Warren v. Cuseo Family, LLC , 165 Conn. App. 230 ( 2016 )

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ELLIOT R. WARREN, EXECUTOR (ESTATE OF
YVONNE B. CUSEO) v. CUSEO
FAMILY, LLC, ET AL.
(AC 37239)
DiPentima, C. J., and Lavine and Sheldon, Js.
Argued February 8—officially released May 3, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. George N. Thim, judge trial referee.)
Albert R. Cuseo III, self-represented, the appellant
(defendant Albert R. Cuseo III).
Douglas R. Brown, with whom, on the brief, was
Daniel B. Fitzgerald, for the appellee (plaintiff).
Opinion
LAVINE, J. This appeal arises from the judgment of
the trial court appointing the plaintiff, Elliot R. Warren,1
as the receiver of the defendant Cuseo Family, LLC
(company), a Connecticut limited liability company.2
On appeal, the defendant3 Albert Cuseo III claims (1)
that the plaintiff lacked standing to bring a receivership
action against the company, and (2) that the court erred
in appointing the plaintiff as the receiver of the
company.
The following facts and procedural history are rele-
vant to this appeal. The decedent, Yvonne Cuseo, was
a member of the company who died testate on July 8,
2010. The plaintiff is the executor of her estate. Her
surviving son, Peter Cuseo, is a member of the company.
The defendant and John Cuseo are the decedent’s
grandchildren, who are also members of the company.
The company was formed on September 11, 1995,
and its primary asset is commercial real property at
1680 Post Road East in Westport (property). The dece-
dent held a 57 percent ownership interest in the com-
pany. The company leased the property to A & J Farm
Stand, LLC (tenant), whose principal member is the
defendant. The tenant operated a business on the prop-
erty. In a codicil to her will, the decedent bequeathed
her interest in the company to the remaining members,
Peter Cuseo, John Cuseo, and the defendant.
On July 17, 2012, the Probate Court approved an
interim accounting of the estate submitted by the plain-
tiff, which the defendant appealed to the Superior
Court. The estate did not have sufficient liquid assets
to meet its expenses. In the decree, the Probate Court
granted the plaintiff permission to bring an action in
the Superior Court to dissolve the company. On April
22, 2013, the plaintiff, represented by counsel, com-
menced the present action seeking dissolution of the
company and appointment of himself as the receiver
and served the complaint on the company,4 the defen-
dant, Peter Cuseo, and John Cuseo. The probate appeal
and the present receivership action were presented
simultaneously in a hearing to the Superior Court. The
plaintiff, defendant, and other witnesses testified at the
hearing. On July 24, 2014, the court issued a memoran-
dum of decision affirming the interim accounting.5 On
that same date, the court issued a separate memoran-
dum of decision appointing the plaintiff as the tempo-
rary receiver of the company.
The trial court found that the company had been
dissolved pursuant to the terms of the operating
agreement because the decedent’s death constituted an
event of dissociation, and a dissolution had occurred
because a supermajority of the nondissociated mem-
bers did not consent in writing to continue the business
of the company within ninety days. The court found
that since October, 2010, the company’s members had
been deadlocked as to the election of a liquidating mem-
ber, pursuant to the operating agreement, to wind up
the company’s affairs and file articles of dissolution
with the Office of the Secretary of State. The court also
found that the company had not filed income tax returns
in 2010, 2011, and 2012, and was not enforcing its rights
as landlord to collect rent under a lease agreement. The
court concluded that the tenant had not paid rent since
the decedent’s death because the defendant unilaterally
decided that the tenant would no longer pay the com-
pany for use of the property. The court determined that
the tenant also had failed to pay $71,419.09 in real estate
taxes as required by the terms of the lease. The court
found, as well, that the defendant had been making
decisions on behalf of the company without the consent
and against the interests of the other members. For
these reasons, the court appointed the plaintiff as tem-
porary receiver of the company.6 The estate has yet to
be settled. This appeal followed. Additional facts will
be set forth as necessary.
I
The defendant’s first claim is that the plaintiff lacked
standing to bring the receivership action and seek disso-
lution of the company because the decedent’s estate
is not a member of the company. He asserts that the
operating agreement prohibited the decedent’s interest
in the company from becoming part of her estate upon
her death. His argument essentially is that the dece-
dent’s interest in the company is a nonprobate asset,
and thus the plaintiff does not have standing to bring
the receivership action.
The following legal principles are relevant to this
claim. ‘‘It is well established that [a] party must have
standing to assert a claim in order for the court to have
subject matter jurisdiction over the claim. . . . Stand-
ing is the legal right to set judicial machinery in motion.
One cannot rightfully invoke the jurisdiction of the
court unless he [or she] has, in an individual or represen-
tative 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. . . . [T]he court has a duty
to dismiss, even on its own initiative, any appeal that
it lacks jurisdiction to hear. . . . Where a party is found
to lack standing, the court is consequently without sub-
ject matter jurisdiction to determine the cause. . . .
Our review of the question of [a] plaintiff’s standing is
plenary.’’ (Citations omitted; internal quotation marks
omitted.) Megin v. New Milford, 125 Conn. App. 35, 37,
6 A.3d 1176 (2010).
An executor is a legal representative of a decedent’s
estate. See G. Wilhelm et al., Settlement of Estates in
Connecticut (3d Ed. Rev. 2016) § 7:3 (‘‘the law places
the executor or administrator in direct succession to
the deceased and vests in the fiduciary title to the
deceased’s personal estate [other than real estate]’’).
‘‘General Statutes § 45a-341 (a) requires executors and
[executrixes] to gather, appraise, and inventory all prop-
erty of the decedent’s estate at the time of his death,
except real property located outside the state. Section
45a-341 (a) (3) provides that the inventory of a dece-
dent’s estate shall include both tangible and intangible
personal property.’’ (Footnote omitted.) Hall v. Schoen-
wetter, 239 Conn. 553, 559–60, 686 A.2d 980 (1996). ‘‘A
limited liability company membership interest is per-
sonal property.’’ General Statutes § 34-169. ‘‘The estate
of a deceased person consists of property the title to
or an interest in which is derived from [her], which it
is the duty of the executor or administrator to inventory
and for which he must account to the Probate Court.’’
American Surety Co. of New York v. McMullen, 129
Conn. 575, 582–83, 30 A.2d 564 (1943).
‘‘An execut[or] has a fiduciary responsibility to main-
tain an undivided loyalty to the estate . . . and must
diligently represent the rights of the heirs and distribu-
tees and also those of creditors.’’ (Citation omitted;
internal quotation marks omitted.) Hall v. Schoenwet-
ter, supra, 239 Conn. 559. General Statutes § 45a-234
confers several powers upon fiduciaries, including the
power to retain property, the power to participate in
reorganizations, which includes dissolution actions of
property in which a decedent held an interest, and the
power to litigate on behalf of the estate. The legal suc-
cessor to a deceased member of a limited liability com-
pany, unless limited by the terms of the operating
agreement, ‘‘may exercise all of the member’s rights
for the purpose of settling the member’s estate or
administering the member’s property . . . .’’ General
Statutes § 34-173 (a). Moreover, General Statutes § 34-
207 provides: ‘‘On application by or for a member, the
superior court for the judicial district where the princi-
pal office of the limited liability company is located
may order dissolution of a limited liability company
whenever it is not reasonably practicable to carry on
the business in conformity with the articles of organiza-
tion or operating agreement.’’ (Emphasis added.)
The defendant’s assertion that the plaintiff lacked
standing because the decedent’s interest in the com-
pany is not part of the estate is based on a misinterpreta-
tion of the operating agreement and a misunderstanding
of the law regarding the administration of estates. The
operating agreement does not support the defendant’s
assertion that the decedent’s interest in the company
passed immediately outside of probate to the remaining
members. The decedent’s interest in the company was
personal property that became a part of her estate upon
her death. The plaintiff, as executor, had the duty to
gather all of the personal property belonging to the
estate and to administer it for the benefit of all the
estate’s beneficiaries subject to the supervision of the
Probate Court. An executor, by statute, has the power
to represent a decedent’s personal property interest
that is part of the estate. We thus conclude that the
plaintiff had standing to bring the receivership action.
II
The defendant’s second claim is that the trial court
erred in appointing the plaintiff as the receiver of the
company. Specifically, the defendant asserts that the
plaintiff is barred from acting as receiver because he
has a conflict of interest.
The following additional facts are relevant to this
claim. The plaintiff is an attorney, and the defendant
asserts that he has a conflict of interest because he had
provided legal services to the defendant in the past
unrelated to matters involving the company or the dece-
dent’s estate. At the hearing before the trial court, the
plaintiff testified that he had counseled the defendant
regarding an unrelated business dispute about pellet
stoves several years before the present case began. The
plaintiff also testified that he had provided legal services
to John Cuseo and his wife Michelle Cuseo, as well as
Peter Cuseo and his wife Teresa Cuseo. The defendant
also suggests that the plaintiff has a conflict of interest
because he participated in the drafting of the company’s
operating agreement. The defendant claims that this
disqualifies the plaintiff from serving as receiver of the
company. The trial court did not address whether the
plaintiff had a conflict of interest in either of the memo-
randa of decision that it issued. The defendant filed a
motion for reconsideration from the trial court’s deci-
sion to appoint the plaintiff as receiver, in which he
asserted, inter alia, that the plaintiff had a conflict of
interest that prevented him from serving as receiver of
the company. The court denied the motion and did not
address the defendant’s conflict of interest claim. The
defendant did not seek an articulation of the trial
court’s ruling.
We conclude that the record is not sufficient for us
to consider the defendant’s claim that the plaintiff’s
alleged conflict of interest precludes him from serving
as receiver of the company. The trial court did not make
a finding with respect to the alleged conflict of interest,
nor did it address the claim in denying the defendant’s
motion to reconsider. The defendant did not seek an
articulation of the trial court’s ruling. See Practice Book
§ 66-5. We are cognizant of the increased difficulty a
self-represented party will likely have in preserving
issues for appellate review, but nevertheless ‘‘[w]e have
repeatedly held that this court will not consider claimed
errors on the part of the trial court unless it appears
on the record that the question was distinctly raised
at trial and was ruled upon and decided by the court
adversely to the appellant’s claim.’’ (Internal quotation
marks omitted.) LaBow v. LaBow, 115 Conn. App. 419,
425–26, 973 A.2d 127, cert. denied, 293 Conn. 918, 979
A.2d 489 (2009), cert. denied, 295 Conn. 912, 990 A.2d
344 (2010); see also Williams v. Hartford Hospital, 122
Conn. App. 597, 601 n.2, 1 A.3d 130 (2010) (appellate
courts will not review claims not addressed by trial
court in rendering its judgment).
The judgment is affirmed.
In this opinion the other judges concurred.
1
As discussed in this opinion, Warren brought this action in his capacity
as the executor of the estate of Yvonne B. Cuseo. We refer to him as the
plaintiff in this opinion.
2
Albert Cuseo III, who is not an attorney, filed an appearance on behalf
of the company. The plaintiff filed a motion requesting that the company
be defaulted for failure to appear, contending that a nonattorney officer of
a limited liability company may not appear on behalf of the company. On
September 4, 2013, the trial court granted the motion for default.
3
Peter Cuseo and John Cuseo are also defendants in this case. John Cuseo
is self-represented and has not filed a brief. Peter Cuseo has not appeared.
Throughout the opinion, we refer to Albert Cuseo III as the defendant and
to the other parties by name.
4
The plaintiff is the registered agent for the company.
5
The defendant filed an appeal, AC 37240, from the Superior Court’s
judgment affirming the interim accounting of the Probate Court. This court
dismissed that appeal on July 8, 2015, because the defendant failed to file
a brief. The defendant has included issues raised in AC 37240 in the present
appeal. We decline to consider them.
6
We note that that appointment of the plaintiff as temporary receiver is
an appealable final judgment in these circumstances. Although it is well
established that an order that grants temporary injunctive relief is not a
final judgment; see Massachusetts Mutual Life Ins. Co. v. Blumenthal, 281
Conn. 805, 811, 917 A.2d 951 (2007); the order challenged here is not one
in the nature of a temporary injunction because it ‘‘was not issued as a
temporary measure until the court could permanently determine the rights
of the parties.’’ Bozrah v. Chymurynski, 303 Conn. 676, 682, 36 A.3d 210
(2012); see id., 681–82 (finding that despite trial court’s characterization of
order as temporary injunction, order was an appealable final judgment
because it conclusively determined parties’ rights). In the present case, the
appointment of the plaintiff as receiver concluded the litigation, given that
the court made final determinations that the company had been dissolved
pursuant to the terms of its operating agreement and the plaintiff is entitled
to wind up the company to settle the decedent’s estate.