid
and meritorious special defense in equitable estoppel that entitled him
to a new trial on remand, the defendant having failed to raise this distinct
claim in the trial court.
2. A new trial on the count of the defendant’s counterclaim alleging a
violation of CUTPA was unwarranted because it was F Co. rather than
the defendant who would have had standing to assert a CUTPA claim
against the plaintiff; F Co. was a limited liability company and thus a
distinct legal entity from the defendant, the injuries the defendant alleged
in the CUTPA count of his counterclaim were those allegedly suffered
by F Co., specifically, and not the defendant, and, because a member
of a limited liability company, such as the defendant, cannot recover
for an injury allegedly suffered by the company itself, the defendant
lacked standing to pursue his CUTPA claim.
Argued November 16, 2016—officially released July 4, 2017
Procedural History
Action to recover on six promissory notes, and for
other relief, brought to the Superior Court in the judicial
district of Windham, where the defendant filed a coun-
terclaim; thereafter, the court, A. Santos, J., denied the
plaintiff’s motion to preclude certain evidence; subse-
quently, the case was tried to the court, A. Santos, J.;
judgment for the defendant on the complaint and in
part on the counterclaim, from which the plaintiff
appealed to the Appellate Court, Sheldon, Keller and
Bear, Js., which reversed the trial court’s judgment and
remanded the case for a new trial, and the plaintiff, on
the granting of certification, appealed to this court.
Affirmed in part; reversed in part; judgment directed;
further proceedings.
Linda L. Morkan, with whom was Stuart D. Rosen,
for the appellant (plaintiff).
Frank J. Liberty, for the appellee (defendant).
Opinion
ESPINOSA, J. The plaintiff, Channing Real Estate,
LLC, appeals from the judgment of the Appellate Court,
which reversed the judgment of the trial court in favor
of the defendant, Brian Gates, on both the plaintiff’s
complaint seeking recovery on six promissory notes
(notes) and on the defendant’s counterclaim alleging a
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. Channing
Real Estate, LLC v. Gates, 159 Conn. App. 59, 83, 122
A.3d 677 (2015). The plaintiff, which prevailed in the
Appellate Court, challenges only the scope of the court’s
remand order, claiming that it improperly ordered a
new trial rather than restricting the proceedings on
remand to a hearing in damages. The plaintiff contends
that a new trial is unnecessary because the Appellate
Court’s proper application of the parol evidence rule
resolved the issue of liability on the notes in favor of
the plaintiff as a matter of law and because the defen-
dant lacks standing to raise a CUTPA claim.1 The defen-
dant argues that the Appellate Court correctly
concluded that a new trial is necessary to allow him to
pursue valid special defenses and counterclaims. We
conclude that a new trial is unnecessary, and, accord-
ingly, reverse in part the judgment of the Appellate
Court.
The trial court found the following relevant facts.
The plaintiff is a limited liability company organized
under New York law, with Douglas Chan as principal.
The defendant was a co-owner and member of Front
Street Commons, LLC (Front Street Commons), a lim-
ited liability company organized under Connecticut law
that owned commercial real estate in Putnam.
On six different occasions between January, 2008,
and February, 2009, the defendant executed a promis-
sory note in exchange for funds that the plaintiff pro-
vided to him. The total principal amount of the six notes
was $281,272.74. The defendant has made no payments
on any of the notes.
With the exception of the principal amounts and
maturity dates, the terms of each of the six notes were
identical. In each note, the defendant promised to pay
the corresponding principal amount to the defendant
with annual interest at the rate of 14 percent. If the
notes were not paid by the maturity dates, their terms
called for the payment of interest either at 16 percent
annually or the highest rate permitted under New York
law, whichever was higher. Each note set forth the
address to which the defendant was to send his pay-
ments and in what form those payments were to be
made. The terms of each note also stated that the defen-
dant promised to pay all reasonable collection costs,
including attorney’s fees. Finally, each note included
the following clause precluding oral modification of the
contract: ‘‘This [n]ote may not be changed, modified or
discharged, nor any provision waived, orally, but only
in writing, signed by the party against whom enforce-
ment of any such change, modification, discharge or
waiver is sought.’’
On December 15, 2009, the plaintiff demanded pay-
ment of all six notes and, after the defendant failed to
make any payments, brought this action for breach of
contract, seeking to collect principal, interest, costs,
and fees as provided in the notes. The defendant alleged
four special defenses and filed a three count counter-
claim, all of which related to the parties’ failed negotia-
tions pertaining to a proposed real estate transaction
through which the plaintiff would have acquired an
interest in the commercial real estate owned by Front
Street Commons. The defendant asserted special
defenses of fraud in the inducement, unjust enrichment,
innocent or negligent misrepresentation, and promis-
sory estoppel. The defendant’s counterclaim alleged
fraud, negligent misrepresentation, and a violation of
CUTPA, and sought, inter alia, damages for lost rents
in connection with the failed real estate transaction.
The plaintiff filed a pretrial motion in limine claiming
that the parol evidence rule barred the trial court from
considering any extrinsic evidence that varied the terms
of the notes because the notes are written, integrated,
and the terms stated therein are unambiguous. The
extrinsic evidence the plaintiff sought to exclude
related to the defendant’s claim that the notes were not
promises to repay loans but were issued in connection
with the proposed real estate transaction between the
parties. Specifically, the defendant claimed that, rather
than loans, the funds that the plaintiff had paid to him
were interim payments made in exchange for an interest
in the commercial real estate owned by Front Street
Commons. The sole purpose of the notes, according to
the defendant, was to protect the plaintiff’s investment
in the event that the defendant backed out of the pro-
posed transaction or the commercial property was
destroyed.
The trial court denied the plaintiff’s motion in limine,
concluding that the parol evidence rule did not bar the
introduction of extrinsic evidence to vary the terms of
the notes. The trial court determined that the parol
evidence rule did not apply because it found that the
notes were not integrated as a result of the parties’
failure to reduce to writing what the court deemed
to constitute their full agreement—the proposed real
estate transaction. Relying on the extrinsic evidence
presented by the defendant, the trial court ruled in his
favor on the plaintiff’s complaint, and on the third and
fourth special defenses alleging negligent misrepresen-
tation and estoppel, as well as the third count of the
counterclaim alleging a violation of CUTPA. Lastly, the
trial court found for the plaintiff on the defendant’s
first and second special defenses alleging fraud in the
inducement and unjust enrichment, and on the first
count of the defendant’s counterclaim alleging fraud
in the inducement. Although in its memorandum of
decision the trial court ruled in favor of the defendant’s
counterclaim for negligent misrepresentation, it did not
award any damages in connection with that claim.2 The
trial court awarded the defendant $25,575 in attorney’s
fees on the CUTPA claim.3 See General Statutes § 42-
110g (d).
The plaintiff appealed to the Appellate Court claim-
ing, inter alia, that the trial court improperly admitted
parol evidence to vary the unambiguous terms of the
notes, each of which was a fully integrated agreement.
The Appellate Court examined the notes and agreed
that they were integrated and that their terms were
unambiguous. The court therefore reversed the judg-
ment of the trial court, concluding that the parol evi-
dence rule barred the introduction of extrinsic evidence
to vary the terms of the notes. Channing Real Estate,
LLC v. Gates, supra, 159 Conn. App. 81–83. Unlike the
trial court—which examined the notes and the parol
evidence rule under Connecticut law—the Appellate
Court applied New York law, but observed that ‘‘there
are no material differences between New York and Con-
necticut law as applied to the facts of the present case.’’
Id., 73.
The Appellate Court remanded the case for a new
trial on the basis of its conclusion that the introduction
of parol evidence to vary the terms of the notes was
‘‘an error that permeate[d] the [trial] court’s findings
and undermine[d] its entire judgment.’’ Id., 83. The court
stated that, ‘‘[o]n remand, the plaintiff is . . . entitled
to the opportunity to prove its damages with respect
to each of the notes, the existence and written terms
of which the defendant does not dispute. The defendant
is entitled on remand to allege and prove any of the
defenses [he] may have to each of the notes in accor-
dance with the recognized exceptions under New York
law to the parol evidence rule. . . . The only excep-
tions to the parol evidence rule that the defendant has
pleaded as a special defense or counterclaim are mis-
take,4 fraud, and a violation of CUTPA. On remand,
the trier of fact should analyze separately each of the
defendant’s valid defenses under New York law with
respect to each of the notes, and each count of the
counterclaim alleged by the defendant, at least one of
which, the CUTPA count, is subject to Connecticut law,
in accordance with this opinion. . . . To the extent
that the negligent misrepresentation and CUTPA counts
of the counterclaim can still be pursued by the defen-
dant, it is likely that those claims, on the basis of the
alleged place of injury, will be subject to Connecticut
law.’’ (Citations omitted; footnote added.) Id., 82–83.
The plaintiff filed a motion for reconsideration or
clarification, requesting that the court restrict its
remand of the case to order only a hearing in damages.
The plaintiff also requested that the court address the
plaintiff’s claims that the defendant lacked standing to
pursue a CUTPA claim and that CUTPA did not apply
to the parties. The Appellate Court denied the plaintiff’s
motion. This appeal followed. Additional facts will be
set forth as necessary.
I
The plaintiff first contends that although the Appel-
late Court properly concluded that the application of
the parol evidence rule to the facts of the present case
required reversal of the judgment of the trial court, it
improperly ordered a new trial rather than ordering
only a hearing in damages. We agree that the Appellate
Court properly held that the parol evidence rule barred
the introduction of extrinsic evidence to vary the terms
of the notes. Because that conclusion resolved all ques-
tions regarding the defendant’s liability under the notes,
we conclude that the Appellate Court improperly
remanded the case for a new trial rather than directing
judgment for the plaintiff and ordering a hearing in
damages.
The Appellate Court considered whether the substan-
tive contract law of New York or Connecticut applied
to its interpretation and construction of the notes.
Channing Real Estate, LLC v. Gates, supra, 159 Conn.
App. 72. The notes did not contain a choice of law
provision but did require the defendant to make pay-
ment by mail to the plaintiff in New York. The court,
citing § 195 of the Restatement (Second) of Conflict of
Laws, determined that the local law of the state where
the contracts required that payment be made was appli-
cable and, therefore, applied the substantive contract
law of New York. Id., 73–74; 1 Restatement (Second),
Conflict of Laws § 195 (1971). New York’s parol evi-
dence rule is clear. ‘‘Briefly, absent fraud or mutual
mistake, where the parties have reduced their
agreement to an integrated writing, the parol evidence
rule operates to exclude evidence of all prior or contem-
poraneous negotiations between the parties offered to
contradict or modify the terms of their writing.’’ Marine
Midland Bank-Southern v. Thurlow, 53 N.Y.2d 381, 387,
425 N.E.2d 805, 442 N.Y.S.2d 417 (1981). Furthermore,
under New York’s parol evidence rule, ‘‘extrinsic and
parol evidence is not admissible to create an ambiguity
in a written agreement which is complete and clear and
unambiguous upon its face.’’ (Internal quotation marks
omitted.) W.W.W. Associates, Inc. v. Giancontieri, 77
N.Y.2d 157, 163, 566 N.E.2d 639, 565 N.Y.S.2d 440 (1990).
The Appellate Court reviewed the terms of the notes
and determined that ‘‘[e]ach of the six notes represented
and reflected a specific transaction between the parties.
Standing alone, each note constituted an integrated
agreement, supported by new and different consider-
ation, and was enforceable separately according to its
unambiguous terms.’’ Channing Real Estate, LLC v.
Gates, supra, 159 Conn. App. 78. On the basis of that
conclusion, the Appellate Court applied the parol evi-
dence rule and held that the trial court improperly
admitted extrinsic evidence to vary the terms of the
notes. Our review of the notes leads us to the same
conclusion. The clause in each note prohibiting oral
modification is clear. Accordingly, the Appellate Court
properly concluded that the parol evidence rule barred
the consideration of extrinsic evidence. Id., 77–79; see
Marine Midland Bank-Southern v. Thurlow, supra, 53
N.Y.2d 387.
The remaining question is whether, in light of the
Appellate Court’s correct conclusion that the parol evi-
dence rule precluded consideration of the extrinsic evi-
dence relied on by the defendant, the Appellate Court
properly remanded the case for a new trial rather than
directing judgment and ordering a hearing in damages.
Whether the Appellate Court properly determined the
scope of a remand order is a question of law over which
this court’s review is plenary. See, e.g., State v. Tabone,
301 Conn. 708, 713–14, 23 A.3d 689 (2011).
When no question of liability remains, given the undis-
puted facts in the record, the appropriate scope of the
remand is limited to a hearing in damages. See Allstate
Ins. Co. v. Palumbo, 296 Conn. 253, 268, 994 A.2d 174
(2010) (‘‘[t]here are times . . . when the undisputed
facts or uncontroverted evidence and testimony in the
record make a factual conclusion inevitable so that a
remand to the trial court for a determination would
be unnecessary’’ [internal quotation marks omitted]);
Waterbury v. Washington, 260 Conn. 506, 583, 800 A.2d
1102 (2002) (remand for decision on unreached ele-
ments of claim is unnecessary if remaining elements
can be determined as matter of law on record); Coppola
Construction Co. v. Hoffman Enterprises Ltd. Partner-
ship, 157 Conn. App. 139, 171–72, 117 A.3d 876 (remand
for new trial was unnecessary when all elements of
cause of action for breach of contract had been proven),
cert. denied, 318 Conn. 902, 122 A.3d 631 (2015); see
also State v. Carbone, 172 Conn. 242, 254, 374 A.2d 215
(‘‘The reversal of a judgment annuls it, but does not
necessarily set aside the foundation on which it rests.
This foundation may be sufficient to support a judgment
of a different kind, and may be such as to require it. A
reversal therefore is never, standing alone, and ex vi
termini, the grant of a new trial. If the error was one
in drawing a wrong legal conclusion from facts properly
found and appearing on the record, it would be an
unnecessary prolongation of litigation to enter again
on the work of ascertaining them.’’ [Internal quotation
marks omitted.]), cert. denied, 431 U.S. 967, 97 S. Ct.
2925, 53 L. Ed. 2d 1063 (1977).
In the present case, our review of the record reveals
that a remand to the trial court for a new trial is unneces-
sary because there is no question as to the defendant’s
liability under the notes. The trial court, in its findings
of fact, set forth certain terms of the notes and the
undisputed fact of the defendant’s failure to pay any of
the amounts listed in them. Most significantly, there is
no dispute that each of the six notes contains the lan-
guage that both this court and the Appellate Court have
concluded bars the introduction of extrinsic evidence
under the New York parol evidence rule. Namely, each
note provides: ‘‘This [n]ote may not be changed, modi-
fied or discharged, nor any provision waived, orally,
but only in writing, signed by the party against whom
enforcement of any such change, modification, dis-
charge or waiver is sought.’’ The trial court made no
findings of any executed collateral agreements, nor is
there any evidence in the record of any such
agreements. All of the defendant’s defenses and claims
relied on extrinsic evidence. The sole claim raised by
the defendant that would have constituted an exception
to the parol evidence rule—and for which he had stand-
ing—was his special defense of fraud.5 But the trial
court found that the defendant failed to prove fraud,
and the defendant has not appealed from that ruling.
Accordingly, the defendant has not presented any valid
defenses or counterclaims that are exceptions to the
parol evidence rule, and he is liable on the notes as a
matter of law.
The Appellate Court grounded its decision to remand
for a new trial on its conclusion that the trial court’s
misapplication of the law so permeated the trial court’s
findings that a new trial was necessary. Channing Real
Estate, LLC v. Gates, supra, 159 Conn. App. 83. Our
reading of the trial court’s findings leads us to a different
conclusion. The effect of the Appellate Court’s proper
application of the parol evidence rule undermined only
those findings of the trial court that pertained to the
extrinsic evidence offered by the defendant. The appli-
cation of the parol evidence rule simply renders the
court’s findings regarding that extrinsic evidence irrele-
vant. What remain unaffected, however, are the trial
court’s findings of fact that govern the disposition of
the present case as a matter of law. The only matter that
remains to be litigated between the parties, therefore, is
the amount of the plaintiff’s damages.
Notwithstanding the application of the parol evidence
rule, the defendant claims that, because some of the
plaintiff’s actions effected a postcontractual modifica-
tion of the notes, he has a valid and meritorious special
defense in equitable estoppel and therefore is entitled
to a new trial on remand. The defendant did not raise
this distinct claim in the trial court, however. Therefore,
we decline to address its merits. See Practice Book
§ 60-5 (‘‘[t]he court shall not be bound to consider a
claim unless it was distinctly raised at the trial or arose
subsequent to the trial’’).
The following additional relevant facts as found by
the trial court demonstrate that the claim is unpre-
served. In arguing that the plaintiff was equitably
estopped from collecting on the notes, the defendant
relied in part on a letter that the plaintiff sent to the
defendant after the last note was signed. This letter,
which was drafted by the defendant, stated that the
funds that the plaintiff had provided to the defendant
were part of the parties’ proposed real estate transac-
tion, and that through those funds, the plaintiff had
purchased an interest in the commercial real estate
owned by Front Street Commons. Despite the absence
of finalized terms for the proposed transaction and the
lack of any executed operating or option agreements,
Sharon Chan—a member of the plaintiff—signed the
letter on its behalf.
The defendant contends that his defense of equitable
estoppel is not barred by the parol evidence rule
because it relies on an event that occurred after the
execution of the last note—Sharon Chan’s signing of
the letter—to establish a postcontractual modification
of the notes. The defendant claims that because this
event constitutes a postcontractual modification of the
notes, it is not evidence of a prior or contemporaneous
agreement, which would be barred by the parol evi-
dence rule. See Lax v. Design Quest N.Y. Ltd., 101 Ohio App.
Div. 3d 431, 955 N.Y.S.2d 34 (2012). The record reveals,
however, that the defendant did not raise this claim of
postcontractual modification through equitable estop-
pel in the trial court. Instead, he argued to the trial
court that the plaintiff was equitably estopped from
enforcing the notes because the letter was evidence of
the plaintiff’s precontractual representations as to the
purpose of the notes. Accordingly, this claim is unpre-
served and we do not address it.
The defendant also contends that he has the right to
present evidence at a new trial based on the Appellate
Court’s ruling that New York law, rather than Connecti-
cut law, applies when interpreting the notes. As noted
by the Appellate Court, however, ‘‘there are no material
differences between New York and Connecticut law as
applied to the facts of the present case.’’ Channing
Real Estate, LLC v. Gates, supra, 159 Conn. App. 73.
II
The plaintiff next claims that because the defendant
lacks standing to allege a violation of CUTPA, a new
trial on the third count of the defendant’s counterclaim
is unwarranted. Specifically, the plaintiff argues that
Front Street Commons, not the defendant, would be
the proper party to allege any such claim. We agree.
The following additional facts are relevant to our
determination of this issue. During the parties’ negotia-
tions regarding Front Street Commons’ commercial real
estate, the parties exchanged various proposed option
and operating agreements, none of which was executed.
The proposed agreements listed Front Street Commons
as a party, not the defendant. At trial, the defendant
sought damages for lost rental income suffered by Front
Street Commons, and the trial court found that ‘‘[t]he
injury to the defendant is that Front Street Commons
no longer receives financial assistance, as necessary,
from the plaintiff.’’ (Emphasis added.) Front Street
Commons is not a party to this action.
The issue of standing implicates a court’s subject
matter jurisdiction and is subject to plenary review.
See New Hartford v. Connecticut Resources Recovery
Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009).
‘‘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 spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action].’’ (Inter-
nal quotation marks omitted.) May v. Coffey, 291 Conn.
106, 112, 967 A.2d 495 (2009).
Although this court has not addressed the question
of whether a member of a limited liability company has
standing to bring suit on the basis of a wrong allegedly
suffered by the limited liability company, we find guid-
ance in the decisions of the Appellate Court. ‘‘A limited
liability company is a distinct legal entity whose exis-
tence is separate from its members. . . . A limited lia-
bility company has the power to sue or to be sued in
its own name; see General Statutes §§ 34-124 (b) and
34-186; or may be a party to an action brought in its
name by a member or manager. See General Statutes
§ 34-187.6 A member or manager, however, may not sue
in an individual capacity to recover for an injury based
on a wrong to the limited liability company.’’ (Citation
omitted; footnote added; internal quotation marks omit-
ted.) O’Reilly v. Valletta, 139 Conn. App. 208, 214, 55
A.3d 583 (2012), cert. denied, 308 Conn. 914, 61 A.3d
1101 (2013).
In the present case, the facts demonstrate that it is
Front Street Commons and not the defendant that
would have standing to assert a CUTPA claim against
the plaintiff. The defendant has not demonstrated a
specific, personal, and legal interest separate from that
of Front Street Commons. Front Street Commons
owned the property that was at issue during the parties’
negotiations. Front Street Commons would have been a
party to the proposed option and operating agreements.
Front Street Commons allegedly lost financial assis-
tance from the plaintiff and suffered lost rental income.
From these facts, it is clear that the injuries the defen-
dant alleges in the CUTPA count of his counterclaim,
if any, are those allegedly suffered by Front Street Com-
mons specifically, and not the defendant. Front Street
Commons is a limited liability company and is therefore
a distinct legal entity from the defendant, who is simply
a member of that entity. Because a member of a limited
liability company cannot recover for an injury allegedly
suffered by the limited liability company, we conclude
that the defendant lacks standing to pursue a claim
alleging a violation of CUTPA. But cf. Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 215–16, 982 A.2d 1053 (2009)
(members of limited liability company have standing
to bring claims for breach of contract when they are
personally parties to contract).
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to reverse the judgment of the trial court in favor
of the defendant on the complaint and on the third
count of the counterclaim and to remand the case to
the trial court with direction to render judgment for
the plaintiff as to the liability on the complaint and on
the third count of the counterclaim, and for a hearing
in damages on the complaint; the judgment of the Appel-
late Court is affirmed in all other respects.
In this opinion the other justices concurred.
1
We granted the plaintiff’s petition for certification to appeal limited to
the following questions: (1) ‘‘Did the Appellate Court correctly remand this
case for a new trial instead of a hearing in damages?’’; (2) ‘‘Did the Appellate
Court correctly order a retrial on the defendant’s negligent misrepresentation
claim when there was no appeal from the trial court’s decision against him?’’;
(3) ‘‘Did the defendant have standing to raise a [CUTPA] claim?’’; and (4)
‘‘Does CUTPA apply to disputes among either intracorporate entities and/
or joint venturers?’’ Channing Real Estate, LLC v. Gates, 319 Conn. 952,
125 A.3d 530 (2015). This court’s resolution of the first certified question is
dispositive of the second certified question. See footnote 2 of this opinion.
Further, because we conclude that the defendant lacks standing to pursue
a CUTPA claim against the plaintiff, we need not reach the fourth certi-
fied question.
2
The defendant did not appeal from the trial court’s judgment awarding
him no damages on his counterclaim for negligent misrepresentation and
therefore did not preserve this claim for appeal. Even if the defendant
had appealed from the trial court’s judgment, the defendant’s counterclaim
sounding in negligent misrepresentation relied on the same extrinsic evi-
dence that he cited in support of his defenses to the plaintiff’s complaint.
Accordingly, our conclusion that the Appellate Court properly concluded
that the parol evidence rule precluded the consideration of that extrinsic
evidence is dispositive of the second certified question. See footnote 1 of
this opinion.
3
Initially, the trial court had awarded the defendant $28,000 in attorney’s
fees. In response to the plaintiff’s objection to that award, the court
decreased the defendant’s award to $25,575.
4
Although the Appellate Court’s opinion appears to suggest that the defen-
dant pleaded mistake as a special defense, our review of the record does
not reveal that the defendant did so.
5
We recognize that the defendant also brought a counterclaim asserting
that the plaintiff violated CUTPA. As we explain in part II of this opinion,
we conclude that the defendant lacks standing to pursue a CUTPA claim
against the plaintiff. Accordingly, it is unnecessary for us to resolve whether
the defendant’s allegations supporting his CUTPA claim, if proven, would
constitute an exception to New York’s parol evidence rule.
6
We note that §§ 34-124, 34-186 and 34-187 have been repealed, effective
July 1, 2017. See Public Acts 2016, No. 16-97. We also note, however, that
General Statutes § 34-243h (a), effective July 1, 2017, provides: ‘‘A limited
liability company has the capacity to sue and be sued in its own name and
the power to do all things necessary or convenient to carry on its activities
and affairs.’’