Seven Oaks Enterprises, L.P. v. DeVito , 185 Conn. App. 534 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
SEVEN OAKS ENTERPRISES, L.P., ET AL. v.
SHERRY DEVITO ET AL.
(AC 38325)
Lavine, Alvord and Beach, Js.
Syllabus
The plaintiffs, E Co., a limited partnership, and M Co., brought this action
for, inter alia, breach of contract against the defendant D in connection
with a promissory note and a management contract arising from the
purchase of a limited liability company, L Co., by D from E Co. Payment
for the purchase consisted of a certain sum in cash and the remaining
$1.325 million by a promissory note. D executed the note both as manager
of L Co. and individually. The purchase agreement was executed by D
individually and by E Co., and C, who was the president and managing
member of M Co., signed the purchase agreement on behalf of M Co.,
which in turn acted in its capacity of E Co.’s general partner. D and C
also personally executed a management contract, which was attached
to and expressly incorporated into the purchase agreement, and which
included provisions that C was not to be removed as comanager so long
as any debt was owed to E Co., and that C was to be compensated
for his services as comanager. D subsequently unilaterally executed
amendments to the operating agreement of L Co., which removed C as
comanager and provided no compensation to C. D did not pay any of
the $1.325 million owed on the note or anything to C for compensation
under the management contract, and the plaintiffs subsequently brought
claims for, inter alia, breach of contract regarding D’s failure to make
payments on the note, breach of the management contract and breach
of the implied covenant of good faith and fair dealing. Thereafter, E Co.
assigned to M Co. any and all claims, rights, and title to any and all
defaulted loans and damages related to the sale of L Co. During a trial
before a jury, the plaintiffs introduced a copy of the note into evidence,
rather than the original. The jury returned a verdict in favor of the
plaintiffs and awarded them $1.325 million in damages. The trial court
denied D’s motions to set aside the verdict and for judgment notwith-
standing the verdict, and rendered judgment in accordance with the
verdict, from which D appealed to this court. On appeal, D claimed,
inter alia, that the plaintiffs did not have the right to enforce the note
because M Co. could not satisfy the requirements of the statutory (§ 42a-
3-309) provision governing the enforcement of lost, destroyed, or stolen
instruments. Held:
1. The trial court erred in denying the motions to set aside the verdict and
for judgment notwithstanding the verdict as to the plaintiffs’ claim that
D breached the contract by failing to make payments on the note, as
the plaintiffs were not entitled to enforce the note at the time of trial:
a. E Co. lacked the ability to enforce the note after it assigned the
note to M Co. approximately one year after the present action was
commenced; although E Co., which was a party to both the note and
the purchase agreement, was clearly the only party entitled to enforce
the note at the time the present action was commenced and prior to
the transfer of the note, E Co.’s assignment of the note to M Co. extin-
guished all rights E Co. had to enforce the note.
b. M Co., which was neither a holder nor a nonholder in possession,
did not have the power to enforce the note because it could not satisfy
the requirements of § 42a-3-309, as it was not in possession of the note
when it was lost: the plain language of that statute compelled the conclu-
sion that the only person who can enforce a note is the person in
possession of that note when it was lost, the plaintiffs’ public policy
arguments were unavailing in light of the clear language of § 42a-3-309,
and the common law of assignments did not displace the clear provisions
of § 42a-3-309 because that statute was directly applicable to the situa-
tion underlying the present case and the legislature did not act to revise
that statute, which was clear and unambiguous; moreover, in the present
case, there was no evidence presented from which the jury reasonably
could have inferred that the note was lost while in M Co.’s possession,
and the jury found, instead, that the note was lost while in the possession
of E Co., which then assigned the note to M Co.
2. D could not prevail on her claim that the trial court abused its discretion
in denying her motion for judgment notwithstanding the verdict and in
refusing to set aside the verdict in favor of the plaintiffs as to their
claims of breach regarding the management contract, which was based
on her assertion that neither plaintiff had a right to enforce the manage-
ment contract: E Co. was the only party that could enforce the manage-
ment contract, which was signed by C only on the plaintiffs’ side and
was expressly incorporated into the purchase agreement, to which E
Co., but not M Co., was a party, as the note, which was part of the
overall purchase transaction, was issued to E Co. but not to M Co., and
the assignment, which was signed by C only, did not have the effect of
transferring to M Co. the ability to enforce the terms of the management
contract because the management contract stated that no assignment
could be effected without the prior written consent of D; moreover, D
having abandoned her claim in the trial court that there was insufficient
evidence to support the claims of damages regarding the management
contract, her claim on appeal that the alleged breaches did not cause
any loss to the plaintiffs was not reviewable, and because the jury found
in favor of the plaintiffs on more than one count but awarded only a total
amount of $1.325 million in undifferentiated damages, and no special
interrogatories were submitted showing which road the jury went down,
this court presumed that the jury found damages of $1.325 million,
whether based on breach of the note or breach of the management
contract, and the verdict had to stand.
Argued January 29—officially released October 23, 2018
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 Stamford-Norwalk,
where the named defendant filed a counterclaim; there-
after, the court, Hon. Taggart D. Adams, judge trial
referee, denied the motion to dismiss filed by the defen-
dant Robert DePaolo; subsequently, the court, Hon.
Taggart D. Adams, judge trial referee, denied the defen-
dants’ motion to reargue; thereafter, the action was
withdrawn as to the defendant Robert DePaolo; subse-
quently, the matter was tried to the jury before Lee,
J.; verdict for the plaintiffs on the complaint and the
counterclaim; thereafter, the court, Lee, J., denied the
named defendant’s motions to set aside the verdict and
for judgment notwithstanding the verdict, and rendered
judgment in accordance with the verdict, from which
the named defendant appealed to this court. Reversed
in part; judgment directed.
Ridgely Whitmore Brown, with whom, on the brief,
was Benjamin Gershberg, for the appellant (named
defendant).
Ryan O’Neill, with whom, on the brief, was Mark
Sherman, for the appellees (plaintiffs).
Opinion
BEACH, J. The defendant Sherri DeVito1 appeals from
the judgment of the trial court rendered, after a jury
trial, in favor of the plaintiffs, Seven Oaks Enterprises,
L.P. (SOE), and Seven Oaks Management Corporation
(SOM), on two counts alleging breach of contract and
one count alleging breach of the implied covenant of
good faith and fair dealing. The jury awarded $1.325
million in damages to the plaintiffs. On appeal, the
defendant claims that the trial court (1) abused its dis-
cretion in denying the defendant’s motion to set aside
the verdict and her motion for judgment notwithstand-
ing the verdict because the plaintiffs did not produce
the original note at trial, there was insufficient evidence
that the note was lost, and the plaintiffs did not have
the right to enforce the note; (2) incorrectly instructed
the jury regarding SOM’s right to enforce the note; (3)
lacked subject matter jurisdiction over SOE because it
did not have the legal capacity to commence and con-
tinue the action; and (4) abused its discretion in denying
her motion for judgment notwithstanding the verdict
and in refusing to set aside the verdict because neither
plaintiff had a right to enforce the management con-
tract, the alleged breaches did not cause any loss to
the plaintiffs, and the jury could not determine with
reasonable certainty the amount of damages sustained.
We affirm the judgment as to SOE’s claim regarding
breach of the management contract and reverse as to
SOE’s claim of breach of contract regarding the note
and all of SOM’s claims.
The following facts, which the jury reasonably could
have found or are undisputed, and procedural history
are pertinent to our decision. This dispute concerns
a note and a management contract arising from the
purchase of a limited liability company by the defen-
dant. Prior to the events in issue, Murray Chodos had
purchased a residential property located at 516 Round
Hill Road, Greenwich, in 1999. A limited liability com-
pany, 516, LLC, had been created to own the property,
and SOE was the sole owner of 516, LLC.
SOM was the general partner of SOE and Chodos
was the president and managing member of SOM.
Chodos met the defendant and her husband in late 2005
or early 2006. Chodos helped the defendant and her
husband obtain life insurance policies and referred the
defendant to an attorney, who could draft trusts for
their children. In October, 2006, Chodos agreed to sell
516, LLC, to the defendant. The defendant purchased
516, LLC, from SOE for $4 million. Payment consisted of
$2.675 million in cash by wire transfer and the remaining
$1.325 million by a promissory note (note), which listed
property located at 516 Round Hill Road as collateral.
The purchase agreement was executed by the defendant
individually and by SOE. Chodos signed the purchase
agreement on behalf of SOM, which in turn acted in its
capacity as SOE’s general partner. On the defendant’s
side, the note was executed by the defendant both as
manager of 516, LLC, and individually.
In addition, the purchase agreement provided that
until the note was paid, Chodos was to be the coman-
ager of 516, LLC, pursuant to a management contract,
which was attached to and expressly incorporated into
the purchase agreement. The defendant and Chodos
personally executed the management contract, which
included provisions that Chodos was not to be removed
as comanager so long as any debt was owed to SOE,
that Chodos was to be compensated for his services as
comanager, and that he would have all powers available
to the manager under the operating agreement of
516, LLC.
On April 4, 2008, the defendant, unknown to Chodos
or to the plaintiffs, unilaterally executed an amendment
to the operating agreement of 516, LLC. The amendment
removed Chodos as comanager, provided Chodos with
no voting rights, and provided no compensation to
Chodos. On May 1, 2008, the defendant executed
another amendment to the operating agreement. This
amendment recognized a mortgage of $365,000 in favor
of Allied International Fund, Inc. (Allied), and placed
the Allied security interest above SOE’s note in priority.
The defendant did not pay any of the $1.325 million
owed on the note or anything to Chodos for compensa-
tion under the management contract. In April, 2010, the
plaintiffs initiated this action against the defendant. On
December 31, 2011, SOE executed a ‘‘Bill of Sale and
Assignment’’ (assignment), which assigned to SOM ‘‘any
and all claims, rights and title to any and all defaulted
loans and damages relating to the sale of 516, LLC.’’
The plaintiffs alleged four counts: (1) breach of contract
for the defendant’s breach of the management contract;
(2) breach of the implied covenant of good faith and
fair dealing for the defendant’s bad faith breaches of
the management contract; (3) breach of contract
regarding the defendant’s failure to make payments on
the note; and (4) reckless and wanton misconduct by
the defendant. The defendant raised several special
defenses and counterclaims. There are no claims on
appeal regarding the special defenses and counter-
claims.
The trial commenced on January 23, 2015. The plain-
tiffs withdrew their claim of reckless and wanton mis-
conduct before the jury was charged. On February 6,
2015, the jury returned a verdict in favor of the plaintiffs
on all three remaining counts, as well as the defendant’s
special defenses and counterclaims. It awarded the
plaintiffs $1.325 million in damages. The verdict did not
attribute damages to any specific count or counts.2 At
the same time, the jury provided answers to a set of
written jury interrogatories. On February 23, 2015, the
defendant filed a motion for judgment notwithstanding
the verdict and a motion to set aside the verdict, which
motions the court denied on August 21, 2015. This
appeal followed. Additional facts will be set forth as
necessary.
On appeal, the defendant claims that the trial court
abused its discretion in denying her motion to set aside
the verdict and her motion for judgment notwithstand-
ing the verdict because the plaintiffs did not produce
the original note at trial, there was insufficient evidence
that the note was lost, and the plaintiffs did not have
the right to enforce the note; that the court incorrectly
instructed the jury regarding SOM’s right to enforce the
note; that the court lacked subject matter jurisdiction
over SOE because SOE did not have the legal capacity
to commence and continue the action; and that the
court abused its discretion in denying her motion for
judgment notwithstanding the verdict and in refusing
to set aside the verdict because neither plaintiff had a
right to enforce the management contract, the alleged
breaches did not cause any loss to the plaintiffs, and
the jury could not have determined with reasonable
certainty the amount of damages required. We consider
the claims in a different order for the purpose of clarity,
and, in light of our conclusions, it is not necessary to
address several of them.
We begin with our standard of review. ‘‘The proper
appellate standard of review when considering the
action of a trial court in granting or denying a motion
to set aside a verdict is the abuse of discretion standard.
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
given in favor of the correctness of the court’s ruling.
. . . Reversal is required only [when] an abuse of dis-
cretion is manifest or [when] injustice appears to have
been done. . . . [T]he role of the trial court on a motion
to set aside the jury’s verdict is not to sit as [an added]
juror . . . but, rather, to decide whether, viewing the
evidence in the light most favorable to the prevailing
party, the jury could reasonably have reached the ver-
dict that it did. . . . In reviewing the action of the trial
court in denying [or granting a motion] . . . to set aside
the verdict, our primary concern is to determine
whether the court abused its discretion . . . .’’ (Inter-
nal quotation marks omitted.) Rendahl v. Peluso, 173
Conn. App. 66, 94–95, 162 A.3d 1 (2017).
‘‘The standards for appellate review of a directed
verdict are well settled. Directed verdicts are not
favored. . . . A trial court should direct a verdict only
when a jury could not reasonably and legally have
reached any other conclusion. . . . In reviewing the
trial court’s decision [to deny the defendant’s motion
for a directed verdict] we must consider the evidence
in the light most favorable to the plaintiff. . . .
Although it is the jury’s right to draw logical deductions
and make reasonable inferences from the facts proven
. . . it may not resort to mere conjecture and specula-
tion. . . . A directed verdict is justified if . . . the evi-
dence is so weak that it would be proper for the court
to set aside a verdict rendered for the other party. . . .
The foregoing standard of review also governs the trial
court’s denial of the defendant’s motion for judgment
notwithstanding the verdict because that motion is not
a new motion, but [is] the renewal of [the previous]
motion for a directed verdict.’’ (Citation omitted; inter-
nal quotation marks omitted.) Bagley v. Adel Wiggins
Group, 327 Conn. 89, 102, 171 A.3d 432 (2017).
I
We first consider various issues regarding the third
count of the operative complaint, which alleged nonpay-
ment of the note. The jury indicated in its answers
to interrogatories that it had found that SOE and the
defendant originally had been the parties to the note,
that SOE possessed the note when it was lost, that the
note nonetheless had effectively been assigned to SOM,
and that the defendant failed to make payments on
the note. A note, of course, is a form of contract, and
principles of contract construction are used to interpret
its language. Federal National Mortgage Assn. v.
Bridgeport Portfolio, LLC, 150 Conn. App. 610, 620, 92
A.3d 966, cert. denied, 312 Conn. 926, 95 A.3d 523 (2014).
‘‘The standard of review for contract interpretation is
well established. Although ordinarily the question of
contract interpretation, being a question of the parties’
intent, is a question of fact . . . [when] there is defini-
tive contract language, the determination of what the
parties intended by their . . . commitments is a ques-
tion of law [over which our review is plenary].’’ (Internal
quotation marks omitted.) Meeker v. Mahon, 167 Conn.
App. 627, 632, 143 A.3d 1193 (2016). ‘‘In ascertaining
the contractual rights and obligations of the parties, we
seek to effectuate their intent, which is derived from
the language employed in the contract, taking into con-
sideration the circumstances of the parties and the
transaction. . . . We accord the language employed in
the contract a rational construction based on its com-
mon, natural and ordinary meaning and usage as applied
to the subject matter of the contract.’’ (Internal quota-
tion marks omitted.) Welch v. Stonybrook Gardens
Cooperative, Inc., 158 Conn. App. 185, 197, 118 A.3d
675, cert. denied, 318 Conn. 905, 122 A.3d 634 (2015).
‘‘Furthermore, [i]n giving meaning to the language of a
contract, we presume that the parties did not intend
to create an absurd result.’’ (Internal quotation marks
omitted.) South End Plaza Assn., Inc. v. Cote, 52 Conn.
App. 374, 378, 727 A.2d 231 (1999).
A
Prior to the transfer of the note, which occurred after
this action was initiated, SOE was clearly entitled to
enforce the note, as the parties to the purchase
agreement, which referenced the note, were the defen-
dant and SOE,3 and the parties to the note were, as
lender, SOE, and, as borrowers, 516, LLC, the defendant,
and a guarantor.4 Prior to the transfer of the note, then,
SOE5 was the only plaintiff able to enforce the note.
The plaintiffs do not claim to the contrary.
Approximately one year after the action was com-
menced, SOE transferred the note to SOM. The next
question is whether SOE, SOM, or both entities retained
the power to enforce the note. The assignment provided
in pertinent part that SOE ‘‘does hereby grant, convey,
sell, assign, and transfer over to [SOM] all [SOE’s] right,
title, and interest in and to . . . any and all claims,
rights and title to any and all defaulted loans and dam-
ages relating to the sale of 516, LLC.’’ The note was
referenced in the purchase agreement, and the note
itself referenced 516, LLC. Where no interest in the
assigned property is retained or the assignment is other-
wise qualified, the assignment extinguishes all of the
assignor’s rights in the assigned matter. Bozelko v. Mil-
ici, 139 Conn. App. 536, 539, 57 A.3d 762 (2012), cert.
denied, 308 Conn. 914, 61 A.3d 1101 (2013). The first
paragraph of the note specified that the defendant
‘‘acknowledges that [SOE] may transfer this [n]ote
. . . .’’ The assignment clearly stated that SOE was
assigning its ‘‘claims, rights and title to any and all
defaulted loans and damages relating to the sale of 516,
LLC.’’ SOE’s assignment of the note to SOM extin-
guished all rights SOE had to enforce the note. There-
fore, from December 31, 2011, onward, SOE lacked the
ability to enforce the note.6
B
The jury reported in its answers to interrogatories
that SOE transferred the note to SOM, and apparently
concluded that SOM was entitled to enforce the note.
The trial court determined, in its memorandum of deci-
sion dated August 21, 2015, on the defendant’s motion
for judgment notwithstanding the verdict, that ‘‘[t]here
was sufficient evidence for the jury to have found that,
in accord with General Statutes § 42a-3-309, SOE was
in possession of the note when it was lost, its where-
abouts are unknown, and the entity is entitled to enforce
the note. The jury further found that SOE transferred
the right to enforce the note to SOM. Again, the jury
could have reasonably and legally reached the conclu-
sion that the plaintiffs were in possession of the note,
and entitled to enforce it despite failing to produce the
original. The defendant has not submitted evidence to
the contrary.’’7 (Footnote omitted.)
The plaintiffs argue that the verdict was proper, in
light of the jury’s findings, and supported by the evi-
dence, because the note was lost while in the possession
of SOE, and that SOE assigned all rights under the note
to SOM.8 The defendant claims that SOM did not have
the power to enforce the note because it could not
satisfy the requirements of § 42a-3-309, the provision
for the enforcement of lost, destroyed, or stolen instru-
ments under article 3 of the Uniform Commercial Code
(UCC). We agree with the defendant.
Our analysis of the UCC involves questions of statu-
tory interpretation over which our review is plenary.
W & D Acquisition, LLC v. First Union National Bank,
262 Conn. 704, 709, 817 A.2d 91 (2003). ‘‘When constru-
ing a statute, [o]ur fundamental objective is to ascertain
and give effect to the apparent intent of the legislature.
. . . In other words, we seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
In seeking to determine that meaning, [we first] con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered.’’ (Internal
quotation marks omitted.) Mayer v. Historic District
Commission, 325 Conn. 765, 774–75, 160 A.3d 333
(2017).
Article 3 of the UCC governs negotiable instruments,
including notes. See General Statutes § 42a-3-102; see
also Valley National Bank v. Marcano, 174 Conn. App.
206, 211, 166 A.3d 80 (2017). To determine whether
SOM had standing to enforce the terms of the note, we
consider the text of General Statutes §§ 42a-3-3019 and
42a-3-309.10 Because SOM presented no evidence that
it possessed the original note at the time of trial, and
the plaintiffs do not make that claim in any event, SOM
was neither a holder nor a nonholder in possession. See
General Statutes § 42a-1-201 (21). Therefore, in order
to enforce the note, SOM must meet the criteria of
§ 42a-3-309. See General Statutes § 42a-3-301.
In a different context, our Supreme Court considered
the language of § 42a-3-309 (a) in New England Savings
Bank v. Bedford Realty Corp., 238 Conn. 745, 759–60,
680 A.2d 301 (1996). In that case, the defendant con-
tended that the plaintiff could not obtain a judgment
of strict foreclosure under §§ 42a-3-301 and 42a-3-309.
Id., 759. Specifically, the defendant claimed that
because the plaintiff never proved it possessed the origi-
nal note, it could not satisfy the requirement of § 42a-
3-309 to show possession to enforce a lost note. Id. Our
Supreme Court rejected this claim, noting that ‘‘[i]t is
well established . . . that the [mortgagee] is entitled
to pursue its remedy at law on the notes, or to pursue
its remedy in equity upon the mortgage, or to pursue
both.’’ (Internal quotation marks omitted.) Id. The
defendant did not dispute that it executed the note and
mortgage and that the debt existed. Id. The plaintiff
chose its equitable remedy, foreclosure of the mort-
gage. Id.
In deciding the case, however, our Supreme Court
observed that because the plaintiff had ‘‘chosen to pur-
sue the equitable action of foreclosure of the mortgage,
rather than a legal action on the note, the fact that
[the plaintiff] never possessed the lost promissory note
[was] not fatal to its foreclosure of the mortgage. . . .
[W]hatever restrictions §§ 42a-3-301 and 42a-3-309
might put upon the enforcement of personal liability
based solely upon a lost note, they [did] not prohibit
[the plaintiff] from pursuing an action of foreclosure
to enforce the terms of the mortgage.’’ Id., 759–60. Our
appellate courts have not addressed whether an
assignee may pursue an action on a lost note it never
possessed,11 but courts in other jurisdictions, and our
Superior Courts, have done so.
In Dennis Joslin Co., LLC v. Robinson Broadcasting
Corp., 977 F. Supp. 491, 495 (D.D.C. 1997) (Dennis
Joslin), the District Court held that the District of
Columbia’s version of UCC § 3-309 precluded the plain-
tiff from recovering on a note it did not possess at the
time the note was lost. The court noted that both UCC
§ 3-309 (1990) and its predecessor, the original UCC
§ 3-804 (1952), ‘‘are intended to protect defendants from
being obligated to two persons or entities with conflict-
ing claims—the original holder who lost the instrument
and a subsequent holder who innocently acquired the
lost note.’’ Id., 494. After attempting to discern the intent
behind the revision, the court nonetheless concluded
‘‘that the language of [UCC § 3-309 (1990)] clearly states
that the person suing on a lost note is entitled to enforce
the note only if that person was in possession of the
instrument when loss of possession occurred.’’ (Empha-
sis in original; internal quotation marks omitted.) Id.,
494–95. The court acknowledged that although ‘‘there
does not appear to be a logical reason to distinguish
between a person who was in possession at the time
of the loss and one who later comes into possession of
the rights to the note, the plain language of the provision
mandates that the plaintiff suing on the note must meet
two tests, not just one: it must have been both in posses-
sion of the note when it was lost and entitled to enforce
the note when it was lost.’’ (Emphasis in original.)
Id., 495.
In 2002, The American Law Institute and the National
Conference of Commissioners on Uniform State Laws,
the drafters of the model UCC, revised § 3-30912 with the
intent of rejecting the result in Dennis Joslin. Uniform
Commercial Code § 3-309 (2003) official comment 2.
The District of Columbia adopted this revision in 2013.
D.C. Code § 28:3-309 (2013). Connecticut has not
adopted this revision. Had it done so prior to the events
in issue, SOM might well have been entitled to enforce
the note. Because the legislature has not acted, we look
to other nonbinding authorities regarding the applica-
tion of UCC § 3-309 (1990).
In Atlantic National Trust, LLC v. McNamee, 984
So. 2d 375, 377–78 (Ala. 2007) (Atlantic National Trust),
the Supreme Court of Alabama rejected the Dennis
Joslin court’s interpretation of UCC § 3-309 (1990).13
The court reasoned that Alabama’s version of the UCC
was silent regarding the rights of assignees, and supple-
mented the statute with the common law pursuant to
§ 1-103 of the UCC. Id., 378. Because under Alabama
common law, an assignee has ‘‘the same rights, benefits,
and remedies that the assignor possesses,’’ the court
held that an assignee could enforce a lost note under
UCC § 3-309 (1990). (Internal quotation marks omit-
ted.) Id.
Some courts have interpreted the 1990 revision of
UCC § 3-309 in the same manner as Dennis Joslin. See
In re Harborhouse of Gloucester, LLC, 505 B.R. 365,
369–72 (Bankr. D. Mass.), aff’d, 523 B.R. 749 (B.A.P. 1st
Cir. 2014); In re Kemp, 440 B.R. 624, 632–33 (Bankr.
D.N.J. 2010); McKay v. Capital Resources Co., Ltd., 327
Ark. 737, 740–41, 940 S.W.2d 869 (1997); Zullo v. HMC
Assets, LLC, Docket No. 16 MISC 000413 (RBF), 2017
WL 2720319, *9 (Mass. Land June 22, 2017); Emerald
Portfolio, LLC v. Outer Banks/Kinnakeet Associates,
LLC, 790 S.E.2d 721, 725 (N.C. App. 2016); U.S. Bank,
N.A. v. Jones, 71 N.E.3d 1233, 1239–40 (Ohio App.
2016).14 Other courts have rejected that interpretation,
supplementing the statute with the common law of
assignments. See In re Caddo Parish-Villas South, Ltd.,
250 F.3d 300, 301–302 (5th Cir. 2001) (applying Louisi-
ana law); see also Southeast Investments, Inc. v. Clade,
Docket No. 3:97-CV-1799-L, 1999 WL 476865, *3 (N.D.
Tex. July 7, 1999), aff’d, Docket No. 99-11085, 2000 WL
423350 (5th Cir. April 3, 2000) (decision without pub-
lished opinion, 212 F.3d 595 [5th Cir. 2000]); National
Loan Investors, L.P. v. Joymar Associates, 767 So. 2d
549, 551 (Fla. App. 2000); NAB Asset Venture II, L.P.
v. Lenertz, Inc., Docket No. C4-97-2181, 1998 WL
422207, *3 (Minn. App. July 28, 1998); YYY Corp. v.
Gazda, 145 N.H. 53, 60–61, 761 A.2d 395 (2000); Bobby
D. Associates v. DiMarcantonio, 751 A.2d 673, 675–76
(Pa. Super. 2000); JP Morgan Chase Bank, N.A. v. Steh-
renberger, Docket No. 70295-5-I, 2014 WL 1711765, *3–4
(Wn. App. April 28, 2014) (decision without published
opinion, 180 Wash. App. 1047), cert. denied, 181 Wash. 2d
1017, 337 P.3d 325 (2014).15
Our Superior Court’s decisions regarding an assign-
ee’s entitlement to enforce a lost note under § 42a-3-
309 have likewise split along the Dennis Joslin/Atlantic
National Trust divide. See Cadle Co. of Connecticut,
Inc. v. Messick, Superior Court, judicial district of Mid-
dlesex, Docket No. CV-00-092983-S (June 26, 2001) (30
Conn. L. Rptr. 21, 22–23, 24) (citing implications of
holding in New England Savings Bank v. Bedford
Realty Corp., supra, 238 Conn. 759–60, in which court
granted motion for summary judgment where plaintiff
did not have possession of note at time it was lost);
Eastern Savings Bank, FSB v. Pellicano, Superior
Court, judicial district of Fairfield, Docket No. CV-96-
334043-S (February 24, 1998) (declaring without analy-
sis that § 42a-3-309 does not prevent assignee from
enforcing obligation where note was lost while in
assignor’s possession). One Superior Court decision
allowed a bank to enforce a note that it never possessed
because it merged with another bank that had lost the
note. Webster Bank v. River Road Antiques, LLC, Supe-
rior Court, judicial district of Tolland, Docket No. CV-
XX-XXXXXXX-S (May 5, 2008) (45 Conn. L. Rptr. 539,
541–42).
The plain language of the statutes persuades us that
Dennis Joslin and its progeny properly interpret and
apply UCC § 3-309 (1990), especially in light of our
Supreme Court’s holding in New England Savings
Bank. As previously stated, the application of § 42a-3-
301, in the circumstances of the present case, leads to
the conclusion that SOM is entitled to enforce the note
only if it satisfies the standards stated in § 42a-3-309.
Subsection (a) of § 42a-3-309, in turn, provides that ‘‘[a]
person not in possession of an instrument is entitled
to enforce the instrument if (i) the person was in posses-
sion of the instrument and entitled to enforce it when
loss of possession occurred . . . .’’ (Emphasis added.)
The only logical construction of the statutory language
compels the conclusion that the only person who can
enforce the note is the person in possession of the note
when it was lost. When the text of a statute is clear,
we do not adopt a different meaning or interpretation,
unless the clear meaning is absurd, regardless of
whether we agree or disagree with underlying policy.
State v. Lima, 325 Conn. 623, 631, 159 A.3d 651 (2017).
There are, of course, dueling policies. The defendant
maintains that if only the person who lost the note is
entitled to enforce the note, the debtor is better pro-
tected against the prospect of paying twice. See General
Statutes § 42a-3-309 (b); see also In re Harborhouse of
Gloucester, LLC, supra, 505 B.R. 372; McKay v. Capital
Resources Co., Ltd., supra, 327 Ark. 741. On the other
hand, as the plaintiffs suggest, if it is possible to enforce
a note to which the right to enforce the note, but not
the physical note, has been assigned, then fairness is
promoted because unjust enrichment is prevented. See,
e.g., National Loan Investors, L.P. v. Joymar Associ-
ates, supra, 767 So. 2d 551. In light of the clear language
of the statute, the plaintiffs’ policy arguments cannot
prevail.
The plaintiffs also argue that assignability is favored
by the common law, and that common law may be used
to supplement the UCC. See, e.g., Wykeham Rise, LLC
v. Federer, 305 Conn. 448, 471, 52 A.3d 702 (2012)
(‘‘[a]ssignability of rights is clearly favored with respect
to contracts generally’’). Connecticut courts also recog-
nize that assignees step into the shoes of the assignor,
even under the UCC. See, e.g., National Loan Investors
Ltd. Partnership v. Heritage Square Associates, 54
Conn. App. 67, 73, 733 A.2d 876 (1999) (National Loan
Investors). National Loan Investors, however, only
considered the extent to which the UCC codifies the
common law, not the extent to which it is supplemented
by it. See id., 73–74. It cites General Statutes § 42a-
3-203, which provides in part that ‘‘an instrument is
transferred when it is delivered . . . .’’ (Emphasis
added.) Absent delivery, there is no transfer. Where the
UCC expressly addresses an issue, the common law
does not supplant the code. See Bead Chain Mfg. Co.
v. Saxton Products, Inc., 183 Conn. 266, 270, 439 A.2d
314 (1981) (‘‘[w]hile it is true that the [UCC] incorpo-
rates, by reference, supplementary general principles
of contract law and of the law merchant . . . such
supplemental bodies of law cannot displace those provi-
sions of the [UCC] that are directly applicable’’ [citation
omitted]). Because § 42a-3-309 is directly applicable to
the situation underlying the present case, the common
law of assignments does not displace its clear pro-
visions.
We also note that although the UCC has been revised
by The American Law Institute and the National Confer-
ence of Commissioners on Uniform State Laws, and
the revision has been available for the legislature to
adopt for sixteen years, our legislature has thus far not
acted on the proposed revision.16 This court is ‘‘not
permitted to supply statutory language that the legisla-
ture may have chosen to omit.’’ (Internal quotation
marks omitted.) Mayer v. Historic District Commis-
sion, supra, 325 Conn. 776. ‘‘[C]ourts may not by con-
struction supply omissions . . . or add exceptions
merely because it appears that good reasons exist for
adding them. . . . It is axiomatic that the court itself
cannot rewrite a statute to accomplish a particular
result. That is a function of the legislature.’’ (Internal
quotation marks omitted.) Tuxis Ohr’s Fuel, Inc. v.
Administrator, Unemployment Compensation Act,
309 Conn. 412, 435, 72 A.3d 13 (2013). ‘‘If the legislature
believes we have mistaken its silence, it can easily over-
rule us.’’ Maio v. New Haven, 326 Conn. 708, 722, 167
A.3d 338 (2017). Thus, the common law of assignments
does not supplement § 42a-3-309 (a) because the statute
is clear and unambiguous and the legislature has not
acted otherwise.
We now apply § 42a-3-309 to the facts of this case.
In the course of Chodos’ testimony at trial, the plaintiffs
introduced a copy of the note into evidence, rather than
the original. The copy did not show an endorsement
from SOE to SOM, nor was it endorsed in blank. The
plaintiffs also introduced the assignment, which trans-
ferred SOE’s entire interest in the note to SOM. There
was no evidence presented from which the jury reason-
ably could infer that the note was lost while in SOM’s
possession. Chodos never claimed to have delivered the
note from SOE to SOM. The jury found, in its answers
to interrogatories, that the note was lost while in the
possession of SOE, and that SOE then assigned the note
to SOM. In denying the defendant’s posttrial motions,
the court recognized that sequence, and the plaintiffs
argue in their appellate brief, not that SOM was a holder
of the note in any way but rather that the law allowed
assignment of the proceeds of a note without physical
transfer of the note. The court, then, erred in denying
the motions to set aside the verdict and for judgment
notwithstanding the verdict, because neither SOE nor
SOM was entitled to enforce the note.
II
We next consider the issues regarding the manage-
ment contract. The defendant claims that the trial court
abused its discretion in denying her motion for judg-
ment notwithstanding the verdict and in refusing to set
aside the verdict in favor of SOE and SOM as to their
claims of breach regarding the management contract.
The defendant argues that there was no evidence that
the breach of the management contract caused any loss,
and that neither the breach of the management contract
nor the breach of the implied covenant of good faith
and fair dealing, if any, resulted in damages that could
be fairly ascertained.
A preliminary question is whether either SOM or SOE
were parties to the management contract. The manage-
ment contract was signed only by Chodos on the plain-
tiffs’ side; the management contract was expressly
incorporated into the purchase agreement, to which
SOE was a party. In regard to the purchase agreement,
SOM is not listed as a seller either in the opening para-
graph or in the list of parties to be noticed in § 12 of
the agreement. SOM appears in the purchase agreement
only on the signature page, where Chodos, as the duly
authorized president of SOM, signed for SOM, which
was SOE’s general partner. Because partnerships are
entities distinct from their partners; General Statutes
§ 34-313; SOM’s status as general partner did not have
the effect of making SOM a party to the purchase
agreement. Nor did SOM’s purported status as the man-
ager of 516, LLC, bestow party status because a limited
liability company’s manager has standing to enforce a
contract only ‘‘where the object of the proceeding is to
enforce a . . . manager’s right against or liability to
the limited liability company or as otherwise provided
in an operating agreement.’’17 General Statutes (Rev. to
2015) § 34-134. Similarly, the note, which was part of
the overall purchase transaction, was issued to SOE
only. SOM does not appear in that document at all.
Finally, as we have noted, the management contract,
which also was signed at the October 19, 2006 closing,
was executed by the defendant and Chodos.18 The man-
agement contract provided that the defendant could
not terminate the management contract ‘‘for any reason
while any debt is owed to [SOE].’’ SOM was not men-
tioned at all in the management contract. Thus, at least
prior to the assignment from SOE to SOM, SOM did
not have the ability to enforce or to pursue damages
arising from the management contract.
We must then consider the effect, if any, of the assign-
ment on the right to enforce the management contract.19
The assignment purported to assign ‘‘any and all claims,
rights and title to any and all defaulted loans and dam-
ages relating to the sale of 516, LLC’’; but the manage-
ment contract itself stated that no assignment could
be effected ‘‘without the prior written consent of the
[m]anager and the [c]o-[m]anager.’’ Because the assign-
ment was signed by Chodos alone—as agent for SOM
on behalf of SOE—and not by the defendant, the ‘‘man-
ager’’ of 516, LLC, the assignment document was inef-
fective to transfer SOE’s rights under the management
contract to SOM. Therefore, the assignment did not
have the effect of transferring to SOM the ability to
enforce the terms of the management contract. Only
SOE, then, retained any right to enforce the manage-
ment contract.20
The defendant’s claim that the trial court abused its
discretion in denying the motion to set aside the verdict
on this ground is, however, unreviewable. The defen-
dant claimed in her motion to set aside the verdict that
there was insufficient evidence to support the claims
for damages arising from breach of the management
contract, but the motion itself was, in its entirety, a list
of issues. The relevant claim, in its entirety, was the
following: ‘‘5. There is insufficient evidence to support
the verdict on the claim that [the] defendant, Sherri
DeVito, breached any agreement not to change the
operating agreement and, also, there was insufficient
evidence to support any damage claim arising from
the breach of contract claim, including lack of stand-
ing.’’ (Emphasis added.) Her corresponding brief to
the trial court did not address the claim of insufficient
evidence to support damages at all. In its memorandum
of decision, the trial court acknowledged that ‘‘[t]he
defendant originally listed nine grounds in her motion
to set aside the verdict but has only briefed four . . . .
Accordingly, the court addresses those four grounds.’’
The defendant did not request the trial court to rule
further on the issue. See Practice Book § 60-5.
The trial court’s memorandum of decision did not
address the defendant’s claim because she did not brief
the issue. On appeal, the defendant has not challenged
the trial court’s apparent finding of abandonment, but
claims an abuse of discretion for failure to set aside
the verdict for insufficient evidence. ‘‘Both our Supreme
Court and this court have stated the principle that, when
a party abandons a claim or argument before the trial
court, that party waives the right to appellate review
of such claim because a contrary conclusion would
result in an ambush of the trial court.’’ (Internal quota-
tion marks omitted.) State v. Martone, 160 Conn. App.
315, 327, 125 A.3d 590, cert. denied, 320 Conn. 904,
127 A.3d 187 (2015). Therefore, because the defendant
abandoned her claim in the trial court that there was
insufficient evidence to support the claims of damages
regarding the management contract, her claim is unre-
viewable here.
We briefly address the award of $1.325 million in
damages. Neither party requested that the jury award
damages as to the individual counts, and the jury simply
awarded undifferentiated damages in the amount of
$1.325 million. In such circumstances, ‘‘an appellate
court will presume that the jury found every issue in
favor of the prevailing party . . . and decline further
appellate review. . . . Where there was an error free
path available to the jury to reach its verdict, and no
special interrogatories were submitted showing which
road the jury went down, any judgment rendered on
such a verdict must be affirmed.’’ (Emphasis in original;
internal quotation marks omitted.) Brown v. Bridgeport
Police Dept., 155 Conn. App. 61, 69, 107 A.3d 1013 (2015).
In the circumstances of this case, because the jury found
in favor of the plaintiffs on more than one count but
awarded only a total amount of $1.325 million in dam-
ages, we presume that the jury found damages of $1.325
million, whether based on breach of the note or breach
of the management contract. Accordingly, the verdict
must stand.
The judgment is reversed as to SOE’s claim of breach
of contract regarding the note and all of SOM’s claims,
and the case is remanded with direction to render judg-
ment in favor of the defendant on those claims; the
judgment is affirmed as to SOE’s claim regarding breach
of the management contract.
In this opinion the other judges concurred.
1
Robert DePaolo was also named as a defendant in this action. The
plaintiffs withdrew their complaint as to DePaolo before the trial com-
menced. All references to the defendant in this opinion are to DeVito alone.
The defendant’s first name has been spelled in the record as both ‘‘Sherry’’
and ‘‘Sherri.’’ Her submissions to this court use the spelling ‘‘Sherri.’’ We
retain the spelling ‘‘Sherry’’ in the case caption but use ‘‘Sherri’’ in this
opinion when necessary.
2
Judgment was not rendered in favor of the plaintiffs on the second
count, which alleged breach of the covenant of good faith and fair dealing,
apparently in light of the plaintiffs’ verdict as to the first count, which alleged
breach of contract on the same facts.
3
The opening paragraph of the purchase agreement provides in part that
‘‘[t]his membership interest purchase agreement . . . is entered into as
of this [19th] day of October, 2006 by and between [SOE] . . . and [the
defendant] . . . .’’
4
The guarantor of the note has played no role in this appeal.
5
The defendant argues that SOE did not have standing to pursue this
action because it was a Delaware limited partnership that was not registered
in Connecticut, and it had transacted business in this state. See General
Statutes §§ 34-38l and 34-38o. Section 34-38o (a), however, provides in rele-
vant part that ‘‘[a]ny foreign limited partnership may . . . sell and convey
real and personal property in this state for its lawful uses and purposes
. . . without such action constituting transacting business in this state for
the purposes of this chapter.’’ Under the then current statutory provision,
‘‘[a] limited liability company membership interest is personal property.’’
General Statutes (Rev. to 2015) § 34-169.
The defendant argues, however, that because Chodos, as owner of SOE,
which owned 516, LLC, ‘‘did substantial work in preparing the property
for development at 516 Round Hill Road, Greenwich, and in obtaining the
necessary permits for its eventual development,’’ and because Chodos ‘‘also
claimed that he retained the right to co-manage’’ 516, LLC, for SOE’s benefit,
SOE transacted business in this state. These arguments, however, do not
reflect the distinct statuses of partnerships and partners, corporations and
shareholders, limited liability companies and members, and the individuals
who own them. The jury found that the plaintiffs had proved they were ‘‘in
good standing at the time of the formation of the contracts’’ and, thus,
apparently found that SOE was not transacting business in this state. The
jury’s action finds some support in the evidence: the only specific transac-
tions by SOE involved real and personal property transactions, which § 34-
38o exempts from the meaning of transacting business. Additionally, Chodos
testified that the sole purpose of SOE was to act as a ‘‘holding company’’
of other entities.
6
At trial, the court engaged in the following colloquy with the plain-
tiffs’ counsel:
‘‘The Court: [Plaintiffs’ counsel], why is [SOE] the plaintiff if it has assigned
its interest?
‘‘[The Plaintiffs’ Counsel]: Well, initially, when . . . this case was started
in 2010, they were in existence.
‘‘The Court: I see. . . . They’re just in the caption, I believe.
‘‘[The Plaintiffs’ Counsel]: That’s right. They’re in the caption. It remained
that way; and again . . . at the end of the day . . . once we approve the
assignment and all these claims have been assigned, technically, it will be
[SOM] that will have the right to recoup any judgment found in our favor.’’
The court then deferred considering the issue of whether SOE should
remain as a plaintiff, at least regarding its ability to enforce the note after
the assignment, but then never specifically addressed the issue.
7
In the trial court’s memorandum of decision on the defendant’s motion
to set aside the verdict, also dated August 21, 2015, the court further con-
cluded: ‘‘The defendant contends that there is no evidence that SOM ever
possessed the note, but that is beside the point. The documents reflecting
the assignment of rights in the note were admitted into evidence, and the
jury was instructed on the alleged assignment of the right to enforce the
note to SOM, not any assignment of the note itself. The defendant has not
met the burden of proving that the assignment of rights was invalid, or that
a reasonable jury could not find that SOM was entitled to enforce the note.
Accordingly, the verdict will not be set aside on the ground that the original
note was not produced, considering that the plaintiffs submitted sufficient
evidence for the jury to reach its specific conclusion that [the] plaintiffs had
the right to enforce the note against [the] defendant.’’ (Footnote omitted.)
8
The defendant claims that there was insufficient evidence to support
the conclusion that the note was ‘‘lost’’ pursuant to the provisions of § 42a-
3-309. In light of our disposition of the issue, we need not decide this claim.
9
General Statutes § 42a-3-301 provides that a ‘‘ ‘[p]erson entitled to
enforce’ an instrument means (i) the holder of the instrument, (ii) a non-
holder in possession of the instrument who has the rights of a holder, or
(iii) a person not in possession of the instrument who is entitled to enforce
the instrument pursuant to section 42a-3-309 or 42a-3-418(d). A person may
be a person entitled to enforce the instrument even though the person is not
the owner of the instrument or is in wrongful possession of the instrument.’’
10
General Statutes § 42a-3-309 provides: ‘‘(a) A person not in possession
of an instrument is entitled to enforce the instrument if (i) the person was
in possession of the instrument and entitled to enforce it when loss of
possession occurred, (ii) the loss of possession was not the result of a
transfer by the person or a lawful seizure, and (iii) the person cannot
reasonably obtain possession of the instrument because the instrument was
destroyed, its whereabouts cannot be determined, or it is in the wrongful
possession of an unknown person or a person that cannot be found or is
not amenable to service of process.
‘‘(b) A person seeking enforcement of an instrument under subsection
(a) must prove the terms of the instrument and the person’s right to enforce
the instrument. If that proof is made, section 42a-3-308 applies to the case
as if the person seeking enforcement had produced the instrument. The
court may not enter judgment in favor of the person seeking enforcement
unless it finds that the person required to pay the instrument is adequately
protected against loss that might occur by reason of a claim by another
person to enforce the instrument. Adequate protection may be provided by
any reasonable means.’’
11
We note that the defendant consistently has relied on precedents in
foreclosure actions, which have limited persuasive value in the present
context.
12
UCC § 3-309 (a) (2003) was revised to state that ‘‘[a] person not in
possession of an instrument is entitled to enforce the instrument if . . .
the person seeking to enforce the instrument . . . was entitled to enforce
the instrument when loss of possession occurred; or . . . has directly or
indirectly acquired ownership of the instrument from a person who was
entitled to enforce the instrument when loss of possession occurred . . . .’’
13
At the time, Alabama’s version of UCC § 3-309 was the 1990 revision.
Alabama has since adopted the 2002 revision noted in footnote 12 of this
opinion. Ala. Code § 7-3-309 (1975).
14
Arkansas and Ohio have since updated their versions of § 3-309 to the
2002 revision. Ark. Code Ann. § 4-3-309 (2005); Ohio Rev. Code Ann. § 1303.38
(West 2016).
15
Florida, Minnesota, New Hampshire, and Texas have also updated their
versions of § 3-309 to the 2002 revision. Fla. Stat. § 673.3091 (2004); Minn.
Stat. § 336.3-309 (2003); N.H. Rev. Stat. Ann. § 382-A:3-309 (2004); Tex. Bus. &
Com. Code Ann. § 3.309 (Vernon 2005).
16
The implications of the New England Savings Bank decision are like-
wise telling because the decision would have put the legislature on notice
regarding § 42a-3-309.
17
The operating agreement of 516, LLC, is both silent as to the standing
of managers and irrelevant because 516, LLC, is not a party to this action.
18
The defendant argues that because Chodos signed the management
contract without reference to any agency capacity, neither SOE nor SOM
has the power to enforce it; the management contract, however, was inte-
grated into the purchase agreement. Section 18 of the purchase agreement
provided that ‘‘[u]ntil such time as [the defendant] has paid all sums due
under the [n]ote, Murray Chodos shall be a [c]o-[m]anager of 516, LLC,
pursuant to the instrument attached hereto and made a part hereof as
[e]xhibit B.’’ (Emphasis added.) Although the defendant denied signing the
management contract at trial, she does not dispute that issue on appeal.
Because the purchase agreement, which the defendant admitted signing,
clearly incorporated the management contract, the defendant’s argument
that SOE was a stranger to the management contract fails.
Additionally, the jury was instructed that, under General Statutes § 42a-
3-117, ‘‘the obligation of a party to an instrument to pay the instrument may
be modified, supplemented, or nullified by a separate agreement of the
obligor and a person entitled to enforce the instrument, if the instrument
is issued or the obligation is incurred in reliance on the agreement or
as part of the same transaction giving rise to the agreement.’’ The jury’s
subsequent finding that SOE was a party to the management contract
because it was executed as part of the same transaction as the note is
consistent with our observation that the management contract was inte-
grated into the purchase agreement, as the purchase agreement also was
executed at the same time. SOE’s subsequent assignment of the note has
no necessary effect on its ability to enforce the management contract.
Because SOM was not a party to the purchase agreement or the note,
however, it was likewise not a party to the management contract.
19
The defendant has not specifically argued that the assignment failed to
convey SOE’s rights regarding the enforcement of the management contract,
but we consider the issue briefly because of the disagreement concerning
the plaintiffs’ standing to enforce it.
We note that the plaintiffs did not allege in their complaint that SOE had
assigned the management contract to SOM; rather, the complaint seems to
allege that SOE and SOM were both parties to the management contract.
‘‘It is axiomatic that the parties are bound by their pleadings.’’ (Internal
quotation marks omitted.) Harborside Connecticut Ltd. Partnership v.
Witte, 170 Conn. App. 26, 34, 154 A.3d 1082 (2016). Likewise, the jury was
never charged with deciding whether the management contract was
assigned, as opposed to the note; the issue was not a subject of the jury
interrogatories. Finally, although Chodos testified that the assignment was
meant to assign ‘‘everything’’ to SOM, Chodos’ list of ‘‘everything’’ included
‘‘the binder issued by the Secretary of State of Delaware, the seal, any books
and records that we would have had . . . .’’ Chodos was later asked if the
note was intended to be included in the assignment. He replied, ‘‘Everything
pursuant to the sale of 516, LLC, was intended to be transferred to the
successor entity as we closed the former entity formally.’’ The language of
the assignment itself is not so broad: the management contract was not
necessarily part of a claim, right, or title ‘‘to any and all defaulted loans
and damages . . . .’’ (Emphasis added.)
Chodos’ answer was in reply to a question about the intent to transfer
the note, which the plaintiffs alleged had been assigned. The plaintiffs have
never claimed, even on appeal, that the management contract was assigned.
20
The defendant argues that SOE did not have standing because it had
dissolved and wound up its affairs prior to trial. Although Chodos testified
that SOE had wound up its affairs, our holding that the management contract
was not properly assigned leaves SOE with the two claims of breach regard-
ing the management contract before SOE was terminated. See General
Statutes §§ 34-373 and 34-374 (c).