Papallo v. Lefebvre , 172 Conn. App. 746 ( 2017 )

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SHIRLEY PAPALLO ET AL. v. RONALD D. LEFEBVRE
(AC 38538)
Alvord, Keller and Gruendel, Js.
Argued December 6, 2016—officially released April 25, 2017*
(Appeal from Superior Court, judicial district of
Litchfield, Shah, J.)
Charles F. Brower, for the appellants (plaintiffs).
Opinion
KELLER, J. The named plaintiff, Shirley Papallo
(plaintiff), held a 50 percent membership interest in Big
Dog Entertainment, LLC (LLC). The LLC is the other
plaintiff in this matter. The defendant, Ronald D. Lefeb-
vre, held the other 50 percent membership interest. The
LLC was in the sole business of operating a bar—Central
Cafe—in Plainville. During the relevant time period,
the defendant managed the bar, while the plaintiff had
limited involvement in its operations. In 2013, the plain-
tiff and the LLC (collectively plaintiffs) brought suit
against the defendant alleging breach of fiduciary duty
to the plaintiff, statutory theft on behalf of the LLC, and
violations of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., on behalf
of both plaintiffs. The plaintiffs also sought an account-
ing from the defendant. See, e.g., Zuch v. Connecticut
Bank & Trust Co., 5 Conn. App. 457, 460–63, 500 A.2d
565 (1985). These counts all stemmed from the defen-
dant’s alleged misappropriation and misuse of LLC
assets. Specifically, the plaintiffs alleged that the defen-
dant misappropriated LLC revenues and also partici-
pated in a ‘‘barter exchange’’ program through which
the defendant traded food and drinks from the bar for
services rendered by other participants in the barter
program for his own benefit or otherwise to the exclu-
sion of the LLC. After a trial to the court in which the
plaintiffs were represented by counsel and the defen-
dant represented himself, the court concluded that the
defendant breached his fiduciary duty to the plaintiff
by misusing the barter agreement, but determined that
the defendant did not breach that duty through his
handling of the LLC revenues. Accordingly, the court
rendered judgment for the plaintiff on the breach of
fiduciary duty count, but awarded compensatory dam-
ages only for the defendant’s misuse of the barter
agreement. The court determined that those damages
amounted to $10,191.25. The court rendered judgment
in favor of the defendant on the remaining counts.
On appeal, the plaintiffs claim that the court erred
by concluding that (1) the defendant did not breach his
fiduciary duty to the plaintiff through his handling of
the LLC revenues; (2) the defendant did not have the
intent necessary to be found liable for statutory theft;
(3) an accounting was not warranted; and (4) the defen-
dant’s conduct did not violate CUTPA. The defendant
did not participate in this appeal. We agree with the
first claim but disagree with the remaining ones.
Accordingly, we affirm in part and reverse in part the
judgment of the court.
The following facts, as found by the court, provide
additional background to the underlying dispute. ‘‘The
plaintiff and the defendant met when they both worked
for Associated Spring. They were colleagues and friends
at the time they started discussing the purchase of a bar
that they planned to jointly own and operate. Around
August of 2005, the defendant located a potential prop-
erty that they both decided to purchase. Due to the
defendant’s recent bankruptcy filing, the parties were
in a poor position to secure a business loan on behalf
of the LLC. The plaintiff obtained a home equity loan
in the amount of $150,000 in order to purchase the
property. The parties planned for the defendant to leave
his $70,000 salaried position at Associated Spring to
run the bar, since the plaintiff had secured financing.
She would join the defendant in running the business
once she retired from Associated Spring. The parties
formed the LLC as 50 percent members in December
of 2005, for the purpose of operating the business. They
purchased Central Cafe in May of 2006.
‘‘The defendant operated the business solely until
February of 2010. The plaintiff was still employed at
Associated Spring and did not retire until July 1, 2009.
During the time that the defendant managed the busi-
ness, the plaintiff would occasionally come to the bar
to help clean after closing. She was busy working and
caring for sick family members. She had limited time
to participate actively in the day-to-day management of
the business and left it all to the defendant. The plain-
tiff’s health also interfered with her full involvement
with the bar even once she began regularly working at
the bar in 2010.
‘‘During the three years when the defendant solely
operated the business, since the business was just start-
ing out, he took care of everything that the business
needed, including cleaning, tending to customers, clos-
ing the bar each night, balancing the register, handling
the business records of the bar, and various other activi-
ties. The defendant had no experience with running
a business.
‘‘When the plaintiff began working regularly at the
bar in February of 2010, she started helping with clean-
ing and learning how to run the banquets that the bar
would host. She also started balancing the cash register
at the end of each night. As she began running more
of the bar, she noticed certain practices of the bar that
she found questionable. She noticed that employees
were paid a certain amount of wages in cash and that
the cash register balances she determined at the end
of each night did not match up with amounts that the
defendant reported. The plaintiff also noticed that cer-
tain customers were not paying for their orders but
running tabs. The defendant explained that Central Cafe
was part of a barter exchange with other businesses
so that the bar would allow patrons in the barter
exchange to trade services they provided for food and
drinks at the bar. The plaintiff never saw the barter
exchange agreement or any records related to the
agreement. The defendant admittedly used some of the
services through the barter exchange for his own per-
sonal use and benefit.
‘‘By that time, the defendant had hired an accountant,
[Guy] Giantonio, to handle the business tax filings for
the bar. When the plaintiff learned of certain record
keeping practices of the bar, she decided to set up a
meeting with her personal accountant, Diane Libby
. . . Giantonio, and the defendant in August of 2010.
In reviewing the financials of the bar, Libby said that
the expenses were at least five to ten percent higher
than industry benchmarks and that the income was
underreported. In particular, she expressed concern
over the adjustments that were done without any docu-
mentation, which was exceptional based on standard
accounting practices.
‘‘Within months of that meeting, the relationship
between the parties deteriorated. At some point in 2011,
the plaintiff asked if there were any profits and the
defendant still indicated that there were not sufficient
profits to generate equal salaries for the both of them.
The plaintiff was increasingly concerned, but did not
ask for specific documentation from the defendant. In
2012, she started to log the amount she counted in the
register each night and compared that number to the
amount noted by the defendant the following morning.
The defendant was aware of the plaintiff tracking these
amounts and raised the matter with her several months
later. The defendant admitted that he kept cash in a
drawer in the bar’s office to pay for daily expenses and
some employee wages. The defendant offered to buy
out the plaintiff’s interest in the bar so he could continue
to run it, but the plaintiff believed he was simply trying
to push her out so he could continue to run the business
without concern for the issues she raised regarding his
questionable business practices.
‘‘The plaintiff filed this action when the defendant
prevented her from entering the bar in June of 2013. The
defendant subsequently transferred all of his interest in
the limited liability corporation to the plaintiff in August
of 2013. The plaintiff is now the sole member of the
LLC and the sole owner of Central Cafe.’’ Additional
facts will be provided as necessary.
I
The plaintiff first claims that the court erred by con-
cluding that the defendant did not breach his fiduciary
duty to her through his handling of the LLC revenues.
Specifically, the plaintiff argues that, although the court
correctly allocated the burden of proof to the defendant
with respect to her allegation that he misused the barter
agreement, the court misallocated the burden of proof
with respect to the plaintiff’s allegation that the defen-
dant misappropriated LLC revenues. We agree with
the plaintiff.
In rendering judgment on the breach of fiduciary duty
count, the court first observed that ‘‘[o]nce a fiduciary
duty is found to exist, the burden of proving fair dealing
shifts to the fiduciary and must be established by clear
and convincing evidence.’’ The court then concluded
as follows: ‘‘The plaintiff trusted the defendant with the
operation of their business and relied upon him to run
it legally. The parties were equal members of the limited
liability corporation, but the defendant had sole control
over the operation of the business for the first three
years. The plaintiff did fairly have an expectation that
the defendant would operate the business legally and
the defendant breached this trust by operating the busi-
ness in the manner that he did and continuing to do so
once the plaintiff actively participated in the operation
and raised her concerns over certain business practices
to the defendant. By using an asset of the business,
specifically the barter agreement to pay for home heat-
ing and dental bills, the defendant clearly misused a
business asset for his personal benefit at the expense
of the other [member] and breached the trust that he
had as the managing member of the bar. The court finds
that the plaintiff has met her burden of establishing a
breach of fiduciary duty1 by the defendant by his use
of the barter exchange agreement and awards damages
based on the misuse of this asset.2 The plaintiff pre-
sented other evidence of damages but the court does
not find that the plaintiff met her burden of proof with
respect to those claims. The defendant has failed to
establish fair dealing by clear and convincing evidence.
Therefore, the court finds for the plaintiff and against
the defendant on count one, alleging a breach of fidu-
ciary duty.’’
The plaintiff asserts that the court, in determining
that ‘‘[t]he plaintiff presented other evidence of dam-
ages but [that] . . . the plaintiff [did not meet] her bur-
den of proof with respect to those claims,’’ improperly
imposed on her the burden of proving that the defendant
breached his fiduciary duty to the plaintiff with respect
to his handling of the LLC revenues. The plaintiff argues
that once she established that the defendant owed a
fiduciary duty to her, the court should have allocated
the burden of proving fair dealing to the defendant. See,
e.g., Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d
1181 (1998).
We observe the following legal principles governing
breach of fiduciary duty actions. ‘‘Once a [fiduciary]
relationship is found to exist, the burden of proving
fair dealing properly shifts to the fiduciary. . . . Fur-
thermore, the standard of proof for establishing fair
dealing is not the ordinary standard of fair preponder-
ance of the evidence, but requires proof either by clear
and convincing evidence, clear and satisfactory evi-
dence or clear, convincing and unequivocal evidence.
. . . Proof of a fiduciary relationship, therefore, gener-
ally imposes a twofold burden on the fiduciary. First,
the burden of proof shifts to the fiduciary; and second,
the standard of proof is clear and convincing evidence.’’
(Citation omitted; internal quotation marks omitted.)
Id. ‘‘Such burden shifting occurs in cases involving
claims of fraud, self-dealing or conflict of interest.’’
(Internal quotation marks omitted.) Heaven v. Timber
Hill, LLC, 96 Conn. App. 294, 303, 900 A.2d 560 (2006).
Our Supreme Court has applied the preceding burden
shifting framework to partnership disputes involving
breach of fiduciary duty allegations, which we view as
analogous to the limited liability company context. See
Oakhill Associates v. D’Amato, 228 Conn. 723, 726–27,
638 A.2d 31 (1994) (burden of proving fair dealing by
clear and convincing evidence properly shifted to part-
ner against whom allegation of self-dealing was made);
Konover Development Corp. v. Zeller, 228 Conn. 206,
229–30, 635 A.2d 798 (1994) (burden of proving fair
dealing properly shifts to fiduciary once fiduciary rela-
tionship is found to exist); see also Martinelli v. Bridge-
port Roman Catholic Diocesan Corp., 196 F.3d 409, 421
(2d Cir. 1999) (‘‘To be sure, where the fiduciary has
not received some kind of benefit that would engender
suspicion and there is no other evidence of wrongdoing,
the burden of proof remains on the plaintiff. . . . But
Connecticut law routinely shifts the burden of proof,
irrespective of circumstances, where a fiduciary
appears to have obtained a benefit at the expense of a
person to whom it owes a fiduciary duty.’’ [Citation
omitted.]).
We must now determine whether the court erred
in applying the foregoing burden shifting framework.
‘‘When a party contests the burden of proof applied by
the court, the standard of review is de novo because
the matter is a question of law.’’ (Internal quotation
marks omitted.) Rollar Construction & Demolition,
Inc. v. Granite Rock Associates, LLC, 94 Conn. App.
125, 133, 891 A.2d 133 (2006). As previously stated, for
purposes of this appeal, we assume, without deciding,
that the plaintiff and the defendant owed fiduciary
duties to one another by virtue of their membership
interests in the LLC. See footnote 1 of this opinion.
The plaintiff alleged in the operative complaint that the
defendant misappropriated LLC revenues and engaged
in fraudulent conduct by inaccurately reporting those
revenues and expenses. The plaintiff then produced
evidence, in the form of tax and accounting documents,
as well as testimony from the plaintiff’s accountant,
appearing to support those allegations.3 See part II of
this opinion. There was also evidence adduced at trial
suggesting that the defendant exerted control over
those revenues and the accounting thereof. See 37 Am.
Jur. 2d 487, Fraud and Deceit § 461 (2013) (‘‘rule that
fraud is not presumed . . . is relaxed or qualified in a
case where a fiduciary or confidential relationship
exists between the parties and where one has a domi-
nant and controlling force or influence over the other’’
[footnote omitted]). The burden of proof with respect
to the LLC revenues therefore properly shifted to the
defendant to prove fair dealing by clear and convincing
evidence. The court erred by placing the burden of
proof on the plaintiff with respect to her allegation that
the defendant breached his fiduciary duty by misappro-
priating LLC revenues.
This does not end our inquiry, however, because
‘‘[g]enerally, a trial court’s ruling will result in a new
trial only if the ruling was both wrong and harmful.’’
(Emphasis in original; internal quotation marks omit-
ted.) Wiseman v. Armstrong, 295 Conn. 94, 106, 989
A.2d 1027 (2010).
On the basis of our review of the court’s decision,
we are not persuaded that the court would have reached
the same decision had it applied the burden of proof
correctly. The court’s error was simply of such a funda-
mental nature that the only proper remedy is to reverse
the judgment in part and remand the case for a new
trial on the issue of whether the defendant breached
his fiduciary duty to the plaintiff through his handling
of the LLC’s revenues.
II
Next, the LLC claims that the court erred by conclud-
ing that the defendant did not have the intent necessary
to be found liable for statutory theft. We disagree.
‘‘Statutory theft under [General Statutes] § 52-564 is
synonymous with larceny under General Statutes § 53a-
119. . . . Pursuant to § 53a-119, [a] person commits
larceny when, with intent to deprive another of property
or to appropriate the same to himself or a third person,
he wrongfully takes, obtains or [withholds] such prop-
erty from an owner. . . . Conversion can be distin-
guished from statutory theft as established by § 53a-
119 in two ways. First, statutory theft requires an intent
to deprive another of his property; second, conversion
requires the owner to be harmed by a defendant’s con-
duct. Therefore, statutory theft requires a plaintiff to
prove the additional element of intent over and above
what he or she must demonstrate to prove conversion.’’
(Internal quotation marks omitted.) Deming v. Nation-
wide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d
623 (2006).
The court concluded as follows with regard to the
statutory theft count: ‘‘The court finds the evidence
presented by the plaintiffs is not sufficient to prove that
the defendant had the requisite intent to deprive the
LLC of its assets for his own personal appropriation and
benefit. The defendant and the plaintiff were partners in
a business with the plaintiff leaving almost all of the
responsibility for the daily operations of the bar to the
defendant. There was no evidence of a written operating
agreement, only evidence of a contradictory verbal
understanding between the parties. The defendant pre-
sented evidence that the understanding of the parties
was that he would first be provided a salary from any
profits, to the extent there were any, since he was the
only one actively involved in the business. The plaintiffs
claim that the parties’ intent was to share all profits
equally, but they do not allege a claim to any profits
from the period when the plaintiff was not actively
working at the bar. Although clearly improper, the cash
that the defendant took was not used for his own bene-
fit, but to pay the employees of the bar and other
expenses of the business. He also used the bar’s asset,
specifically the barter agreement, only when the bar
would lose the value of its exchange if it went unused.
‘‘The defendant admitted to his lack of business acu-
men and hired an accountant to ensure that the proper
business accounting was kept and taxes were filed. The
plaintiffs have not shown the requisite intent on the
part of the defendant, and the court finds that the plain-
tiffs have not sustained their burden of proof to estab-
lish statutory theft. Therefore, the court finds for the
defendant and against the LLC on count two, alleging
statutory theft.’’
‘‘[T]he question of intent is purely a question of fact.
. . . Intent may be, and usually is, inferred from the
defendant’s verbal or physical conduct. . . . Intent
may also be inferred from the surrounding circum-
stances. . . . The use of inferences based on circum-
stantial evidence is necessary because direct evidence
of the [defendant’s] state of mind is rarely available.’’
(Internal quotation marks omitted.) Fernwood Realty,
LLC v. AeroCision, LLC, 166 Conn. App. 345, 359, 141
A.3d 965, cert. denied, 323 Conn. 912, 149 A.3d 981(2016). ‘‘[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.) Id.,
356. ‘‘A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed
. . . .’’ (Internal quotation marks omitted.) Id., 369.
The court’s finding that the defendant lacked the
intent to commit theft under § 52-564 is not clearly
erroneous. There was evidence presented at trial tend-
ing to show that, although the defendant had perhaps
been sloppy in documenting the LLC’s financials, he
did not intend to deprive the LLC of its revenues for
his personal benefit. The defendant was inexperienced
in running a bar, a deficiency undoubtedly compounded
by the fact that he bore the largely undivided responsi-
bility of managing it.4 In 2010, he hired an accountant to
assist with the LLC’s accounting and tax filing. Further,
there was evidence that the defendant used the LLC’s
revenues to pay for the bar’s expenses, including
employee wages.5 This conduct does not amount to
theft.6
As a final matter with respect to the LLC’s revenues,
we address an argument repeatedly pressed by the
plaintiffs in their appellate brief. As previously men-
tioned, at trial, the plaintiff entered as exhibits certain
tax and accounting documents completed on behalf of
the LLC for the years 2010 to 2012. The LLC asserts
that those documents show, more or less conclusively,
that the defendant improperly took LLC revenues.
We disagree.
The record discloses the following evidence relevant
to this argument. Among the tax and accounting docu-
ments entered as exhibits was the LLC’s 2010 balance
sheet. Libby, the plaintiff’s accountant, testified at trial
that the balance sheet showed revenues of $782,000
and income of $51,000 for that year. The plaintiff then
entered as an exhibit the LLC’s 2010 state sales tax
returns. Libby testified that, in comparison to the figures
shown on the balance sheet, the sales tax returns
‘‘showed sales larger . . . by $46,426.’’ The plaintiff
also entered as an exhibit the LLC’s 2010 state and
federal income tax returns, which, Libby testified,
showed the same figures as on the balance sheet. Asked
by the plaintiffs’ attorney whether ‘‘the income reported
on the LLC tax return[s] is $46,426 less than the actual
sales . . . on the sales tax return?’’ Libby answered
‘‘correct.’’ After examining other accounting documents
for the LLC for the year 2010, which were admitted as
exhibits, Libby testified that there was ‘‘a total of
$122,435 of expenses that were taken on the return[s]
that were unsubstantiated.’’
The 2011 and 2012 tax and accounting documents
entered as exhibits showed similar patterns. According
to Libby, for 2011 there was a $185,142 difference
between the LLC’s revenues as reported on its balance
sheet versus its sales tax returns, as well as $137,142
in unsubstantiated expenses. Libby testified that for
2012 the LLC had unsubstantiated expenses of $153,879.
Libby further testified that ‘‘[b]ased on the [restau-
rant] industry standards . . . it appeared that the cost
of sales, the purchase of the liquor and the food . . .
[was] well above the typical benchmark for a restaurant.
. . . [T]ypically . . . a restaurant would have [30] to
[45] percent of their costs . . . this restaurant in those
years was about [50] percent on sales.’’ Asked by the
plaintiffs’ counsel, ‘‘[A]pplying that formula to the num-
bers representing the revenues for the [LLC], how much
of an increase in revenues would that indicate should
be applied to those figures?’’ Libby answered, ‘‘Conser-
vatively, could be [$75,000] to [$125,000] per year.’’
These documents, together with Libby’s testimony,
appear to suggest that the LLC underreported revenues
on certain accounting documents and tax returns, and
that at least some of the LLC’s expenses were unsub-
stantiated. We fail to see, however, how the documents
necessarily lead to the conclusion that the defendant
stole LLC revenues. The documents are equally consis-
tent with another plausible scenario: that the operating
agreement entitled the defendant to the LLC’s profits;
see footnote 6 of this opinion; and that he simply failed
to record some of the bar’s expenses. Accordingly, this
argument fails.
As to the defendant’s use of the barter program, the
court’s finding that the defendant’s use of that program
did not amount to statutory theft is not clearly errone-
ous. Again, the key question is whether the defendant
had the specific intent to steal the LLC’s property. See
Deming v. Nationwide Mutual Ins. Co., supra, 279
Conn. 771; see also D. Borden & L. Orland, 10 Connecti-
cut Practice Series: Criminal Law (2d Ed. 2007) § 53a-
119, p. 246 (‘‘[larceny] is a specific intent crime; the
state must prove that the defendant acted with the
subjective desire or knowledge that his actions consti-
tuted stealing’’). The defendant testified that participa-
tion in the barter program was intended, at least in part,
to attract new patrons to the bar. The defendant did
admit to using some value in the barter account to
provide dental services to one of the bar’s employees,
but said that it was to ‘‘use . . . up’’ the value in the
account. He also cast the provision of the dental ser-
vices as a way to boost employee morale: ‘‘[H]appy
employees make better employees. I tried to help her.’’
While evidently poor business judgment—as previously
mentioned, the court found that such conduct consti-
tuted a breach of fiduciary duty to the plaintiff—the
defendant’s use of the barter program in this manner
did not necessarily demonstrate a specific intent to
steal. See D. Borden & L. Orland, supra, § 53a-119, p.
246.
Finally, although the defendant did admit to using
the barter program to have heating oil delivered to his
house—a practice that, again, the court found consti-
tuted a breach of fiduciary duty, and which strikes us
as more problematic than the practice relating to the
dental services—we cannot conclude on the basis of
the record that it necessarily evidences a specific intent
to steal the LLC’s property. If, for instance, the defen-
dant merely took the oil in lieu of what would otherwise
be distributed to him as salary, then, on balance, he
did not deprive the LLC of its property. We are, there-
fore, not persuaded.
III
Both plaintiffs further claim that the court erred by
concluding that an accounting was not warranted.
We disagree.
‘‘An accounting is defined as an adjustment of the
accounts of the parties and a rendering of a judgment for
the balance ascertained to be due.’’ (Internal quotation
marks omitted.) Mankert v. Elmatco Products, Inc., 84
Conn. App. 456, 460, 854 A.2d 766, cert. denied, 271
Conn. 925, 859 A.2d 580 (2004). ‘‘In any judgment or
decree for an accounting, the court shall determine the
terms and principles upon which such accounting shall
be had.’’ General Statutes § 52-401.
‘‘Courts of equity have original jurisdiction to state
and settle accounts, or to compel an accounting, where
a fiduciary relationship exists between the parties and
the defendant has a duty to render an account.’’ (Inter-
nal quotation marks omitted.) Mankert v. Elmatco
Products, Inc., supra, 84 Conn. App. 460. ‘‘In an equita-
ble proceeding, the trial court may examine all relevant
factors to ensure that complete justice is done . . . .
The determination of what equity requires in a particu-
lar case, the balancing of the equities, is [therefore] a
matter for the discretion of the trial court.’’ (Internal
quotation marks omitted.) Id., 459. ‘‘An accounting is
not available in an action where the amount due is
readily ascertainable.’’ (Internal quotation marks omit-
ted.) Id., 460.
Both the plaintiff in her individual capacity and the
LLC sought to compel the accounting. The court con-
cluded, on the basis of Internet Airport Parking, LLC
v. Parking Access, LLC, Superior Court, judicial district
of Hartford, Docket No. CV-13-6044395-S (December 5,
2013) (57 Conn. L. Rptr. 265), that the plaintiff did not
have standing in her individual capacity to compel an
accounting because she had not ‘‘suffered any injury
distinct from the one suffered by the LLC.’’ The plaintiff
does not appear to challenge this conclusion on appeal,
nor, even if she did, is the issue adequately briefed.
Accordingly, we do not review the merits of the court’s
determination that the plaintiff lacked standing in her
individual capacity to compel an accounting. See State
v. Henderson, 47 Conn. App. 542, 558–59, 706 A.2d 480,
cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).
As to the LLC’s request that the defendant account
for the allegedly misappropriated revenues, the court
concluded: ‘‘[T]he plaintiffs have not provided sufficient
evidence on behalf of the LLC for the court to order
an accounting of Central Cafe’s business and financial
records for the period from 2010 through 2012. The
plaintiffs only had one meeting with their accountant
and never asked for documentation from the defendant
though they raised questions about operations, and the
plaintiff was fully aware of and engaged in some of the
complained of practices, specifically the payment of
employees in cash.’’ As to the defendant’s use of the
barter program, the court concluded: ‘‘[T]he plaintiff
obtained the records related to the agreement and the
loss was ascertainable.’’
The LLC’s claim consists of little more than a conclu-
sory statement that the court’s decision declining to
order an accounting was an abuse of discretion. We
conclude that the court properly exercised its discre-
tion. ‘‘The right to accounting is not absolute, but should
be accorded only on equitable principles.’’ 1A C.J.S. 9,
Accounting § 7 (2005). ‘‘While certain circumstances
must be present, there is no guideline for determining
when an accounting is warranted, and the court will
consider the particular circumstances of each case.’’
(Footnotes omitted.) Id., § 6, p. 8. The court evidently
believed that the plaintiff had not shown a genuine need
for an accounting based on her implicit acquiescence
to the defendant’s conduct at the time. The record bears
this out. There was evidence presented at trial that the
plaintiff engaged in, or at least tolerated, some of the
very practices to which she objects. The plaintiff faults
the defendant for paying employees ‘‘off the books,’’
yet she testified to having done exactly the same. The
plaintiff stated: ‘‘I didn’t like it, but the employees, if
they didn’t get paid, they wouldn’t work there and we
would not have a business, and I was following [the
defendant’s] direction.’’ The plaintiff also objects to the
defendant’s admittedly slapdash method of managing
the LLC’s revenues and paying for expenses, yet she
appears to have been a participant in such methods,
testifying that ‘‘[the defendant] gave [her] cash out of
[the box in which the revenues were stored] to purchase
food and stuff for banquets and for parties at the bar
. . . .’’ Further, the plaintiff did not demand documen-
tation from the defendant relating to the LLC’s finan-
cials until, at the earliest, 2010—nearly four years after
the purchase of the bar. As for the bartering agreement,
the plaintiffs had records pertaining to the defendant’s
use of it, and therefore any loss was ascertainable. See
Mankert v. Elmatco Products, Inc., supra, 84 Conn.
App. 460.
The LLC nevertheless asserts that an accounting
should be ordered on the basis of ‘‘[General Statutes
§] 34-144 (e), [which] requires the defendant to hold as
trustee ‘any profit or benefit’ obtained by him as man-
ager of the LLC property.’’ Section 34-144 (e), however,
says no such thing. Instead, it is General Statutes § 34-
141 (e) that provides in part: ‘‘Unless otherwise pro-
vided in writing in the articles of organization or the
operating agreement, every member and manager must
account to the limited liability company and hold as
trustee for it any profit or benefit derived by that person
. . . .’’ The court did not address the applicability of
this particular provision to the facts of this case, most
likely because the plaintiffs’ complaint never cites § 34-
141 (e).7 It is not the trial court’s responsibility to search
the General Statutes for theories upon which a litigant
may obtain relief but which the litigant does not ade-
quately identify. Nor are we required to address the
merits of an argument that was not properly raised
before or addressed by the trial court. See Jahn v. Board
of Education, 152 Conn. App. 652, 665, 99 A.3d 1230(2014). We therefore decline to review the merits of
this particular argument.
IV
Finally, the plaintiffs claim that the court erred by
concluding that the defendant’s conduct did not violate
CUTPA. We disagree.
General Statutes § 42-110b (a) provides: ‘‘No 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 [F]ederal [T]rade [C]ommission 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 estab-
lished by statutes, the common law, or otherwise . . .
(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.) Naples v. Keystone Building & Devel-
opment Corp., 295 Conn. 214, 227, 990 A.2d 326 (2010).
In concluding that the defendant’s conduct did not
violate CUTPA, the court reasoned: ‘‘The plaintiffs have
presented evidence of negligence, poor judgment, and
inexperience. The plaintiffs rely on the evidence pre-
sented to support their claim for breach of fiduciary
duty, but the evidence presented in this claim is not
sufficient to rise to the level of conduct prohibited under
CUTPA.’’ Although we also question whether the pre-
sent dispute is a mere ‘‘intracorporate conflict,’’ and
therefore not actionable under CUTPA; see Metcoff v.
Lebovics, 123 Conn. App. 512, 519, 2 A.3d 942 (2010);
the court’s stated rationale is sufficient basis for
affirmance.
‘‘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.’’ (Internal quotation marks omitted.) Ulbrich
v. Groth, 310 Conn. 375, 433–34, 78 A.3d 76 (2013).
Additionally, ‘‘[i]n the absence of aggravating unscrupu-
lous conduct, mere incompetence does not by itself
mandate a trial court to find a CUTPA violation.’’ Naples
v. Keystone Building & Development Corp., supra, 295
Conn. 229.
The court found that the defendant’s conduct was
merely negligent, and therefore did not rise to a viola-
tion of CUTPA. This finding is adequately supported by
the evidence adduced at trial. See part II of this opinion.
Accordingly, we reject this claim.
The judgment is reversed in part and the case is
remanded for a new trial with respect to the plaintiff’s
allegation in count one that the defendant breached his
fiduciary duty to her by allegedly misappropriating LLC
revenues. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
* April 25, 2017, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant has not participated in this appeal and, therefore, does
not challenge the court’s finding, not reproduced in this opinion, that a
fiduciary relationship existed between the plaintiff and the defendant by
virtue of their membership in the LLC. For purposes of this appeal, we
therefore assume, without deciding, that such relationship existed.
2
As previously mentioned, the court awarded the plaintiff damages of
$10,191.25 for misuse of the barter agreement. Those damages reflected
value in the bar’s barter account that the defendant used to have heating
oil delivered to his house and to provide one of the bar’s employees with
dental services.
3
We express no opinion as to whether the defendant’s conduct with
respect to the LLC’s revenues actually constituted fraud or a breach of
fiduciary duty.
4
The damages that the plaintiff recites in this claim appear to be limited
to those revenues that the defendant allegedly improperly took from 2010
to 2012. The evidence shows that, by 2010, the plaintiff had begun working
regularly at the bar, but from that time until 2012, it appears that the defen-
dant still shouldered the majority, if not all, of the managerial responsi-
bilities.
5
The fact that the defendant paid some employees ‘‘off the books’’ for a
period of time—a practice that, it should be noted, the plaintiff also engaged
in; see part III of this opinion—does not, in and of itself, constitute theft
of LLC revenues.
6
To the extent that the LLC claims that the defendant’s disposition of the
bar’s profits—that is, revenues less expenses—evidences an intent to steal,
we conclude that the plaintiff was unable to show that the defendant improp-
erly took those profits. As previously mentioned in the body of this opinion,
there was no written operating agreement for the LLC, only what appears
to be an oral one. See generally General Statutes § 34-101 (17) (operating
agreement can be written or oral). The plaintiff argued at trial that she
and the defendant agreed to split the profits evenly, while the defendant
maintained that the two agreed that he would take the profits, if any, as
his salary in exchange for managing the bar. The court did not explicitly
credit one party’s account over the other’s. Nevertheless, because the burden
of proving statutory theft belonged to the plaintiff, it was her responsibility
to show that the defendant took profits properly belonging to her. In light
of all of the evidence, the court reasonably could have concluded that she
failed to make such showing.
General Statutes § 34-152, which provides in part that profits ‘‘shall be
allocated on the basis of the value of the contributions made by each
member,’’ does not alter our conclusion. Such allocation pursuant to § 34-
152 occurs only when the operating agreement is silent as to the division
of profits. By contrast, in this case, there was evidence of an oral operating
agreement whose terms allocated the profits in a certain way. The parties
simply dispute what those terms were.
7
Although the plaintiffs, in their complaint, recite a portion of the language
of General Statutes § 34-141 (e), they incorrectly cite it as General Statutes
§ 34-142 (c). General Statutes § 34-142 (c) does not exist, and § 34-142 has
no relevance to the duty of a member of a limited liability company to
account for or hold as trustee property of the limited liability company.