Fischer v. People's United Bank, N.A. ( 2022 )

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ALAN FISCHER ET AL. v. PEOPLE’S
UNITED BANK, N.A., ET AL.
(AC 44872)
Bright, C. J., and Prescott and Pellegrino, Js.
Syllabus
The plaintiffs, L Co., a mortgagor, F, its guarantor, and F Co., F’s real estate
company, sought to recover damages from the defendant bank and two
of its officers after the bank rescinded its offer to refinance L Co.’s
mortgage and L Co. defaulted on that mortgage. F commenced this
action on behalf of all three plaintiffs, filing a five count complaint.
Counts one through four were brought by all three plaintiffs and alleged
breach of contract, breach of the implied covenant of good faith and
fair dealing, violations of the Connecticut Unfair Trade Practices Act
(§ 42-110a et seq.), and tortious interference with business expectancies,
respectively. Count five was brought by F only and alleged negligent
infliction of emotional distress. The trial court granted the defendants’
motion to dismiss, dismissing for lack of standing all claims brought by
L Co. and the claims brought by F and F Co. that were set forth in the
first, second, and third counts of the complaint. On the plaintiffs’ appeal
to this court, held:
1. The portion of the appeal that pertained to the claims of F and F Co.
was dismissed because they did not appeal from a final judgment: the
trial court’s ruling with respect to F and F Co. was only a partial judgment
because it did not fully dispose of counts four and five of the complaint;
accordingly, this court did not have jurisdiction to review the appeal
with respect to their claims.
2. The trial court properly determined that L Co. lacked standing to bring
this action and, accordingly, the court properly dismissed the claims
brought by L Co. for a lack of jurisdiction: L Co. failed to meet its burden
to establish that F, acting alone on behalf of L Co.’s general partner, A
Co., was legally authorized to commence the action on behalf of L Co.,
as L Co.’s partnership agreement granted A Co., a member managed
limited liability company, full management and control over L Co., and,
although F was one of the three members of A Co., because the decision
to commence litigation on behalf of L Co. was not within the scope of
A Co.’s ordinary business and was a decision that affected the policy
and management of A Co., the authorization of A Co.’s other two mem-
bers was required to commence litigation, which was not forthcoming;
moreover, F’s management responsibilities in his role as property man-
ager of the mortgaged property and his statements asserting that he
was the sole member of A Co. to carry out operations on behalf of L
Co. did not undermine the clear and unambiguous language of L Co.’s
partnership agreement, which granted A Co. the exclusive right to bring
an action on L Co.’s behalf, or A Co.’s operating agreement, which
required the unanimous consent of A Co.’s members for decisions affect-
ing the policy and management of A Co. and those outside the scope
of A Co.’s ordinary business; furthermore, L Co.’s partnership agreement
and A Co.’s operating agreement prohibited A Co. from removing itself
from its role as L Co.’s general partner and from delegating to F its
exclusive control and management of L Co., and there was no support
in the record that any such delegation had occurred.
Argued September 6—officially released November 8, 2022
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Ansonia-Milford, where
the court, Pierson, J., granted the defendants’ motion
to dismiss and rendered judgment thereon, from which
the plaintiffs appealed to this court. Appeal dismissed
in part; affirmed.
Laurence V. Parnoff, Jr., and Laurence V. Parnoff,
Sr., filed a brief for the appellants (plaintiffs).
James T. Shearin, with whom were Dana M. Hrelic,
and, on the brief, Potoula Tournas, for the appellees
(defendants).
Opinion
PRESCOTT, J. This appeal arises out of an action
brought by the plaintiffs, Alan Fischer, Fischer Real
Estate, Inc., and 1730 State Street Limited Partnership
(1730 LP), against the defendants, People’s United
Bank, N.A. (People’s United), and two of its officers,
Kenneth Nuzzolo and Virgilio Lopez.1 The underlying
action was brought after People’s United, 1730 LP’s
mortgage lender, rescinded its offer to refinance a mort-
gage executed by 1730 LP in 2010 (2010 mortgage) on
real property located at 1730 Commerce Drive in Bridge-
port (property), following which 1730 LP defaulted on
the 2010 mortgage.
The plaintiffs appeal from the judgment of the trial
court granting the defendants’ motion to dismiss. The
trial court held that it lacked subject matter jurisdiction
over all counts of the operative five count complaint
brought by 1730 LP because 1730 LP was not legally
authorized to bring the underlying action, thereby
depriving it of standing. The court also held that Fischer
and Fischer Real Estate, Inc., lacked standing to bring
the first, second, and third counts of the complaint
because Fischer and Fischer Real Estate, Inc., did not
suffer a direct injury from the defendants’ actions
rescinding the mortgage commitment letter and, thus,
did not have standing to bring those counts.
The plaintiffs claim on appeal that the court improp-
erly held that 1730 LP lacked standing because, contrary
to the court’s determination, Fischer had authority
under the relevant corporate governance documents to
permit 1730 LP to commence the underlying action.
The plaintiffs also claim on appeal that Fischer and
Fischer Real Estate, Inc., had standing to bring counts
one, two, and three because Fischer and Fischer Real
Estate, Inc., suffered a direct injury from the defen-
dants’ actions separate from the injury suffered by 1730
LP. On appeal, prior to oral argument, this court ordered
the parties to file supplemental briefs addressing
whether Fischer and Fischer Real Estate, Inc., appealed
from a final judgment because two of the counts
brought by them were not disposed of in the trial court’s
judgment of dismissal and thereby remain pending in
the trial court.
We conclude that (1) the judgment dismissing some,
but not all, counts of the complaint brought by Fischer
and Fischer Real Estate, Inc., is not an appealable final
judgment, and (2) the court properly dismissed all
counts brought by 1730 LP for a lack of subject matter
jurisdiction because 1730 LP’s general partner did not
authorize the commencement of the action against the
defendants. Accordingly, we dismiss the appeal as it
pertains to Fischer and Fischer Real Estate, Inc., and
affirm the court’s judgment of dismissal as it relates to
the claims brought by 1730 LP.
The following facts, which are either undisputed or
are taken from the underlying complaint, and proce-
dural history are relevant to our resolution of the
appeal. Fischer is a licensed real estate broker who
owns and operates Fischer Real Estate, Inc., and is the
guarantor of the 2010 mortgage executed by 1730 LP
on the property.
As provided in 1730 LP’s partnership agreement, AJC
Management, LLC (AJC), a limited liability company,
is the general partner of 1730 LP and ‘‘ha[s] full, exclu-
sive and complete discretion’’ to manage and control
1730 LP. This includes the general partner’s right to
‘‘[c]ompromise, submit to arbitration, sue or defend any
and all claims for or against [1730 LP].’’ The agreement
further restricts AJC from removing itself, or being
removed, from its role as general partner. Fischer is
one of three members of AJC. The other members of
AJC are Jefferson Scinto and Christian Scinto.
Under AJC’s operating agreement, which controls the
rights and obligations of its members, ‘‘[a]ll decisions
affecting the policy and management of [AJC] shall be
made by unanimous consent of the Members.’’ The
operating agreement also limits the purpose and scope
of AJC’s business, stating in relevant part: ‘‘The business
. . . shall be limited to (i) the sale, acquisition, owner-
ship, development, operation, lease, investment and
management of real properties . . . . The business of
the Company shall not be extended by implication or
otherwise beyond the scope of this Agreement.’’
On behalf of AJC, Fischer has managed the property
owned by 1730 LP since 1998. Fischer’s duties on behalf
of AJC have included acting as the property’s sole prop-
erty manager and negotiating and securing mortgages
for the property.
On or about December, 2019, Fischer began negotiat-
ing with People’s United, through Lopez, to refinance
the 2010 mortgage loan on the property. As a result of
the negotiations, People’s United offered to refinance
the 2010 mortgage under new terms, which would
include lower interest rates, and to extend a new loan
for environmental remedial costs. People’s United con-
firmed these offers in a mortgage commitment letter
dated July 28, 2020. Thereafter, People’s United sent
Fischer a checklist of the documents it required in order
to formalize the new loan and refinance the 2010 mort-
gage.
The initial checklist of required documents included
the 1730 LP partnership agreement. After People’s
United received and reviewed the 1730 LP partnership
agreement, it requested that Fischer provide a resolu-
tion from AJC, 1730 LP’s general partner, that was
signed by all of AJC’s members and stated that AJC
authorized the loan and execution of the closing docu-
ments. Due to a dispute between the members of AJC,
People’s United never received a resolution that was
signed by all members of AJC.2 On August 24, 2020,
People’s United notified Fischer that the July 28, 2020
commitment letter was rescinded due to Fischer’s fail-
ure to obtain an acceptable resolution from AJC. As a
result of the unsuccessful refinancing of the property’s
loan, the 2010 mortgage was declared to be in default
on August 26, 2020.3
Following the default on the 2010 mortgage, the plain-
tiffs initiated the underlying action. The plaintiffs’ oper-
ative complaint alleged that, as a result of People’s
United having rescinded its refinancing offer, the plain-
tiffs suffered financial damages from 1730 LP’s resulting
mortgage default. The complaint contained five counts.
Counts one, two, three, and four were brought by all
three plaintiffs and alleged breach of contract, breach
of the implied covenant of good faith and fair dealing,
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., and tor-
tious interference with business expectancies. Count
five was brought by Fischer only and alleged negligent
infliction of emotional distress. Fischer commenced the
action on behalf of all three plaintiffs. The remaining
members of AJC, however, never authorized AJC to
bring an action on behalf of 1730 LP.
On January 19, 2021, the defendants filed a motion
to dismiss all counts of the complaint brought on behalf
of 1730 LP and counts one, two, and three in their
entirety. The defendants argued that the court did not
have subject matter jurisdiction over those counts
because the plaintiffs lacked standing. In support, the
defendants filed a memorandum of law with exhibits,
which included an affidavit from Christian Scinto. In
response, the plaintiffs filed an objection to the defen-
dants’ motion to dismiss, a memorandum of law in
opposition to the motion to dismiss with supporting
exhibits, and an affidavit from Fischer. Subsequently,
the defendants submitted a reply memorandum in sup-
port of their motion to dismiss. In addition to the affida-
vits from Christian Scinto and Fischer, the record
before the court included, in relevant part, copies of
the 1730 LP partnership agreement and AJC’s operating
agreement.
On August 3, 2021, the court issued a memorandum
of decision granting the defendants’ motion to dismiss
all counts brought by 1730 LP and counts one, two, and
three as to all plaintiffs. The court held that the factual
allegations of the complaint, supplemented by the
undisputed facts in the record, demonstrated that 1730
LP lacked standing to maintain the claims it brought
and that Fischer and Fischer Real Estate, Inc., lacked
standing with respect to the first, second, and third
counts of the complaint. The fourth and fifth counts of
the complaint were not attacked in the motion to dis-
miss or addressed by the court in its ruling.
With respect to 1730 LP’s standing to bring the action,
the court held that AJC, in its role as general partner,
had the sole authority to initiate an action by 1730 LP
and that AJC, acting through a single member, was not
legally authorized to commence the action against the
defendants. Specifically, the court noted that AJC’s
operating agreement required unanimous consent from
its members for an individual member to act outside
the ordinary course of business or to engage in actions
that affect the policy and management of AJC. The court
was not persuaded by Fischer’s argument that suing
the property owner’s mortgage lender was a common
action for real estate companies and, therefore, he had
authority to initiate the action as the property manager
and without the unanimous consent of AJC’s members.
Instead, the court relied on the operating agreement’s
language that limited the scope and purpose of AJC to
matters relating to the sale and management of real
property and concluded that Fischer’s filing of the
action against the defendants did not fall within the
ordinary course of business. The court also held that,
even though AJC’s operating agreement does not specif-
ically address a single member’s authority to commence
litigation on behalf of AJC, any ambiguity is resolved
by the Connecticut Uniform Limited Liability Company
Act (CULLCA), General Statutes § 34-243 et seq., which
provides that, at a minimum, the affirmative vote or
consent of a majority of a company’s members would
be required.4 It is undisputed that Fischer acted without
the consent or affirmative vote of AJC’s other two mem-
bers.5 The court concluded that Fischer acted alone in
bringing the action and that, individually, he lacked
authority to act on behalf of AJC to commence litigation
on behalf of 1730 LP, pursuant to both the controlling
agreements and CULLCA.
The court next addressed Fischer’s and Fischer Real
Estate, Inc.’s standing to maintain the first, second, and
third counts of the amended complaint. The court held
that Fischer and Fischer Real Estate, Inc., lacked stand-
ing to bring the first count that alleged a breach of the
mortgage refinance agreement. The court noted that,
regardless of Fischer’s status as a guarantor of the 2010
mortgage, Fischer and Fischer Real Estate, Inc., were
not parties to the 2010 mortgage and did not suffer any
injury unique from the injury allegedly suffered by 1730
LP. In regard to the second and third counts, which
asserted a breach of the covenant of good faith and fair
dealing and CUTPA violations, the court noted that both
counts relied on the first count’s breach of contract
claim and, because they did not suffer an injury unique
from the injury suffered by 1730 LP, Fischer and Fischer
Real Estate, Inc., lacked standing. The plaintiffs filed
the present appeal.
On August, 17, 2022, this court, sua sponte, ordered
the parties to file supplemental briefs ‘‘addressing
whether this appeal should be dismissed as to the plain-
tiffs [Fischer] and Fischer Real Estate, Inc., for a lack
of a final judgment because counts four and five of the
[operative complaint] . . . were not disposed of by the
August 3, 2021 judgment of dismissal and therefore
remain pending in the trial court.’’ Subsequently, the
parties filed supplemental briefs. The plaintiffs
acknowledged that ‘‘the judgment disposed of only the
part of the complaint dealing with all the claims of
[Fischer and Fischer Real Estate, Inc.]’’ but, nonethe-
less, argued that this court should review the trial
court’s judgment as it pertains to Fischer and Fischer
Real Estate, Inc., on its merits.6 In response, the defen-
dants argued that the appeal should be dismissed as to
Fischer and Fischer Real Estate, Inc., because there
was no final judgment as to those plaintiffs.
I
Because it implicates the jurisdiction of this court to
hear the appeal, we first consider whether the trial
court’s decision granting the motion to dismiss with
respect to Fischer and Fischer Real Estate, Inc., consti-
tutes a final judgment. See Woodbury Knoll, LLC v.
Shipman & Goodwin, LLP, 305 Conn. 750, 755, 48 A.3d
16 (2012) (addressing first issue of whether trial court’s
order is appealable final judgment because it implicates
court’s subject matter jurisdiction). We conclude that
because the court’s decision did not dispose of all
counts of the complaint with respect to Fischer and
Fischer Real Estate, Inc., those plaintiffs did not appeal
from a final judgment. Accordingly, we dismiss that
portion of the appeal that pertains to them.
We begin by setting forth the relevant legal principles.
‘‘Unless otherwise provided by law, the jurisdiction of
our appellate courts is restricted to appeals from final
judgments. . . . The appellate courts have a duty to
dismiss, even on [their] own initiative, any appeal that
[they lack] jurisdiction to hear. . . . Accordingly, a
final judgment issue is a threshold matter that must
always be resolved prior to addressing the merits of an
appeal. . . . Whether an appealable final judgment has
occurred is a question of law over which our review is
plenary. . . .
‘‘It is axiomatic that [a] judgment that disposes of
only a part of a complaint is not a final judgment. . . .
Accordingly, an appeal challenging an order issued dur-
ing the pendency of a civil action ordinarily must wait
until there has been a final disposition as to all counts
of the underlying complaint. Our rules of practice, how-
ever, set forth certain circumstances under which a
party may appeal from a judgment disposing of less
than all of the counts of a complaint. Thus, a party may
appeal if the partial judgment disposes of all causes of
action against a particular party or parties . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.)
Krausman v. Liberty Mutual Ins. Co., 195 Conn. App.
682, 687–88, 227 A.3d 91 (2020); see also Practice Book
§ 61-3 (‘‘[a] judgment disposing of only a part of a com-
plaint, counterclaim or cross complaint is a final judg-
ment if that judgment disposes of all causes of action
in that complaint, counterclaim or cross complaint
brought by or against a particular party or parties’’).
The complaint in the underlying action contains five
counts. Counts one, two, three, and four were brought
by all three of the plaintiffs. Count five was brought
only by Fischer. The trial court dismissed all counts
brought by 1730 LP and counts one, two, and three in
their entirety. The court’s ruling thus disposed of all
causes of action involving 1730 LP, rendering it a final
judgment under the rules set forth in Practice Book
§ 61-3. In contrast, the court’s ruling was only a partial
judgment with respect to Fischer and Fischer Real
Estate, Inc., because it did not fully dispose of counts
four and five. Because all causes of action brought by
Fischer and Fischer Real Estate, Inc., have not been
disposed of, there is no final judgment with respect to
those parties.7 This court is deprived of jurisdiction to
review this appeal with respect to the claims brought
by Fischer and Fischer Real Estate, Inc. Accordingly,
that portion of this appeal is dismissed.
II
We now turn to 1730 LP’s claim that the court improp-
erly granted the motion to dismiss on the basis that
1730 LP lacked standing to bring the action. Specifically,
1730 LP argues that ‘‘[t]he misinterpretation of the [AJC
operating agreement] and [the 1730 LP partnership
agreement]’’ led to an improper determination that 1730
LP lacked standing to bring this action. We are not
persuaded and agree with the trial court that 1730 LP
did not have standing because Fischer was not legally
authorized to commence the action on behalf of AJC
without the unanimous consent of AJC’s members.
Accordingly, we conclude that the court was deprived
of jurisdiction over all counts brought by 1730 LP and
that the court properly dismissed those counts as they
pertained to 1730 LP.
We begin our analysis by setting forth the applicable
standard of review. ‘‘A motion to dismiss . . . properly
attacks the jurisdiction of the court, essentially
asserting that the plaintiff cannot as a matter of law
and fact state a cause of action that should be heard
by the court. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the trial court’s ulti-
mate legal conclusion and resulting [determination] of
the motion to dismiss will be de novo. . . . Factual
findings underlying the court’s decision, however, will
not be disturbed unless they are clearly erroneous. . . .
The applicable standard of review for the denial of a
motion to dismiss, therefore, generally turns on whether
the appellant seeks to challenge the legal conclusions
of the trial court or its factual determinations.’’ (Citation
omitted; internal quotation marks omitted.) Hayes
Family Ltd. Partnership v. Glastonbury, 132 Conn.
App. 218, 221, 31 A.3d 429 (2011).
To the extent that we are called on to interpret the
partnership or operating agreements, our standard of
review is also well established. ‘‘Although ordinarily the
question of contract interpretation, being a question of
the parties’ intent, is a question of fact [subject to the
clearly erroneous standard of review] . . . [when]
there is definitive contract language, the determination
of what the parties intended by their . . . commit-
ments is a question of law [over which our review is
plenary] . . . and we must decide whether [the court’s]
conclusions are legally and logically correct and find
support in the facts that appear in the record.’’ (Citation
omitted; internal quotation marks omitted.) Alpha Beta
Capital Partners, L.P. v. Pursuit Investment Manage-
ment, LLC, 193 Conn. App. 381, 403, 219 A.3d 801 (2019),
cert. denied, 334 Conn. 911, 221 A.3d 446 (2020), and
cert. denied, 334 Conn. 911, 221 A.3d 446 (2020).
In the present case, 1730 LP challenges the court’s
interpretation of the relevant partnership and operating
agreements as it relates to the court’s ultimate conclu-
sion that Fischer lacked authority to commence litiga-
tion on behalf of AJC and, in turn, 1730 LP. Thus, our
review is plenary. See id. The following legal principles
are relevant to our resolution of this claim.
‘‘[L]ack of subject matter jurisdiction may be found
in any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts. . . . Different rules and procedures
will apply, depending on the state of the record at the
time the motion is filed. When a trial court decides a
jurisdictional question raised by a pretrial motion to
dismiss on the basis of the complaint alone, it must
consider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . In contrast, if the complaint is supple-
mented by undisputed facts established by affidavits
submitted in support of the motion to dismiss . . . [or]
other types of undisputed evidence . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings.’’ (Citations omitted; emphasis omitted; footnote
omitted; internal quotation marks omitted.) Conboy v.
State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).
‘‘As we also have held, [i]t is a basic principle of law
that a plaintiff must have standing for the court to have
jurisdiction. Standing is the legal right to set judicial
machinery in motion. One cannot rightfully invoke the
jurisdiction of the court unless he has . . . some real
interest in the cause of action, or a legal or equitable
right, title or interest in the subject matter of the contro-
versy. . . . The standing requirement is designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . To fulfill these goals, the
standing doctrine requires a plaintiff to demonstrate
two facts. First, the complaining party must be a proper
party to request adjudication of the issues. . . . Sec-
ond, the person or persons who prosecute the claim
on behalf of the complaining party must have authority
to represent the party. . . .
‘‘A complaining party ordinarily can show that it is
a proper party when it makes a colorable claim of [a]
direct injury [it] has suffered or is likely to suffer, in an
individual or representative capacity. Such a personal
stake in the outcome of the controversy . . . provides
the requisite assurance of concrete adverseness and
diligent advocacy. . . . To demonstrate authority to
sue, however, it is not enough for a party merely to
show a colorable claim to such authority. Rather, the
party whose authority is challenged has the burden of
convincing the court that the authority exists. . . . The
burden of proof for questions of authority is higher
than that for questions of propriety because the former
questions are more important. Lawsuits must be author-
ized not only to ensure that the litigants fairly and vigor-
ously represent the party’s views . . . but also
because, if unauthorized lawsuits were allowed to pro-
ceed, future rights of the named parties might be
severely impaired.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Community
Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn.
546, 552–54, 698 A.2d 245 (1997).
In the present case, it is not disputed that 1730 LP
is the proper party to request adjudication of the causes
of action alleged in the complaint. Therefore, the only
question before this court is whether Fischer, acting
alone on behalf of AJC, had authority to commence the
action by 1730 LP.
The defendants’ motion to dismiss was supplemented
by undisputed facts, and the plaintiffs supplied a count-
eraffidavit in opposition to the motion to dismiss. Thus,
the operative complaint, the undisputed facts that were
put forth as evidence in support of the defendants’
motion to dismiss, and Fischer’s counteraffidavit must
all be considered to determine whether a lack of juris-
diction has been conclusively established. See Conboy
v. State, supra, 292 Conn. 651–52. Because 1730 LP’s
authority to bring the action is challenged, it bears the
burden of establishing that authority exists. See Com-
munity Collaborative of Bridgeport, Inc. v. Ganim,
supra, 241 Conn. 554. The 1730 LP partnership agree-
ment and the AJC operating agreement conclusively
establish that 1730 LP lacked authority to commence
the action; Fischer’s counteraffidavit fails to undermine
this conclusion. We conclude that 1730 LP did not meet
its burden in establishing that Fischer, acting alone on
behalf of AJC, was legally authorized to commence
litigation against 1730 LP’s mortgage lender.
To resolve this claim, we first consider the operative
complaint. We need not conclusively presume the valid-
ity of the allegations in the complaint and, instead, must
consider them in light of the undisputed facts in the
record. See Conboy v. State, supra, 292 Conn. 651–52.
The operative complaint alleges that ‘‘AJC delegated its
management responsibility for the operation of AJC
and the property to [Fischer] pursuant to the agreement
between the members of AJC.’’ The complaint also
states that Fischer continually has managed operations
of 1730 LP’s property since 1998 as its sole property
manager. We next consider these allegations in light of
the undisputed facts in the record, particularly 1730 LP’s
partnership agreement and AJC’s operating agreement.
The 1730 LP partnership agreement sets forth who
has the rights and powers to control 1730 LP. See Gen-
eral Statutes § 34-9 (10) (general partner is ‘‘a person
who has been admitted to a limited partnership as a
general partner in accordance with the partnership
agreement’’); General Statutes § 34-10 (3) (partnership
agreement shall set forth name and address of each
general partner); see also General Statutes § 34-17 (a)
(‘‘[e]xcept as provided in this chapter or in the partner-
ship agreement, a general partner of a limited partner-
ship shall have all the rights and powers . . . of a part-
ner in a partnership’’). The partnership agreement
names AJC as its ‘‘[g]eneral [p]artner.’’ The partnership
agreement further grants AJC the ‘‘full, exclusive and
complete discretion in the management and control of
[1730 LP] . . . . Such discretion shall include, without
limitation, the right to . . . [c]ompromise, submit to
arbitration, sue or defend any and all claims for or
against [1730 LP].’’ More so, the agreement restricts AJC
from withdrawing from its position of general partner,
stating: ‘‘[AJC] may not voluntarily withdraw from [1730
LP]. The Limited Partners shall have no right to remove
[AJC].’’ According to the agreement, AJC is the proper,
and only, entity with the power to authorize the com-
mencement of an action by 1730 LP.
AJC is a limited liability company consisting of three
members: Fischer, Jefferson Scinto, and Christian
Scinto. Accordingly, we turn to AJC’s operating agree-
ment to determine whether an individual member may
act on behalf of AJC to commence this particular action.
See General Statutes § 34-243d (a) (1) (operating agree-
ment governs ‘‘[r]elations among the members as mem-
bers and between the members and the limited liability
company’’). The AJC operating agreement provides in
relevant part: ‘‘All decisions affecting the policy and
management of the Company shall be made by unani-
mous consent of the Members. No change shall be made
in the nature or scope of the Company business . . . .’’
It also provides in relevant part: ‘‘The Members may
delegate to . . . an individual Member . . . any man-
agement responsibility or authority except as set forth
in this Agreement to the contrary.’’ Though the agree-
ment does not define ‘‘decisions affecting the policy
and management,’’ it specifies a number of actions that
require unanimous consent of its members, stating that
a member shall not ‘‘borrow or lend money, make,
deliver, accept or endorse any commercial paper, exe-
cute any mortgage, security instrument, bond or lease,
or purchase or contract to purchase any property . . .
or sell or contract to sell any assets of the Company,
all other than in the ordinary course of the Company
business, nor shall any authorization be given to any
member or other Person to do any act on behalf of the
Company in contravention of this Agreement, without
the unanimous consent of the Members.’’ The agree-
ment also sets forth the purpose and scope of the com-
pany, stating in relevant part: ‘‘The business to be con-
ducted by the Company shall be limited to (i) the sale,
acquisition, ownership, development, operation, lease,
investment and management of real properties . . . .
The business of the Company shall not be extended
by implication or otherwise beyond the scope of this
Agreement.’’ Thus, the commencement of litigation on
behalf of 1730 LP against its mortgage lender is not an
act that is within the scope of AJC’s ordinary course
of business and is, instead, a decision that affects the
policy and management of AJC.
Finally, the affidavit of Christan Scinto also sets forth
undisputed facts. The affidavit states that neither he
nor Jefferson Scinto authorized or agreed to commence
the action on behalf of AJC or, in turn, 1730 LP.
We next turn to Fischer’s counteraffidavit to deter-
mine whether it effectively refuted the alleged lack of
authority found in the complaint and the undisputed
facts in the record. Fischer’s affidavit does not chal-
lenge the applicability of 1730 LP’s partnership agree-
ment or AJC’s operating agreement. It also does not
assert that the other members of AJC authorized the
action. Instead, the affidavit, sounding much like the
operative complaint, asserts that Fischer has been the
sole management authority for the property by unani-
mous agreement of AJC’s members and has also been
the sole member of AJC that has carried out operations
on behalf of 1730 LP. The affidavit also asserts that
People’s United has recognized Fischer as the sole
member of AJC authorized to act on behalf of AJC
for many years and that ‘‘[i]t is not uncommon in the
management of and investment in real estate for litiga-
tion to be a part of the business activities . . . most
commonly in, but not limited to, eviction and collection
actions.’’ These statements do not undermine the clear
and unambiguous language of the controlling 1730 LP
partnership agreement and AJC operating agreement.
The record conclusively establishes that 1730 LP’s
partnership agreement gave AJC, not Fischer, the exclu-
sive role of general partner. Fischer, acting alone and
purportedly on behalf of AJC, brought the action on
behalf of 1730 LP. The Scintos did not affirmatively
vote for or consent to the commencement of the action;
thus, Fischer would need to be authorized to act individ-
ually on behalf of AJC for the action to be legally author-
ized. As demonstrated by the language of AJC’s
operating agreement, Fischer’s management responsi-
bilities for AJC in his role as the property manager fall
within the scope and purpose of AJC and Fischer’s
authority is not disputed in this regard. In contrast,
bringing an action against 1730 LP’s mortgage lender
is outside the ordinary course of AJC’s business and is
a decision that affects the management and policy of
AJC. AJC’s operating agreement clearly requires that
such actions must be made with the unanimous consent
of all of AJC’s members.8
Viewing the operative complaint in light of the undis-
puted facts put forth by the defendants and Fischer’s
counteraffidavit, it is clear that 1730 LP has not met its
burden of proving that it had the requisite authority to
bring the underlying action. Unanimous consent from
AJC’s members was required. 1730 LP provided no evi-
dence that an action against 1730 LP’s mortgage lender
falls within AJC’s ordinary course of business or that
such an action would not affect AJC’s policy and man-
agement. Fischer’s mere assertion that litigation is not
uncommon in the management of real estate does not
effectively refute the language of the AJC operating
agreement or the 1730 LP partnership agreement or
speak to the unique litigation at issue. This assertion
alone thus fails to satisfy the burden of establishing
that Fischer had authority to bring this action. 1730
LP had the burden of establishing that its action was
brought with proper authority, and it failed to satisfy
this burden.
1730 LP makes two primary arguments on appeal.9
First, it argues that Fischer was delegated AJC’s man-
agement authority and that this delegation effectively
made him the ‘‘general partner’’ of 1730 LP. 1730 LP
further argues that the trial court had before it undis-
puted ‘‘party admissions’’ that delegated Fischer the
‘‘ ‘General Partner’ management responsibility and
authority . . . .’’ We do not find 1730 LP’s statement
to be an accurate representation of the record and are
not persuaded by its argument.
The ‘‘party admissions’’ that 1730 LP refers to are
the assertions in the complaint that ‘‘AJC delegated its
management responsibility for the operation of AJC
and the property . . . .’’ Nowhere in the complaint or
in Fischer’s affidavit does it state that Fischer was dele-
gated the role of 1730 LP’s ‘‘general partner.’’ Rather,
the language of the complaint and Fischer’s affidavit
support that Fischer was delegated responsibility to act
as property manager for the property on behalf of AJC.
The role of general partner carries legal significance
under 1730 LP’s partnership agreement and § 34-17 and
is not synonymous with the role of property manager.
Even assuming arguendo that Fischer was delegated
the role of general partner, 1730 LP’s partnership agree-
ment and AJC’s operating agreement clearly prohibit
such a delegation. 1730 LP’s partnership agreement
names AJC as the ‘‘[g]eneral [p]artner’’ and grants AJC
the exclusive right to bring an action by 1730 LP. Fur-
thermore, the agreement states that the general partner
may not voluntarily withdraw. If AJC did attempt to
delegate its role as general partner to Fischer, this dele-
gation would violate the agreement’s restriction on
AJC’s right to withdraw from its position as general
partner. See Connecticut National Bank v. Rehab Asso-
ciates, 300 Conn. 314, 322, 12 A.3d 995 (2011) (‘‘ ‘in
construing contracts, we give effect to all the language
included therein, as the law of contract interpretation
. . . militates against interpreting a contract in a way
that renders a provision superfluous’ ’’).
AJC’s operating agreement also prohibits the delega-
tion of AJC’s general partner authority over 1730 LP.
AJC’s operating agreement states that ‘‘[t]he Members
may delegate to . . . an individual Member . . . any
management responsibility or authority except as set
forth in this Agreement to the contrary.’’ (Emphasis
added.) A complete delegation of AJC’s authority to act
as the general partner of 1730 LP is precisely the type
of delegation prohibited by AJC’s operating agreement,
which requires the members’ unanimous consent for
actions outside the ordinary course of business and
actions affecting AJC’s policy and management.
1730 LP next argues that the trial court failed to
distinguish between 1730 LP’s partnership agreement
and AJC’s operating agreement and that this improperly
led the trial court to determine that 1730 LP lacked
standing. Specifically, 1730 LP argues that AJC’s
operating agreement is only relevant to the extent that
it allows AJC to delegate authority and that, because
AJC’s authority as general partner was delegated, the
court should have looked to the agreement that controls
1730 LP in determining what constituted proper author-
ity. This argument relies on the same logical foundation
of 1730 LP’s first argument—that AJC was divested
of its management authority because its authority as
general partner was delegated to Fischer. Thus, it fails
for the same reasons. Because of the language in both
the 1730 LP partnership agreement and the AJC
operating agreement, AJC could not delegate its exclu-
sive control and management of 1730 LP or remove
itself from its role as general partner. Furthermore,
there was no support in the record that such a delega-
tion was made. Accordingly, we affirm the trial court’s
motion to dismiss all counts brought by 1730 LP.
The appeal is dismissed as to the claims of Alan
Fischer and Fischer Real Estate, Inc., challenging the
dismissal of counts one, two, and three of the complaint;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
We refer in this opinion to Fischer, Fischer Real Estate, Inc., and 1730
LP collectively as the plaintiffs and to People’s United, Nuzzolo, and Lopez
collectively as the defendants. Where appropriate, we refer to the parties
individually by name.
2
Fischer proposed that the language of the resolution from AJC read:
‘‘The undersigned manager/members of [AJC], the General Partner of [1730
LP] (the ‘Borrower’), confirm that [Fischer] manager/member, pursuant to
an agreement of the undersigned members of [AJC], had, and continues to
have, full responsibility for the operation of [AJC] . . . .’’ Christian Scinto
and Jefferson Scinto refused to sign a resolution containing the language
proposed by Fischer and instead proposed different language: ‘‘The under-
signed members of [AJC], the General Partner of [1730 LP] (the ‘Borrower’),
confirm that [AJC], had, and continues to have, full responsibility for the
operation of the Borrower . . . .’’ Fischer refused to sign the resolution
with the language proposed by the Scintos. Thus, no resolution was signed
by all members of AJC due to a dispute over Fischer’s purported responsibil-
ity for the operation of AJC.
3
As a result of the default, People’s United notified Fischer that a height-
ened default rate would apply until the note was paid in full. Counsel for
People’s United sent a letter to Fischer, Christian Scinto, and Jefferson
Scinto on November 17, 2020, stating that the note had matured and payment
was past due and providing the outstanding balance of the note as of Novem-
ber 16, 2020.
4
AJC’s operating agreement provides in relevant part: ‘‘Except as
expressly provided for herein to the contrary, the rights and obligations of
the Members and the administration and termination of [AJC] shall be
governed by the Connecticut Limited Liability Company Act as the same
may be amended from time to time.’’ We note that AJC’s operating agreement
was executed in 1998; our legislature has since repealed the Connecticut
Limited Liability Company Act, effective July 1, 2017, and replaced it
with CULLCA.
CULLCA, specifically General Statutes § 34-255f (b), provides in relevant
part: ‘‘In a member-managed limited liability company . . . (2) Matters in
the ordinary course of the activities of the company shall be decided by
the affirmative vote or consent of a majority in interest of the members.
‘‘(3) The affirmative vote or consent of two-thirds in interest of the mem-
bers is required to: (A) Undertake an act outside the ordinary course of the
company’s activities and affairs . . . .’’
5
This fact was set forth in Christian Scinto’s affidavit and was not disputed
by Fischer.
6
The plaintiffs’ supplemental brief failed to properly identify any exception
that would allow the partial judgment to be considered a final judgment by
this court. Although the plaintiffs quote Heyward v. Judicial Dept., 159
Conn. App. 794, 801, 124 A.3d 920 (2015), which quotes Practice Book § 61-
4 (a), that rule of practice is not applicable to the present case. Practice
Book § 61-4 (a) requires the trial court to make a written determination
‘‘that the issues resolved by the judgment are of such significance to the
determination of the outcome of the case that the delay incident to the
appeal would be justified, and the chief justice or chief judge of the court
having appellate jurisdiction concurs. . . .’’ No such determination was
made in the present case.
7
We recognize that a court’s disposition of one count that is legally incon-
sistent or mutually exclusive of another count may be deemed to implicitly
dispose of the legally inconsistent count. See Clinton v. Aspinwall, 344
Conn. 696, 704, 281 A.3d 1174 (2022). On the other hand, if an undisposed
count is based on a legally consistent alternative theory, such an implicit
disposition cannot be presumed. Id., 705. In the present case, there is no
legal inconsistency between the plaintiffs’ first three counts, which are
allegations of breach of contract, breach of the covenant of good faith and
fair dealing, and CUTPA violations, and the fourth and fifth counts, which
are allegations of tortious interference with a business expectancy and
negligent infliction of emotional distress.
8
The trial court also considered the language of CULLCA to determine
whether AJC bringing an action on behalf of 1730 LP was made with proper
authority. AJC’s operating agreement provides in relevant part: ‘‘Except as
expressly provided for herein to the contrary, the rights and obligations of
the Members and the administration and termination of [AJC] shall be
governed by the Connecticut Limited Liability Company Act . . . .’’ CULLCA
provides in relevant part that ‘‘[t]he affirmative vote or consent of two-thirds
in interest of the members is required to: (A) Undertake an act outside the
ordinary course of the company’s activities and affairs . . . .’’ General Stat-
utes § 34-255f (b) (3). Thus, even if the AJC operating agreement did not
provide for the authority of a member to commence an action, Fischer alone
could not authorize this action on behalf of AJC regardless of whether the
action fell within or outside the ordinary course of business. On appeal,
however, neither party argues that 1730 LP’s partnership agreement and
AJC’s operating agreement are ambiguous as to the present issue. Thus, we
need not consider the language of CULLCA.
9
1730 LP also argues on appeal that the trial court improperly applied
the law and deprived it of its ‘‘due process and equal protection rights.’’
Specifically, 1730 LP argues that ‘‘[the court] failed to take the facts alleged
in the complaint, including facts necessarily implied therefrom and to con-
strue the allegations in the complaint in a manner most favorable to the
pleader as it is mandated . . . in deciding a motion to dismiss.’’ 1730 LP
incorrectly states the law under Conboy v. State, supra, 292 Conn. 651. As
previously stated in this opinion, the court is required to construe allegations
in the complaint in a manner most favorable to the pleader when the facts
in the complaint are not supplemented by undisputed facts on the record.
See id. In the present case, the complaint was supplemented by undisputed
facts that were brought before the trial court in support of the defendants’
motion to dismiss. Under these circumstances, the court ‘‘need not conclu-
sively presume the validity of the allegations of the complaint.’’ (Internal
quotation marks omitted.) Id., 652. Additionally, as discussed further in this
opinion, because 1730 LP’s authority to bring the action was challenged,
the burden was on 1730 LP to establish that it had authority to commence
the litigation. See Community Collaborative of Bridgeport, Inc. v. Ganim,
supra, 241 Conn. 554.