Zuvic, Carr & Associates, Inc. v. Morande Brothers, Inc. ( 2015 )

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ZUVIC, CARR & ASSOCIATES, INC. v. MORANDE
BROTHERS, INC.
(AC 36441)
Beach, Alvord and Pellegrino, Js.
Argued December 2, 2014—officially released May 19, 2015
(Appeal from Superior Court, judicial district of New
Britain, Cobb, J.)
Peter A. Ventre, for the appellant (plaintiff).
John C. Matulis, Jr., for the appellee (defendant
Robert J. Morande).
Opinion
BEACH, J. The primary issue in this matter concerns
the duty of a director of a corporation to provide for the
payment of the corporation’s debts upon its dissolution.
The plaintiff, Zuvic, Carr & Associates, Inc., appeals
from the judgment of the trial court rendered in favor
of the defendant Robert J. Morande.1 The court found
in favor of the plaintiff on its breach of contract claim
as to Morande Brothers, Inc., but rejected the plaintiff’s
claim that the defendant individually breached his duty
as a director of that corporation under General Statutes
§ 33-887b (a). The plaintiff claims that the court erred
in determining that § 33-887b (a) did not apply in the
circumstances of this case. We agree and, accordingly,
reverse in part the judgment of the trial court.
The trial court found the following facts. ‘‘On January
10, 2011, the plaintiff and . . . Morande Brothers, Inc.,
executed a settlement agreement, resolving a civil
action entitled Zuvic Associates v. Morande Bros., Inc.,
Docket No. HHB-CV-10-5015129-S (original action). Pur-
suant to the recitals in the settlement agreement, the
original action involved claims arising out of two
invoices for services provided by the plaintiff to . . .
Morande Brothers, Inc., totaling approximately $19,000.
The invoices pertained to environmental remediation,
and other services, provided by the plaintiff to the cor-
porat[ion] regarding property in Manchester owned by
[Morande Brothers, Inc.], which it intended to sell.
‘‘Pursuant to the settlement agreement . . . Mora-
nde Brothers, Inc., agreed to pay the plaintiff $17,000,
and the plaintiff agreed to withdraw the original action
with prejudice and without costs to either party. Pursu-
ant to section C of the settlement agreement, the parties
provided standard mutual releases. However, under
section C6 of the settlement agreement, the parties
agreed that: ‘Notwithstanding the releases agreed to
and set forth in paragraphs 4 and 5 above, this
agreement does not release, and is not intended to
release, either party from any obligations that might
arise out of a Department of Environmental Protection
(DEP) audit of the [Licensed Environmental Profes-
sional] verification prepared by [the plaintiff] as to the
Site. In the event that a future DEP audit does require
or request additional environmental remediation at the
Site, this agreement does not release [the plaintiff] from
any obligations that it may have with regard to comply-
ing with such requirements and requests, nor does it
release Morande [Brothers, Inc.] from any obligations
that it may have for all costs arising out of [the plain-
tiff’s] actions to comply with such requirements or
requests, including [the plaintiff’s] fees for time and
material used in preparing responses to the DEP. . . .
The settlement agreement was signed by Robert J. Carr,
on behalf of [the plaintiff], and by . . . William R. Mor-
ande on behalf of Morande Brothers, Inc. Both parties
were represented by counsel in the original action and
with respect to the preparation and execution of the
settlement agreement.
‘‘Several months after the settlement agreement was
executed on or about June 17, 2011, the plaintiff
received a notice of audit from the [DEP]. That notice
stated that the DEP commissioner was conducting a
technical audit of the plaintiff’s verification, that the
property had been investigated in accordance with the
prevailing standards and guidelines, and that it had been
properly remediated. The letter notified the plaintiff of
an upcoming meeting, and stated that the plaintiff
should be ‘prepared to present his conceptual site
model and any additional information which may sup-
port verification.’ The June 17, 2011 letter attached a
document which listed issues of concern.
‘‘Upon receiving the letter, the plaintiff contacted
[Morande Brothers, Inc.], which had already received
a copy of the letter. The plaintiff prepared a point by
point response to DEP’s identified concerns and partici-
pated in several meetings with DEP officials, [Morande
Brother’s Inc.’s] representative and/or attorney and the
new owner of the property. The plaintiff provided these
services and attended these meetings because [it]
believed [it] was obligated to do so under section C6
of the settlement agreement.
‘‘On August 8, 2011, the plaintiff sent [Morande Broth-
ers, Inc.] an invoice for [its] services in connection with
the DEP audit in the amount of $3254.85. The plaintiff
then received a letter from [Morande Brothers Inc.’s]
attorney indicating that [it] refused to pay the invoice.
The plaintiff then sent another letter asking [Morande
Brothers, Inc.] to reconsider and attach[ed] a copy of
the settlement agreement . . . indicating its position
that the work done in response to the DEP audit was
done pursuant to the settlement agreement. A second
meeting was held with DEP at the end of 2011, concern-
ing the audit. The plaintiff again participated in the
meeting as did the attorney for [Morande Brothers, Inc.]
The plaintiff sent [Morande Brothers, Inc.] an additional
invoice for $661.50 for [its] services, which [Morande
Brothers, Inc.] again refused to pay. . . . When [it] did
not pay the invoices, the plaintiff brought an action
in small claims court on December 20, 2011, against
Morande Brothers, Inc. On December 28, 2011, [Mora-
nde Brothers, Inc.] moved to transfer the matter to the
regular docket of the Superior Court, claiming that it
had a good defense to the claim. . . . The matter was
then docketed in the Superior Court. . . .
‘‘In May, 2011, the board of [Morande Brothers, Inc.]
[had] voted to dissolve the corporation. On or about
January 3, 2012, Morande Brothers, Inc., filed docu-
ments of corporate dissolution with the Secretary of
the State, stating that the dissolution was authorized
on December 15, 2011. Evidence was presented at trial
that [the defendant] and William Morande were officers
and shareholders of Morande Brothers, Inc., and the
pleadings confirm that [the defendant] was a director.
On or about July 13, 2012, [Morande Brothers, Inc.’s]
attorney sent to the plaintiff a written notice of the
corporate dissolution pursuant to General Statutes § 33-
886. The plaintiff did not respond to this notice.’’
In the operative complaint, the plaintiff brought, inter
alia, a count alleging breach of contract against Mora-
nde Brothers, Inc., and a count alleging a violation of
§ 33-887b (a)2 against the defendant, in his capacity as
a director of Morande Brothers, Inc., for his failure to
provide for the plaintiff’s claim upon dissolution of the
corporation.3 The defendant asserted, by way of special
defense, that the action was barred by § 33-886 because
the plaintiff failed to respond to the notice of dissolu-
tion, prescribed by § 33-886, which Morande Brothers,
Inc., had sent to the plaintiff by certified mail on July
13, 2012. The notice required that any claim against the
corporation, with supporting evidence, was to be served
on the defendant by November 23, 2012. Failure to
present a claim in this manner would result in its being
barred. The plaintiff did not directly respond to the
notice.4
The court found in favor of the plaintiff on its breach
of contract claim against Morande Brothers, Inc. The
court reasoned that the plaintiff’s services in responding
to the audit were required by section C6 of the settle-
ment agreement and that Morande Brothers, Inc.,
breached the settlement agreement by failing to pay
the invoices for the plaintiff’s services. The court
awarded the plaintiff $3916.85 in damages for breach
of contract. The court found in favor of the defendant
as to the plaintiff’s claim that he had violated § 33-887b.
The court noted that the defendant had admitted in his
answer that he was a director, but held that the plaintiff
failed to establish that § 33-887b (a) applied when, as
in this case, the claim against the corporation of which
the defendant was a director was disputed and was in
litigation at the time the corporation was dissolved.
The court rejected the defendant’s special defense that
alleged the plaintiff’s claim was barred for failure to
respond to the statutory notice. The court awarded the
plaintiff $20,000 in attorney’s fees, apparently to be paid
by Morande Brothers, Inc., and costs pursuant to Gen-
eral Statutes § 52-251a, which permits a prevailing plain-
tiff to recover reasonable attorney’s fees and costs in
matters transferred from the small claims docket to the
regular docket in the Superior Court on the defendant’s
motion. This appeal followed.
I
We begin by briefly reviewing the relevant statutory
scheme regarding the obligations of a voluntarily dis-
solved corporation and its directors to provide for
claims. A corporation may voluntarily dissolve by fol-
lowing prescribed procedures set forth in General Stat-
utes § 33-881. On dissolution, it is required to file with
the Secretary of the State a certificate of dissolution;
the corporation is formally dissolved as of the effective
date of the certificate of dissolution. General Statutes
§ 33-882 (a) and (b). A dissolved corporation may con-
duct no business other than wrapping up its affairs;
General Statutes § 33-884 (a); dissolution specifically
‘‘does not . . . abate or suspend a proceeding pending
by or against the corporation on the effective date of
dissolution . . . .’’ General Statutes § 33-884 (b) (6).
Actions pending on the effective date of dissolution,
then, continue on. The legislature has also required
dissolved corporations to anticipate future claims that
have not yet been brought against it as of the effective
date of dissolution. Future claims fall into two catego-
ries, known and unknown. A dissolved corporation is
required to send notice to known claimants, who are
then barred from asserting claims if they fail to present
them or, if necessary, to commence an action, within
prescribed time limits. General Statutes § 33-886 (a)
and (c). As to unknown claims, a dissolved corporation
may publish notice of its dissolution and provide for
an opportunity for prospective claimants to present
claims; claims not so presented may be barred. General
Statutes § 33-887 (a) through (c). A dissolved corpora-
tion may request the Superior Court to determine the
amount and form of security for payment of future
claims. General Statutes § 33-887a (a). If it does so, the
dissolved corporation is, in general, protected against
future claims to the extent they might exceed the
amount determined by the court. General Statutes § 33-
887a (d).
Section 33-887b prescribes the duty of directors of
dissolved corporations. Subsection (a) of § 33-887b
requires directors of dissolved corporations to pay
claims or to make reasonable provision for their pay-
ment, and to distribute assets of the corporation to
shareholders only after doing so. Subsection (b) of § 33-
887b provides that directors who have proceeded in
accordance with the statutory provisions regarding
claims against a dissolved corporation, §§ 33-886
through 33-887a, shall not be liable for breach of subsec-
tion (a).5
With this statutory framework in mind, we turn to
the specific claims of the parties. The plaintiff claims
that the court erred in concluding that § 33-887b (a)6
did not apply, such that the defendant, in his capacity
as a director of a dissolved corporation, could not be
liable. It argues that the defendant, as a director of
Morande Brothers, Inc., failed to comply with the statu-
tory mandate to pay or otherwise to provide for the
payment of claims and that ‘‘the trial court’s decision
yielded a result in which the plaintiff is left without any
recovery as a consequence of [Morande Brothers, Inc.]
voluntarily dissolving and its directors [the defendant]
walking away, with neither making any provisions to
address the plaintiff’s claim, though at the time [Mora-
nde Brothers, Inc.] was voluntarily dissolved at the
hands of the defendant director, the plaintiff’s claim
was present and pending, but neither the corporation
nor its directors made any provision to address the
claim.’’ The plaintiff requests that we conclude that the
trial court erred in determining that the defendant could
not be held liable pursuant to § 33-887b for the damages
due from the corporation.
‘‘A dispute about the applicability and interpretation
of a statute is entitled to plenary review on appeal.’’
Trevek Enterprises, Inc. v. Victory Contracting Corp.,
107 Conn. App. 574, 580, 945 A.2d 1056 (2008). As pre-
viously noted, § 33-887b provides: ‘‘(a) Directors of a
dissolved corporation shall cause the dissolved corpo-
ration to discharge or make reasonable provision for
the payment of claims and make distributions of assets
to shareholders after payment of or provision for
claims. (b) Directors of a dissolved corporation which
has disposed of claims under section 33-886, 33-887 or
33-887a shall not be liable for breach of subsection
(a) of this section with respect to claims against the
dissolved corporation that are barred or satisfied under
section 33-886, 33-887 or 33-887a.’’ By its plain terms,
§ 33-887b (a) requires directors of dissolved corpora-
tions to ‘‘make reasonable provision for the payment
of claims.’’ General Statutes § 33-887b (a); see, e.g., Cac-
iopoli v. Lebowitz, 309 Conn. 62, 69, 68 A.3d 1150 (2013)
(plain and unambiguous statutes that do not yield
unworkable results given effect without resort to extra-
textual evidence).
The court erred in determining categorically that § 33-
887b (a) did not apply. The court found that the defen-
dant was an officer, shareholder and director of Mora-
nde Brothers, Inc. The court further found that the
board of directors, of which the defendant was a mem-
ber, voted to dissolve the corporation in May, 2011;
authorized dissolution on December 15, 2011; and filed
documents of corporate dissolution on or about January
3, 2012. The plaintiff commenced the small claims
action on December 20, 2011, and the action, thus, was
pending on the effective date of dissolution. Morande
Brothers, Inc., requested removal to the regular docket
on December 28, 2011.7 The court further found that
the claim at issue was in litigation at the time of dissolu-
tion. In the answer to the plaintiff’s operative complaint,
the defendant admitted that, at the time Morande Broth-
ers, Inc., filed for dissolution, the plaintiff’s claim was
known to Morande Brothers, Inc., and the defendant.
The court, however, concluded that the plaintiff had
not established that § 33-887b (a) applied because the
claim was disputed and in litigation when the corpora-
tion was dissolved. There was no further analysis. Sec-
tion 33-887b (b) provides that: ‘‘Directors of a dissolved
corporation which has disposed of claims under sec-
tion 33-886, 33-887 or 33-887a shall not be liable for
breach of subsection (a) of this section with respect to
claims against the dissolved corporation that are barred
or satisfied under section 33-886, 33-887 or 33-887a.’’
(Emphasis added.) At the time of dissolution, the plain-
tiff’s claim had not been disposed of, but rather had
been filed in small claims court and was disputed by
Morande Brothers, Inc.
Furthermore, subsection (b) of § 33-887b does not
relieve the defendant, on the facts of this case, from
his obligation under subsection (a). None of the predi-
cates of § 33-887b (b) apply. First, the court concluded,
quite properly, that the action was not barred by § 33-
886, and this conclusion is not contested on appeal.
Second, § 33-887 is inapplicable, as it pertains only to
unknown claims against a dissolved corporation. Third,
the claim was not processed pursuant to § 33-887a (a),
which provides in relevant part: ‘‘A dissolved corpora-
tion that has published notice under section 33-887 may
file an application with the superior court . . . for a
determination of the amount and form of security to
be provided for payment of claims that are contingent
or have not been made known to the dissolved corpora-
tion or that are based on an event occurring after the
effective date of dissolution but that, based on facts
known to the dissolved corporation, are reasonably esti-
mated to arise after the effective date of dissolution.
. . .’’ The defendant did not dispose of the claim under
any of the statutes specified in subsection (b), and,
accordingly, the defendant was obligated by subsection
(a) to make provision for the payment of the plaintiff’s
claim upon dissolution. The logic is straightforward:
the plaintiff’s claim was filed and pending at the time
of dissolution. None of the provisions regarding
arrangements for meeting future claims were, therefore,
applicable. The directors of dissolved corporations
have the obligation to provide reasonably for the pay-
ment of claims pursuant to § 33-887b (a), and the limita-
tions to that obligation, as set forth in § 33-887b (b),
are not applicable here. Therefore, § 33-887b (a) applies.
The defendant, however, raises additional arguments
that he cannot be personally liable to the plaintiff for
damages pursuant to § 33-887b (a). He contends that
his unchallenged testimony demonstrates that Morande
Brothers, Inc., ceased operations in June or July of 2008,
yet the plaintiff failed to elicit at trial any testimony that
Morande Brothers, Inc., had distributed any assets to
shareholders after May 19, 2011. As a result, the defen-
dant argues, ‘‘the plaintiff failed to prove that one of
the primary policy objectives of the statute–the fair
treatment of creditors before corporate assets were
distributed to shareholders–was disregarded.’’ His argu-
ment is not persuasive. The court did not find as a fact
that Morande Brothers, Inc., ceased operations in June
or July of 2008. Moreover, § 33-887b (a) unambiguously
provides: ‘‘Directors of a dissolved corporation shall
cause the dissolved corporation to discharge or make
reasonable provision for the payment of claims . . . .’’
The date that a corporation discontinues usual business
operations is statutorily immaterial.
The defendant also argues that the plaintiff is asking
this court to ‘‘add a new gloss to the statute which is
not in the words written by the legislature. Specifically,
it asks this court to apply director liability under section
33-887b, even when the underlying unsecured claim is
disputed.’’ This argument is also unpersuasive. Section
33-887b (a) provides for directorial liability when a
director of a dissolved corporation does not make rea-
sonable provision for the payment of claims.8 Subsec-
tion (b) of § 33-887b provides that a director is not liable
under subsection (a) when the director has ‘‘disposed
of claims under section 33-886, 33-887 or 33-887a
. . . .’’ Section 33-887b (a), then, establishes a cause
of action as to directors who fail to make reasonable
provision for the payment of debts, and § 33-887b (b)
excepts a subset of potential claims. The present claim
does not fall within the subset for which directors ‘‘shall
not be liable.’’ No judicial gloss is needed to arrive at
this conclusion. See, e.g., Vibert v. Board of Education,
260 Conn. 167, 176, 793 A.2d 1076 (2002) (‘‘in interpre-
ting a statute, we do not interpret some clauses of a
statute in a manner that nullifies other clauses but,
rather, read the statute as a whole in order to reconcile
all of its parts’’).
II
The defendant further argues that he cannot be per-
sonally liable to the plaintiff for 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.’’9 The defendant argues
that the action triggering the applicability in § 52-251a
is the making of a motion to transfer by the defendant.
Morande Brothers, Inc., was the party who moved to
transfer the action, and the plaintiff did not even move
to cite the defendant into the case until July 31, 2012,
months after the transfer to the regular docket. He
further contends that the plaintiff never claimed that
it was attempting to impose liability upon the defendant
by piercing the corporate veil or any similar strategy.
The record indicates that the plaintiff moved to cite
in the defendant and William R. Morande as additional
parties, and filed the operative complaint alleging
claims against them in July, 2012.10 The motion to trans-
fer was filed previously on December 28, 2011.
The memorandum of decision and the judgment indi-
cate that judgment was rendered against Morande
Brothers, Inc., but in favor of the defendant because
the court held that § 33-887b did not apply to the circum-
stances of this case. The court also awarded fees and
costs as a result of the transfer to the regular docket,
but did not precisely indicate against whom the award
was made. Logically, the award of costs and fees could
only have been made against the corporation because
the defendant was not found liable on the merits.
We held in part I of this opinion that § 33-877b is
applicable in the circumstances of this case. The trial
court will be tasked on remand to determine whether
the defendant breached his directorial duty, under the
circumstances, either to pay the plaintiff’s claim or to
make reasonable provision for payment, and, if so, what
damages were proximately caused by the breach of that
duty. In the circumstances of this appeal, we need not
decide whether fees and costs11 could lawfully be
imposed on the defendant pursuant to § 52-251a.12
The judgment is reversed in part and the case is
remanded to the trial court for further proceedings con-
sistent with this opinion. The judgment is affirmed in
all other respects.
1
The defendant in the original action was Morande Brothers, Inc. There-
after, Robert J. Morande and William R. Morande were cited in as party
defendants. Only Robert J. Morande filed a brief in this court and, thus, we
will refer to him as the defendant. For purposes of clarity, we refer to the
other defendants individually by name.
2
General Statutes § 33-887b (a) provides: ‘‘Directors of a dissolved corpo-
ration shall cause the dissolved corporation to discharge or make reasonable
provision for the payment of claims and make distributions of assets to
shareholders after payment of or provision for claims.’’
3
This claim was also brought against William R. Morande. The court found
that there was no evidence presented at trial that William R. Morande
was a director of the corporation and concluded that the claim failed as
against him.
4
Morande Brothers, Inc., and William R. Morande also asserted the statu-
tory bar as a special defense.
5
We note that our statutory scheme is consistent with common law and
the common practice in the various states. At common law, directors were
considered to be the trustees of corporate assets after dissolution, whose
duties included the distribution of assets to shareholders only after creditors
had been provided for, and directors were potentially liable in tort for
breaches of their duty. See generally 19 Am. Jur. 2d 514–15, 535-36, Corpora-
tions §§ 2419, 2445 (2004).
6
The court quite clearly was referring to § 33-887b (a), which allows
liability. Section 33-887b (b) creates an exception to, or a clarification of,
that liability.
7
Furthermore, in an affidavit accompanying the motion to transfer the
matter from the small claims court to the Superior Court, the defendant
stated: ‘‘I am personally knowledgeable about the facts stated herein since
I have been personally involved in the matters sworn to herein.’’
8
We note that § 33-887b (a) imposes a duty of discharging or making
‘‘reasonable’’ provision for payment of claims. The statute creates a statutory
cause of action for violation of the duty, but it is not, strictly speaking, an
action for indemnity.
9
Section 52-251a was intended to avoid situations in which a relatively
small and straightforward case is transferred from the small claims docket
to the regular docket to become a ‘‘pitched legal battle . . . . [Section] 52-
251a thus creates a substantial and effective disincentive for a defendant
who might otherwise raise defenses bordering on the frivolous in an effort
to gain a tactical advantage over a plaintiff by obtaining a transfer of a case
from the Small Claims division . . . .’’ (Citaitons omitted; internal quotation
marks omitted.) Rana v. Terdjanian, 136 Conn. App. 99, 117, 46 A.3d 175,
cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).
10
The court granted the motion in August, 2012.
11
We acknowledge the plaintiff’s claim that the defendant has not cross
appealed and thus has not properly presented the claim regarding liability
for attorney’s fees and costs.
12
We note that the award of such fees and costs are discretionary in any
event. See Krack v. Action Motors Corp., 87 Conn. App. 687, 694, 867 A.2d
86, cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005).