Manere v. Collins ( 2020 )

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ROBERT MANERE v. PETER COLLINS ET AL.
(AC 42182)
DiPentima, C. J., and Elgo and Beach, Js.*
Syllabus
The plaintiff, a minority member of the defendant B Co., a Connecticut
limited liability company, sought to recover damages from B Co. and
the defendant C for, inter alia, breach of contract, and sought the dissolu-
tion of B Co. on the ground of oppressive conduct. The plaintiff and C
formed B Co. for the purposes of purchasing and operating a cafe. C
received a 60 percent interest in B Co. and the plaintiff received a 40
percent interest in B Co. A hurricane caused the cafe to be closed for
a period of time, and, despite an oral agreement between C and the
plaintiff that neither would take any guaranteed payments from B Co.
for fifty-two weeks, the plaintiff continued to take cash from B Co.
during this period. C subsequently reconstructed the cafe’s financial
history, which revealed that the plaintiff had misappropriated approxi-
mately $190,000 of B Co.’s funds. C amended the operating agreement
of B Co., and terminated the plaintiff as a manager of B Co., terminated
the plaintiff’s son as an employee, stopped payment on certain checks
issued to the plaintiff and changed the locks on the cafe to prevent
the plaintiff from accessing the building. The plaintiff commenced the
present action asserting various claims, including breach of fiduciary
duty and oppression by C, and seeking the dissolution of B Co. pursuant
to statute (§ 34-267 (a) (5)), and B Co. filed a counterclaim alleging
breach of fiduciary duty. After a bench trial, the court rendered judgment
in favor of the defendants as to all counts of the plaintiff’s complaint,
and in favor of B Co. on the count of its counterclaim alleging breach
of fiduciary duty. From the judgment rendered thereon, the plaintiff
appealed to this court. Held:
1. The trial court properly concluded that B Co.’s counterclaim stated a
claim on which relief could be granted: B Co. pleaded facts which
sufficiently alleged a claim of breach of fiduciary duty, specifically, that
the plaintiff owed a fiduciary duty to B Co., that the plaintiff breached
that duty by acting in a manner that would personally benefit himself
in the form of using B Co.’s funds for his own interests at the expense
of the interests of B Co., and that B Co.’s damages were a result of the
plaintiff’s conduct; the plaintiff’s emphasis on B Co.’s use of the term
‘‘misappropriation’’ was misplaced, as B Co.’s allegation that the plaintiff
misappropriated funds was simply a recitation of facts describing con-
duct in support of its claim for breach of fiduficary duty, rather than
an attempt to state a cause of action for ‘‘misappropriation.’’
2. The trial court improperly applied a six year statute of limitations to B
Co.’s counterclaim: notwithstanding B Co.’s claim that it had set forth
an action for an accounting, to which a six year statute of limitations
would apply pursuant to statute (§ 52-576), B Co.’s counterclaim did
not allege that it either made a demand of the plaintiff to furnish an
accounting or that the plaintiff refused its demand, instead merely
requesting in its prayer for relief an accounting of all B Co.’s funds
that the plaintiff misappropriated; moreover, all of B Co.’s financial
information was available to it by the time it filed its counterclaim, as
evidenced by its calculation of the specific amount of money that the
plaintiff had misappropriated; thus, although B. Co’s counterclaim
alleged that the plaintiff breached a fiduciary duty, it did not properly
allege that the plaintiff’s breach of that duty necessitated an accounting,
and the plaintiff’s breach of his fiduciary duty to B Co. did not prevent
B Co. from ascertaining the amount of money that the plaintiff misappro-
priated; B Co.’s counterclaim, rather, set forth a claim for breach of
fiduciary duty, which is governed by a three year statute of limitations
under the applicable statute (§ 52-577), and, because the question of
whether the plaintiff’s tortious conduct fell within that three year period
implicated issues of fact, the trial court’s judgment was reversed and
the case was remanded for further proceedings.
3. The trial court improperly rejected the plaintiff’s application to dissolve
B Co. on the ground of oppression pursuant § 34-267 (a) (5) because
that court applied an incorrect legal standard in evaluating the plaintiff’s
claim: this court concluded that a new trial was warranted on the plain-
tiff’s claim of oppression as to all of the complained of conduct, except
for the plaintiff’s termination of employment, as it was clear from the
record that the court did not assess the plaintiff’s claim of oppression
by focusing on his reasonable expectations as a minority member of
B Co.
Argued December 5, 2019—officially released September 29, 2020
Procedural History
Action seeking damages for, inter alia, breach of con-
tract, and the dissolution of the defendant BAHR, LLC,
brought to the Superior Court in the judicial district
of Fairfield, where the defendant BAHR, LLC, filed a
counterclaim; thereafter, the matter was tried to the
court, Hon. George N. Thim, judge trial referee; judg-
ment in favor of the defendants on all counts of the
plaintiff’s complaint and in favor of the defendant
BAHR, LLC, on the second count of its counterclaim,
and the plaintiff appealed to this court. Affirmed in
part; reversed in part; further proceedings.
Alan R. Spirer, for the appellant (plaintiff).
Alexander H. Schwartz, with whom was Roy S. Ward,
for the appellees (defendants).
Opinion
ELGO, J. The plaintiff, Robert Manere, appeals from
the judgment of the trial court, rendered after a bench
trial, in favor of the defendants, Peter Collins and BAHR,
LLC (BAHR). On appeal, the plaintiff claims that the
court improperly (1) concluded that BAHR’s counter-
claim stated a claim upon which relief could be granted,
(2) applied a six year statute of limitations to BAHR’s
counterclaim, and (3) rejected his application to dis-
solve BAHR on the ground of oppression pursuant to
General Statutes § 34-267 (a) (5), Connecticut’s limited
liability company dissolution statute.1 We agree with
the plaintiff’s second and third claims and, accordingly,
reverse in part the judgment of the trial court.
The following facts, as found by the trial court or
otherwise undisputed, and procedural history are rele-
vant to this appeal. In 2009, the plaintiff and Collins,
both graduates of the same high school, reconnected
during their thirtieth high school reunion. Between the
time after graduation and the reunion, both had pursued
professions in the food service and bar industry. The
plaintiff had experience in the restaurant business and
Collins was the owner and manager of a successful bar
in New York City. Still working in the Fairfield county
area, the plaintiff became aware that a popular bar and
restaurant establishment, Seagrape Cafe (cafe), was
potentially for sale. Both the plaintiff and Collins were
familiar with the cafe and its popularity among col-
lege students.
In 2011, the plaintiff and Collins formed BAHR, a
Connecticut limited liability company, for the purposes
of purchasing and operating the cafe. After forming
BAHR, the plaintiff and Collins executed an operating
agreement drafted by an attorney who previously had
represented the plaintiff in unrelated business matters.
The plaintiff and Collins were the sole members of
BAHR, and the operating agreement designated both
as its managers. Each provided capital contributions
and ‘‘priority member loans’’2 to BAHR. Specifically,
Collins provided a $600 capital contribution and a
$149,400 priority member loan,3 and the plaintiff pro-
vided a $400 capital contribution and a $19,600 priority
member loan.4 Due to the disparity in their respective
loans, Collins received a 60 percent interest and the
plaintiff received a 40 percent interest in BAHR. There-
after, the plaintiff signed a lease on behalf of BAHR for
the property on which the cafe is located and further
provided a personal guarantee of BAHR’s performance
under the lease.
In the fall of 2011, the cafe opened under BAHR’s
ownership. Because Collins was living in New York
City, where he operated a different establishment, the
plaintiff and Collins agreed that the plaintiff would be
primarily responsible for operating the cafe and acting
as its on-site manager. Prior to its opening, Collins and
the plaintiff agreed that, as compensation for acting as
the cafe’s manager, the plaintiff would be paid a weekly
salary of $600. The plaintiff’s responsibilities included
hiring and paying staff, obtaining stock items such as
food and liquor, and accounting for revenue and
expenses. Shortly after the cafe opened, the plaintiff
and Collins agreed to raise the plaintiff’s weekly salary
to $1000 per week.5 Unbeknownst to Collins, the plain-
tiff was also using BAHR funds to pay for personal
expenses such as health insurance, car payments,
and gas.
In October, 2012, Hurricane Sandy devastated the
Fairfield county area and severely damaged the cafe
premises. In addition to the cafe, a small house located
on the same property, which was leased by BAHR and
used as an office for BAHR affairs, sustained damage.
Due to the severe impact on both the cafe and the
community in which it was located, the cafe was closed
for a period of time in an effort to rebuild the premises.
Pursuant to their recovery plan, both the plaintiff and
Collins agreed that neither would take any guaranteed
payments from BAHR for a period of fifty-two weeks.
Despite this oral agreement, the plaintiff continued to
take cash from the business during the recovery period.
For instance, the plaintiff continued to take a salary in
cash and unilaterally increased that salary to $1500 per
week in June, 2013. He also continued to use BAHR
funds to pay for his health insurance, car payments,
and gas. The plaintiff recorded these cash payments in
a handwritten ledger. In October, 2013, after the fifty-
two week period had ended, the plaintiff ceased taking
his $1500 salary in cash and resumed issuing himself
checks in that amount. He also continued to use BAHR
funds to pay for personal expenses.
In 2015, Collins and his family moved to Connecticut
and began to spend more time at the cafe. Due to his
more active role in the cafe, Collins began to receive
a weekly salary of $1000. The plaintiff thereafter
reduced his weekly salary from $1500 to $1000. Later
that same year, the plaintiff, Collins, and two associates
of Collins opened a restaurant called the Georgetown
Saloon. BAHR was not involved in this new venture.
Instead, a separate limited liability company was
formed for the purposes of owning and operating the
Georgetown Saloon. Like his role at the cafe, the plain-
tiff was tasked with operating the Georgetown Saloon
and acting as its on-site manager. Unlike the cafe, how-
ever, the Georgetown Saloon proved unsuccessful and
closed in July, 2016. Although he did not blame the
plaintiff for the Georgetown Saloon’s failure, Collins
became concerned with the plaintiff’s style of manage-
ment based on the manner in which the plaintiff con-
ducted himself as its manager. As a result, Collins began
to increasingly question the plaintiff about cafe affairs,
including its finances and daily receipts.
Dissatisfied with the information he was receiving
from the plaintiff, Collins began to ask cafe employees
to text or e-mail him daily revenue numbers. When
Collins asked the plaintiff to provide him with BAHR’s
business records—all of which had been relocated from
the on-site office to the plaintiff’s home after Hurricane
Sandy—he received partial information which was
often either incomplete or unresponsive. The piecemeal
information provided by the plaintiff led Collins to per-
form his own inquiry into BAHR’s records. With his wife,
Collins obtained records of cash receipts and payments,
bank records, tax returns, and other information in an
attempt to reconstruct BAHR’s financial history. Com-
plicating this process was the fact that Collins initially
did not have access to the payroll system and, due to
the plaintiff’s disorganized storage or outright destruc-
tion of BAHR’s financial records, had only part of
BAHR’s financial records available to him. The trial
court found that Collins’ reconstruction of the cafe’s
financial history revealed that the plaintiff had misap-
propriated approximately $190,000 of BAHR funds. In
March, 2017, Collins unilaterally amended the operating
agreement.6 In the amended operating agreement, the
plaintiff was terminated as a manager of BAHR. In addi-
tion, the plaintiff was removed as the liquor permittee
for the cafe. The plaintiff’s son, who was employed
as a bartender at the cafe, was also terminated as an
employee. Collins thereafter stopped payment on nine
$1000 checks issued to the plaintiff and changed the
locks on the cafe to prevent the plaintiff from accessing
the building.7
After taking over management of the cafe, Collins
brought the building into compliance with fire safety
standards. He further ensured that the cafe’s staff were
put on a payroll system for the purpose of placing the
cafe in compliance with state and federal wage and
hour laws. As a result, the cafe’s revenue increased by
25 percent.
Since 2017, BAHR has not made any distributions to
Collins or the plaintiff. Additionally, the plaintiff has
not been provided with any information concerning
BAHR’s finances pursuant to the operating agreement,
other than the information he received through the dis-
covery process of the underlying litigation. Although
Collins continued to receive a weekly salary of $1000
as of the time of the trial, no other payments have been
made by BAHR to either Collins or the plaintiff.
In response to the measures taken by Collins, the
plaintiff instituted the underlying action against Collins
and BAHR, asserting a series of claims against both
defendants including, inter alia, breach of contract by
both defendants, breach of fiduciary duty by Collins,
and oppression by Collins. The plaintiff also sought an
accounting of BAHR’s finances. The plaintiff further
requested the dissolution of BAHR pursuant to § 34-
267 (a) (5) on the ground of oppression.8 In response,
BAHR filed an answer and brought a counterclaim
against the plaintiff.9 The plaintiff, as the counterclaim
defendant, asserted four special defenses.10 After a two
day bench trial, the court, Hon. George R. Thim, judge
trial referee, rendered judgment in favor of the defen-
dants on all counts of the plaintiff’s complaint. The
court further rendered judgment in favor of BAHR on
its counterclaim and awarded it $190,463.03 in damages.
This appeal followed.
I
The plaintiff first challenges the propriety of the
court’s judgment in favor of BAHR on its counterclaim.
According to the plaintiff, the counterclaim alleged a
claim of misappropriation, a cause of action that is
not recognized under Connecticut law. The plaintiff
therefore argues that, based on its responsive pleading,
BAHR did not state a claim upon which relief could be
granted.11 We disagree.
‘‘[I]t is well settled that the [t]he failure to include a
necessary allegation in a complaint precludes a recov-
ery by the plaintiff under the complaint . . . . As a
result, [i]t is incumbent on a plaintiff to allege some
recognizable cause of action in his complaint. . . . Yet
[w]e previously have recognized [that] . . . if the com-
plaint puts the defendant on notice of the relevant
claims, then a plaintiff’s failure specifically to allege a
particular fact or issue is not fatal to his claims unless
it results in prejudice to the defendant.’’ (Internal quota-
tion marks omitted.) Sharp Electronics Corp. v. Solaire
Development, LLC, 156 Conn. App. 17, 34, 111 A.3d
533 (2015). ‘‘[T]he general rule is that [a] counterclaim
should be pleaded in exactly the same way the claim
would be pleaded in the complaint in an independent
action.’’ (Internal quotation marks omitted.) 98 Lords
Highway, LLC v. One Hundred Lords Highway, LLC,
138 Conn. App. 776, 796, 54 A.3d 232 (2012).
‘‘The interpretation of pleadings is always a question
of law for the court . . . . Our review of the trial
court’s interpretation of the pleadings therefore is ple-
nary.’’ (Internal quotation marks omitted.) Grenier v.
Commissioner of Transportation, 306 Conn. 523, 536,
51 A.3d 367 (2012). ‘‘In exercising that review, [w]e take
the facts to be those alleged in the complaint . . . and
we construe the complaint in the manner most favor-
able to sustaining its legal sufficiency. . . . Moreover,
we are mindful that pleadings must be construed
broadly and realistically, rather than narrowly and tech-
nically.’’ (Citation omitted; internal quotation marks
omitted.) Sharp Electronics Corp. v. Solaire Develop-
ment, LLC, supra, 156 Conn. App. 34. ‘‘[I]n determining
the nature of a pleading filed by a party, we are not
bound by the label affixed to that pleading by the party.’’
BNY Western Trust v. Roman, 295 Conn. 194, 210, 990
A.2d 853 (2010).
Upon our review, we are convinced that BAHR, in
its counterclaim, properly alleged a claim of breach of
fiduciary duty. Contrary to the plaintiff’s argument, it
is clear from the operative pleadings that BAHR pleaded
facts which sufficiently set forth that cause of action.
‘‘The elements which must be proved to support a
conclusion of breach of fiduciary duty are: [1] [t]hat a
fiduciary relationship existed which gave rise to . . .
a duty of loyalty . . . an obligation . . . to act in the
best interests of the plaintiff, and . . . an obligation
. . . to act in good faith in any matter relating to the
plaintiff; [2] [t]hat the defendant advanced his or her
own interests to the detriment of the plaintiff; [3] [t]hat
the plaintiff sustained damages; [and] [4] [t]hat the dam-
ages were proximately caused by the fiduciary’s breach
of his or her financial duty.’’ (Internal quotation marks
omitted.) Chioffi v. Martin, 181 Conn. App. 111, 138,
186 A.3d 15 (2018).
Consistent with these elements, BAHR alleged, in
relevant part, the following facts in its counterclaim:
(1) the plaintiff held 40 percent of BAHR’s membership
interests; (2) until March, 2017, the plaintiff was
entrusted with BAHR’s day-to-day operations and con-
trol; (3) in March, 2017, Collins learned that the plaintiff
had been misappropriating BAHR’s assets and income
by using such assets and income for his own personal
benefit; (4) the plaintiff did not have, nor did he seek,
permission to use BAHR’s assets and income for his
own personal benefit; (5) ‘‘as a member and manager
of BAHR, [the] plaintiff owed the company the duty to
act in good faith towards the company with the care
an ordinarily prudent person in a like position would
exercise under similar circumstances, and in a manner
[he] reasonably believed was in BAHR’s best interest,
not his own personal interests’’; (6) ‘‘[the] [p]laintiff
breached the duties he owed to BAHR by misappropriat-
ing and stealing its funds’’; and (7) ‘‘[o]n account of
[the] plaintiff’s conduct, BAHR is damaged.’’
On the basis of our reading of BAHR’s pleading,
BAHR alleged (1) that the plaintiff owed a fiduciary
duty to BAHR, namely, a duty to act in good faith toward
the company and the company’s best interests as
opposed to his own, (2) the plaintiff breached that duty
by acting in a manner that would personally benefit
himself in the form of using BAHR funds for his own
interests at the expense of the interests of BAHR, (3)
BAHR sustained damages, and (4) BAHR’s damages
were a result of the plaintiff’s conduct. Viewing those
allegations in the light most favorable to sustaining its
legal sufficiency; see Sharp Electronics Corp. v. Solaire
Development, LLC, supra, 156 Conn. App. 34; we con-
clude that BAHR’s counterclaim sounds in breach of
fiduciary duty.
We recognize that a party ‘‘must allege breach of
fiduciary duty with specificity before liability can attach
on such grounds.’’ Pergament v. Green, 32 Conn. App.
644, 651, 630 A.2d 615, cert. denied, 228 Conn. 903,
634 A.2d 296 (1993). There is no dispute that BAHR’s
counterclaim does not explicitly allege the phrase
‘‘breach of fiduciary duty.’’ Notwithstanding the
absence of that phrase in BAHR’s pleadings, ‘‘[t]here
can . . . be no serious claim of surprise or prejudice
by the [defendants] for the lack of these terms.’’ Morton
v. Syriac, 196 Conn. App. 183, 192, 229 A.3d 1129, cert.
denied, 335 Conn 915, 229 A.3d 1045 (2020). Indeed,
nearly all of the duties alleged in BAHR’s counterclaim
are fiduciary in nature. See Murphy v. Wakelee, 247
Conn. 396, 401–402, 721 A.2d 1181 (1998) (‘‘[i]t is a
thoroughly [well settled] equitable rule that any one
acting in a fiduciary relation shall not be permitted to
make use of that relation to benefit his own personal
interest’’ (internal quotation marks omitted)); Hall v.
Schoenwetter, 239 Conn. 553, 562, 686 A.2d 980 (1996)
(plaintiff, as executrix of estate, ‘‘undertook a fiduciary
duty obligating her to act in the best interests of the
estate’’); Pacelli Brothers Transportation, Inc. v.
Pacelli, 189 Conn. 401, 407, 456 A.2d 325 (1983) (director
of corporation, as fiduciary to both corporation and
shareholders, ‘‘is bound to use the utmost good faith and
fair dealing in all his relationships with the corporation’’
(internal quotation marks omitted)); Mallory v. Mallory
Wheeler Co., 61 Conn. 131, 139, 23 A. 708 (1891) (direc-
tors of company have fiduciary relationship with com-
pany and, consistent with that relationship, ‘‘have no
right under any circumstances to use their official posi-
tions for their own benefit or the benefit of any one
except the corporation itself’’). Furthermore, we note
that, as a member and manager of BAHR, the plaintiff
held a fiduciary relationship with BAHR and was bound
by that duty as delineated by statute. See General Stat-
utes (Rev. to 2017) §§ 34-141 and 34-255h.12 Because of
the plaintiff’s status, he owed a fiduciary duty to BAHR,
‘‘regardless of whether that duty had been specifically
so labeled in the complaint.’’ Murphy v. Wakelee, supra,
399 n.2; see Practice Book § 10-4 (‘‘[i]t is unnecessary
to allege any promise or duty which the law implies
from the facts pleaded’’).
In addition, we reject the plaintiff’s argument that
BAHR’s allegations were an attempt to state a cause of
action for ‘‘misappropriation’’ based on its use of that
term in its pleadings to describe the plaintiff’s conduct.
As the plaintiff correctly notes, our law does not recog-
nize misappropriation as a stand-alone tort claim. But
see General Statutes §§ 35-51 (b) and 35-53 (defining
‘‘[m]isappropriation’’ as cause of action specifically con-
cerning misappropriation of trade secrets and providing
for monetary damages under Uniform Trade Secrets
Act, General Statutes § 35-50 et seq.). We believe, how-
ever, that the plaintiff’s emphasis on BAHR’s use of the
term ‘‘misappropriation’’ is misplaced. BAHR’s allega-
tion—that the plaintiff ‘‘misappropriated’’ funds—is
simply a recitation of facts describing conduct in sup-
port of its claim of breach of fiduciary duty. Indeed,
this court has also used the term ‘‘misappropriation’’
to summarize factual allegations that a defendant
breached his fiduciary duty by using company funds to
personally benefit himself. See Papallo v. Lefebvre, 172
Conn. App. 746, 755, 161 A.3d 603 (2017) (in describing
claim of breach of fiduciary duty, noting that plaintiff
alleged in operative complaint ‘‘that the defendant mis-
appropriated LLC revenues and engaged in fraudulent
conduct by inaccurately reporting those revenues and
expenses’’). In characterizing the plaintiff’s conduct as a
misappropriation of company assets, BAHR sufficiently
described ‘‘the acts or omissions it believed would sup-
port a determination of liability under [its counter-
claim].’’ Commerce Park Associates, LLC v. Robbins,
193 Conn. App. 697, 734, 220 A.3d 86 (2019), cert. denied
sub nom. Robbins Eye Center, P.C. v. Commerce Park
Associates, LLC, 334 Conn. 912, 221 A.3d 447 (2020),
and cert. denied sub nom. Robbins Eye Center, P.C. v.
Commerce Park Associates, LLC, 334 Conn. 912, 221
A.3d 448 (2020).
On the basis of the foregoing, we find no merit in
the plaintiff’s argument that BAHR’s counterclaim is
legally insufficient for a failure to state a claim upon
which relief can be granted. To the contrary, BAHR
sufficiently alleged facts that state a claim for breach
of fiduciary duty. Accordingly, we reject the plain-
tiff’s claim.
II
The plaintiff next claims that the court improperly
applied a six year statute of limitations to BAHR’s coun-
terclaim pursuant to General Statutes § 52-576.13 The
plaintiff argues that, because the counterclaim sounds
in tort, the court was bound to apply the three year
statute of limitations of General Statutes § 52-577.14 In
response, BAHR asserts that its counterclaim sets forth
an action for an accounting and reasons that, because
an accounting is an equitable claim, the court properly
applied a six year statute of limitations. We agree with
the plaintiff.
A
Before addressing the plaintiff’s claim, we note that
the parties dispute whether BAHR’s counterclaim
sounds in tort or an accounting. Because each of these
causes of action is governed by a different statute of
limitations, resolving the plaintiff’s claim necessarily
involves an interpretation of the pleadings, our review
of which is plenary. See Grenier v. Commissioner of
Transportation, supra, 306 Conn. 536. We conclude
that, although BAHR has sufficiently alleged and proven
a claim of breach of fiduciary duty, BAHR’s counter-
claim does not set forth a cause of action for an
accounting.
‘‘An accounting is defined as an adjustment of the
accounts of the parties and a rendering of a judgment
for the balance ascertained to be due. . . . Courts of
equity have original jurisdiction to state and settle
accounts, or to compel an accounting, where a fiduciary
relationship exists between the parties and the defen-
dant has a duty to render an account. . . . In an equita-
ble proceeding, the trial court may examine all relevant
factors to ensure that complete justice is done. . . .
The determination of what equity requires in a particu-
lar case, the balancing of equities, is [therefore] a matter
for discretion of the trial court.’’ (Citations omitted;
internal quotation marks omitted.) Papallo v. Lefebvre,
supra, 172 Conn. App. 762–63. ‘‘An accounting is not
available in an action where the amount due is readily
ascertainable. Equity will ordinarily take jurisdiction to
settle the account if the facts create a reasonable doubt
whether adequate relief may be obtained at law.’’ (Inter-
nal quotation marks omitted.) Mankert v. Elmatco Prod-
ucts, Inc., 84 Conn. App. 456, 460, 854 A.2d 766, cert.
denied, 271 Conn. 925, 859 A.2d 580 (2004).
‘‘The general rule is that a prior demand by the plain-
tiff for an accounting and a refusal by the defendant to
account is a prerequisite to the commencement of an
action for an accounting.’’ (Internal quotation marks
omitted.) Episcopal Church in the Diocese of Connecti-
cut v. Gauss, 302 Conn. 408, 452 n.30, 28 A.3d 302 (2011),
cert. denied, 567 U.S. 924, 132 S. Ct. 2773, 183 L. Ed.
2d 653 (2012). ‘‘To support an action of accounting,
one of several conditions must exist. There must be a
fiduciary relationship, or the existence of a mutual and/
or complicated accounts, or a need of discovery, or
some other special ground of equitable jurisdiction such
as fraud.’’ (Emphasis in original; internal quotation
marks omitted.) Mankert v. Elmatco Products, Inc.,
supra, 84 Conn. App. 460.
As this court explained in Zuch v. Connecticut
Bank & Trust Co., 5 Conn. App. 457, 461–62, 500 A.2d
565 (1985), ‘‘[w]hile there are cases which hold other-
wise, the vast weight of authority in this jurisdiction
requires the allegation of a demand and refusal before
a party may successfully invoke the remedy of an
accounting. Such a conclusion is in accord . . . with
the traditional understanding of an accounting as a rem-
edy . . . . Furthermore, the requirement of such an
allegation, as a practical matter, may prevent useless
litigation.’’ (Citations omitted.)
We believe that the legal principles espoused by this
court in Zuch are dispositive. Absent from BAHR’s
counterclaim are any allegations that it either made a
demand of the plaintiff to furnish an accounting or that
the plaintiff refused its demand. Instead, BAHR merely
requested, in its prayer for relief, ‘‘[a]n accounting of all
BAHR funds [the] plaintiff misappropriated.’’ Although
BAHR may have requested an accounting in its prayer
for relief, doing so does not convert that request into
an actionable claim for an accounting in the absence
of the necessary allegations. See Discover Bank v. Hill,
150 Conn. App. 164, 172–73 n.8, 93 A.3d 159 (‘‘[t]he
prayer for relief does not constitute a cause of action’’),
cert. denied, 312 Conn. 924, 94 A.3d 1203 (2014).
In addition, it is clear from the record that all of
BAHR’s financial information was available to it by the
time it filed its counterclaim, as evidenced by its calcula-
tion of the specific amount of money that the plaintiff
had misappropriated. As conceded by Collins at trial,
he was able to reconstruct BAHR’s finances both
through the documents provided by the plaintiff and
the records obtained by banking institutions.15 BAHR
received further accounting information from the plain-
tiff through discovery. A claim for an accounting was,
therefore, not available to BAHR because it could ascer-
tain the amount of money that it was due from the
plaintiff. See Papallo v. Lefebvre, supra, 172 Conn. App.
763 (‘‘[a]n accounting is not available in an action where
the amount due is readily ascertainable’’ (internal quota-
tion marks omitted)).
Upon our plenary review of the pleadings, we reject
BAHR’s argument that its counterclaim sets forth an
action for an accounting. BAHR properly alleged, and
sufficiently proved, that the plaintiff breached a fidu-
ciary duty. BAHR did not, however, properly allege that
the plaintiff’s breach of that duty necessitated an
accounting. BAHR’s failure to allege any facts that it
both demanded an accounting from the plaintiff and
that the plaintiff refused its demand is fatal. Further-
more, the record reflects that the plaintiff’s breach of
his fiduciary duty did not prevent BAHR from ascertain-
ing the amount of money that the plaintiff misappropri-
ated. As discussed at length in part I of this opinion,
however, we conclude that BAHR’s counterclaim prop-
erly states a claim for breach of fiduciary duty.16
B
Having determined that BAHR’s counterclaim sets
forth a claim for breach of fiduciary duty, we now turn
to the plaintiff’s claim that the court improperly applied
a six year statute of limitations. We agree.
We begin by setting forth the applicable standard of
review. ‘‘The determination of which, if any, statute of
limitations applies to a given action is a question of
law over which our review is plenary.’’ Government
Employees Ins. Co. v. Barros, 184 Conn. App. 395, 398,
195 A.3d 431 (2018).
In its memorandum of decision, the court rejected
the plaintiff’s special defense that BAHR’s counterclaim
was barred by the three year statute of limitations pro-
vided under § 52-577. The court instead concluded that,
because it found that the plaintiff did not commit lar-
ceny under the first count of the counterclaim; see
footnote 9 of this opinion; ‘‘the [three year] [statute of]
limitations for an action based on a tort, [§ 52-577], is
inapplicable. Rather, a six year limitation, [under § 52-
576], applies.’’
Our courts have consistently held that because
breach of fiduciary duty is an action that sounds in tort,
such claims are governed by a three year statute of
limitations pursuant to § 52-577. See Flannery v. Singer
Asset Finance Co., LLC, 312 Conn. 286, 290 n.4, 94 A.3d
553 (2014); Pasco Common Condominium Assn., Inc.
v. Benson, 192 Conn. App. 479, 514–15, 218 A.3d 83
(2019); Ahern v. Kappalumakkel, 97 Conn. App. 189,
192 n.3, 903 A.2d 266 (2006). As previously discussed,
BAHR’s counterclaim unambiguously states a claim for
breach of fiduciary duty. Contrary to the trial court’s
determination, § 52-576 does not apply because BAHR’s
counterclaim does not set forth a cause of action for
an accounting. See part II A of this opinion. Therefore,
BAHR’s counterclaim was governed by § 52-577, not
§ 52-576. Accordingly, we conclude that the court
improperly applied a six year statute of limitations to
BAHR’s counterclaim for breach of fiduciary duty.
Because the question of whether the plaintiff’s tortious
conduct fell within the three year limitation period
implicates issues of fact, the trial court’s judgment must
be reversed and remanded for further proceedings to
resolve those factual issues.
III
The plaintiff next claims that the court improperly
rejected his application for a dissolution of BAHR pur-
suant to § 34-267 (a) (5) on the ground of oppressive
conduct by Collins.17 In response, the defendants assert
that none of the actions taken by Collins amounted to
oppression.18 We conclude that the court applied an
incorrect legal standard in evaluating the plaintiff’s
claim under § 34-267 (a) (5). We further conclude that
a remand for a new trial on that claim is warranted in
the present case.
We begin by setting forth the legal principles govern-
ing our review of this claim. On appeal, the plaintiff
challenges the legal standard employed by the trial
court. As such, ‘‘the trial court’s determination of the
proper legal standard in any given case is a question
of law subject to our plenary review.’’ Fish v. Fish, 285
Conn. 24, 37, 939 A.2d 1040 (2008).
A
Section 34-267 (a) provides that a limited liability
company is to be dissolved, and its ‘‘activities and affairs
must be wound up’’ in five different circumstances.
Relevant to this claim, subdivision (5), provides the
following circumstance: ‘‘On application by a member,
the entry by the Superior Court for the judicial district
where the principal office of the limited liability com-
pany is located, of an order dissolving the company on
the grounds that the managers or those members in
control of the company: (A) Have acted, are acting or
will act in a manner that is illegal or fraudulent; or (B)
have acted or are acting in a manner that is oppressive
and was, is, or will be directly harmful to the applicant
. . . .’’ General Statutes § 34-267 (a) (5). Neither this
court nor our Supreme Court has had the opportunity
to define oppression as that term has been utilized in
§ 34-267 since its inception.
Thus, at the outset, we note that the plaintiff’s claim
necessarily involves interpreting and constructing a
statute. ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In seeking to determine
that meaning, General Statutes § 1-2z directs us first to
consider 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. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Gilmore v.
Pawn King, Inc., 313 Conn. 535, 542–43, 98 A.3d 808
(2014).
1
Turning to the statute at issue in the present case,
we note that the Connecticut Uniform Limited Liability
Company Act (CULLCA), General Statutes § 34-243 et
seq., does not define ‘‘oppression.’’ The term ‘‘oppres-
sion,’’ likewise, does not appear in any section of title
34 of the General Statutes, other than § 34-267 (a) (5).
Furthermore, the predecessor to the current revision
of § 34-267 did not delineate oppression as a basis for
seeking judicial dissolution but, instead, empowered
the Superior Court to order a dissolution of a limited
liability company at its discretion, ‘‘whenever it is not
reasonably practicable to carry on the business in con-
formity with the articles of organization or operating
agreement.’’ General Statutes (Rev. to 2017) § 34-207.19
Because the text of the CULLCA is not plain, we now
turn to other materials in an effort to ascertain the
legislature’s intent. See State v. Pond, 315 Conn. 451,
466–67, 108 A.3d 1083 (2015). Our research yields no
definition of oppression in other related statutes. See
General Statutes §§ 33-896 and 33-1187 (providing for
judicial dissolution of corporation based on Superior
Court finding that majority shareholder engaged in
oppressive conduct). A review of the legislative history
of the CULLCA has also afforded little guidance.
‘‘Because the statute and its predecessors did not define
the term [‘oppression’], and the legislative history of
the statute is unilluminating, that task was left to the
courts.’’ State v. Cyr, 291 Conn. 49, 56, 967 A.2d 32
(2009); see also General Statutes § 34-243j (‘‘[u]nless
displaced by particular provisions of sections 34-243
to 34-283d, inclusive, the principles of law and equity
supplement sections 34-243 to 34-283d, inclusive’’).
2
To begin our examination of extratextual sources,
we believe it prudent to provide a review of the history
of the oppression doctrine. It is important to emphasize
that, in the context of corporation law, ‘‘oppression’’ is
a strictly technical term. Black’s Law Dictionary (11th
Ed. 2019), p. 1319, defines ‘‘oppression’’ in this context
as the ‘‘[u]nfair treatment of minority shareholders
([especially] in a close corporation) by the directors or
those in control of the corporation.’’ The history of the
oppression doctrine reflects this specialized definition.
As the modern corporate world began to take form
during the nineteenth century, courts recognized that
a pure majority rule for evaluating majority shareholder
behavior ‘‘would lead to unfair results for minority
shareholders’’ and, as a result, ‘‘used the trust metaphor
to impose on directors a fiduciary duty to serve all of
the shareholders of the corporation, not just a select
group.’’ (Emphasis in original.) D. Smith, ‘‘The Share-
holder Primacy Norm,’’ 23 J. Corp. L. 277, 310 (1998).
By the late nineteenth and early twentieth centuries,
courts developed the oppression doctrine to reach con-
duct that the doctrines of ultra vires, fraud, and illegality
did not address. See id., 310–22 (discussing history and
development of oppression doctrine). Indeed, courts
remained reluctant to label majority shareholder con-
duct as fraudulent or to extend established legal doc-
trines to encompass such conduct, finding these ‘‘tradi-
tional grounds for imposing liability . . . too
restrictive.’’ Id., 314, 319. Consequentially, courts ‘‘con-
tinued to redress the concerns of minority shareholders,
increasingly under the rubric of minority oppression.’’
Id., 314. Well into the twentieth century, oppression
was cited as a ground for dissolution in the Illinois
and Pennsylvania corporations acts in 1933, the Model
Business Corporation Act of 1946, and the English Com-
panies Act of 1948. See R. Thompson, ‘‘The Sharehold-
er’s Cause of Action for Oppression,’’ 48 Bus. Law. 699,
709 (1993). Although the doctrine of oppression was
founded at common law; see D. Smith, supra, 23 J.
Corp. 320–21; it eventually developed into ‘‘the principal
vehicle used by legislatures, courts, and litigants to
address the particular needs of close corporations.’’ R.
Thompson, supra, 708.
3
As we have previously discussed, the legislative his-
tory does little to inform us of the legislature’s intended
definition of oppression under the act. A summary of
the CULLCA notes that ‘‘the bill requires considering the
need to promote uniformity with other states regarding
LLC law when applying and construing its provisions
. . . .’’ Office of Legislative Research, Bill Analysis, Sub-
stitute House Bill No. 5259, An Act Concerning Adoption
of the Connecticut Uniform Limited Liability Company
Act (April 28, 2016); see General Statutes § 34-283 (‘‘[i]n
applying and construing the provisions of the [CUL-
LCA], consideration must be given to the need to pro-
mote uniformity of the law with respect to its subject
matter among states that enact it’’). In doing so, the
legislature adopted, in full, the language of the related
section of the Revised Uniform Limited Liability Com-
pany Act (RULLCA). See Rev. Unif. Limited Liability
Company Act of 2006 (2013) § 701, 6C U.L.A. 133 (2016);
see also General Statutes § 34-267. The only difference
between the related section of the RULLCA, § 701, and
§ 34-267 is the legislature’s retention of a cause for
dissolution as provided in § 34-267’s predecessor stat-
ute, General Statutes (Rev. to 2017) § 34-207. See
Rev.Unif. Limited Liability Company Act of 2006 (2013)
§ 701, supra, 6C U.L.A. 133; General Statutes (Rev. to
2017) § 34-207. Because the legislature substantially
adopted the major provisions of the RULLCA, we may
look to the commentaries of that uniform act for further
guidance in ascertaining the legislature’s intent. See
Connecticut National Bank v. Giacomi, 233 Conn. 304,
320, 659 A.2d 1166 (1995) (where legislative history does
not reveal legislature’s intent in adoption of uniform
act, ‘‘we may be assisted in ascertaining that intent by
looking to commentaries’’ of uniform act).
As stated therein, the commentary explains that the
RULLCA ‘‘does not define ‘oppressively,’ but ‘oppres-
sion’ ‘is a concept [well grounded] in the law of close
corporations.20 . . . In many jurisdictions the concept
equates to or at least includes the frustration of the
plaintiff’s reasonable expectations.’’ (Citations omitted;
footnote added.) See Rev. Unif. Limited Liability Com-
pany Act of 2006 (2013) § 701, comment, supra, 6C
U.L.A. 135. Consistent with the RULLCA commentary’s
definition, in R.D. Clark & Sons, Inc. v. Clark, 194
Conn. App. 690, 706–707, 222 A.3d 515 (2019), this court
recently defined ‘‘oppression,’’ as used in General Stat-
utes § 33-896 of the Connecticut Business Corporation
Act, as the following: ‘‘Oppression in the context of a
dissolution suit suggests a lack of probity and fair deal-
ing in the affairs of a company to the prejudice of
some of its members, or a visible departure from the
standards of fair dealing and a violation of fair play as
to which every shareholder who entrusts his money to
a company is entitled. . . . [O]ppressive conduct in the
corporate dissolution context . . . arise[s] when the
controlling directors’ conduct substantially defeats
expectations that, objectively viewed, were both rea-
sonable under the circumstances and were central to
the petitioner’s decision to join the firm.’’ (Internal quo-
tation marks omitted.)
We note, however, that the broad definition of oppres-
sion, as stated in Clark, presents a conundrum that
other jurisdictions have encountered. Both courts and
scholars have underlined two competing standards that
have been employed for analyzing whether conduct
rises to the level of oppression: the ‘‘fair dealings’’ stan-
dard and the ‘‘reasonable expectations’’ standard. See,
e.g., Ritchie v. Rupe, 443 S.W.3d 856, 865 (Tex. 2014);
Scott v. Trans-System, Inc., 148 Wash. 2d 701, 710–11, 64
P.3d 1 (2003) (en banc); cf. Baur v. Baur Farms, Inc.,
832 N.W.2d 663, 670–71 (Iowa 2013); F. O’Neal & R.
Thompson, Oppression of Minority Shareholders and
LLC Members (Rev. 2d Ed. 2011) § 7:11, pp. 7-113
through 7-117; see generally D. Moll, ‘‘Shareholder
Oppression In Close Corporations: The Unanswered
Question of Perspective,’’ 53 Vand. L. Rev. 749 (2000)
(discussing competing standards used for oppression
doctrine).
Under the ‘‘fair dealings’’ standard, oppression occurs
when the conduct complained of is ‘‘burdensome, harsh
and wrongful’’ and evinces either ‘‘a lack of probity and
fair dealing in the affairs of a company to the prejudice
of some of its members’’ or is ‘‘a visible departure from
the standards of fair dealing, and a violation of fair play
on which every shareholder who entrusts his money to
a company is entitled to rely.’’ (Internal quotation marks
omitted.) Ritchie v. Rupe, supra, 443 S.W.3d 865. This
test has been described as a focus ‘‘on preserving the
majority’s discretion to make decisions in furtherance
of a legitimate business purpose—a standard that is
typically satisfied when majority actions benefit the
corporation.’’ D. Moll, supra, 53 Vand. L. Rev. 762. Some
courts employing the ‘‘fair dealings’’ standard have,
however, cautioned that even though a majority share-
holder’s conduct was in furtherance of a legitimate busi-
ness purpose, such conduct may be oppressive unless
the minority shareholder ‘‘cannot demonstrate [that]
a less harmful alternative’’ was available. Daniels v.
Thomas, Dean & Hoskins, Inc., 246 Mont. 125, 137–38,
804 P.2d 359 (1990).
In contrast, the ‘‘reasonable expectations’’ standard
analyzes the conduct at issue from the perspective of
the minority shareholder. As one Connecticut Superior
Court decision aptly stated, oppression under this test
‘‘should be deemed to arise only when the majority
conduct substantially defeats expectations that, objec-
tively viewed, were both reasonable under the circum-
stances and were central to the petitioner’s decision to
join the venture.’’ (Internal quotation marks omitted.)
Booth v. Waltz, Superior Court, judicial district of Hart-
ford, Docket No. CV-XX-XXXXXXX-S (December 14, 2012);
see id. (defining oppression as that term appears in
Connecticut Business Corporation Act, General Stat-
utes § 33-600 et seq.). ‘‘This approach takes into account
the fact that shareholders in close corporations may
have expectations that differ substantially from those
of shareholders in public corporations’’ and further
‘‘recognizes the fact sensitive nature of judicial inquiry
into this area and the need to examine the understand-
ing of the parties concerning their role in corporate
affairs.’’ (Internal quotation marks omitted.) Hendrick
v. Hendrick, 755 A.2d 784, 791 (R.I. 2000).
No court has had the occasion to directly address
the issue of which test applies to claims of oppression
pursuant to the RULLCA. We are convinced that, under
the CULLCA, the ‘‘reasonable expectations’’ test is the
proper standard to be applied for analyzing claims of
oppression under § 34-267 (a) (5). Our conclusion pri-
marily rests on the commentary provided in § 701 of
the RULLCA. As previously noted, the commentary
emphasizes that ‘‘[i]n many jurisdictions the concept
[of oppression] equates to or at least includes the frus-
tration of the plaintiff’s reasonable expectations.’’ Rev.
Unif. Limited Liability Company Act of 2006 (2013)
§ 701, comment, 6C U.L.A. 135. In addition, the commen-
tary provides guidance for assessing whether conduct
is oppressive. Specifically, that commentary states that
‘‘a court considering a claim of oppression by an LLC
member should consider, with regard to each reason-
able expectation invoked by the plaintiff, whether the
expectation: (i) contradicts any term of the operating
agreement or any reasonable implication of any term
of that agreement; (ii) was central to the plaintiff’s deci-
sion to become a member of the limited liability com-
pany or for a substantial time has been centrally
important in the member’s continuing membership; (iii)
was known to other members, who expressly or
impliedly acquiesced in it; (iv) is consistent with the
reasonable expectations of all the members, including
expectations pertaining to the plaintiff’s conduct; and
(v) is otherwise reasonable under the circumstances.’’
Id., § 701, comment. We view this guidance as a tacit
adoption of the ‘‘reasonable expectations’’ standard for
oppression claims under the RULLCA. We see no cause
or reason to suggest that the legislature intended for a
different standard to apply under § 34-267 (a) (5).21
We further note that the majority of courts in other
jurisdictions have embraced the ‘‘reasonable expecta-
tions’’ standard, or some iteration thereof, for claims
of oppression in the close corporation context. See,
e.g., Baur v. Baur Farms, Inc., supra, 832 N.W.2d 673;
Bontempo v. Lare, 444 Md. 344, 365–66, 119 A.3d 791
(2015); Gunderson v. Alliance of Computer Profession-
als, Inc., 628 N.W.2d 173, 186 (Minn. App. 2001), appeal
dismissed, (Minn. August 17, 2001); Brenner v. Berkow-
itz, 134 N.J. 488, 506–507, 634 A.2d 1019 (1993); Matter
of Kemp & Beatley, Inc., 64 N.Y.2d 63, 73, 473 N.E.2d
1173, 484 N.Y.S.2d 799 (1984); Meiselman v. Meiselman,
309 N.C. 279, 290, 307 S.E.2d 551 (1983); see also Ritchie
v. Rupe, supra, 443 S.W.3d 901 (Guzman, J., dissenting)
(collecting cases); F. O’Neal & R. Thompson, Oppres-
sion of Minority Shareholders and LLC Members (2d
Rev. 2011) § 7:12, pp. 7-113 through 7-117 (collecting
cases and noting that Michigan appellate court’s rejec-
tion of ‘‘reasonable expectations’’ standard was ‘‘out of
step with interpretations in the rest of the country in
this area over the last three decades’’).
The reasons that have been cited for this widespread
acceptance of the ‘‘reasonable expectations’’ standard
largely concern the unique nature of a closely held
entity. See F. O’Neal & R. Thompson, Oppression of
Minority Shareholders and LLC Members (Rev. 2d Ed.
2011), § 7:12, pp. 7-113 through 7-118. ‘‘Unlike their
counterparts in large corporations, minority sharehold-
ers in [close] corporations often expect to participate in
management and operations.’’ Topper v. Park Sheraton
Pharmacy, Inc., 107 Misc. 2d 25, 33, 433 N.Y.S.2d 359
(1980). For instance, ‘‘[i]t is widely understood that,
in addition to supplying capital to a contemplated or
ongoing enterprise and expecting a fair and equitable
return, parties comprising the ownership of a close
corporation may expect to be actively involved in its
management and operation . . . . The small owner-
ship cluster seeks to ‘contribute their capital, skills,
experience and labor’ toward the corporate enterprise
. . . .’’ (Citations omitted.) Matter of Kemp & Beatley,
Inc., supra, 64 N.Y.2d 71.
Like minority shareholders of a close corporation;
see footnote 20 of this opinion; these unique features
of an LLC therefore place a minority member in a special
position, unlike his or her counterparts in a publicly
traded company. As the Supreme Court of New Jersey
explained in interpreting a statute with similar lan-
guage, minority members of an LLC face a ‘‘unique
vulnerability’’ for a number of reasons: ‘‘First, because
the majority has a controlling interest, it has the power
to dictate to the minority the manner in which the
corporation is run. . . . Second, shareholders in close
corporations frequently consist of family members or
friends and once the personal relationship is destroyed,
the company deteriorates. . . . Third, unlike share-
holders in larger corporations, minority shareholders
in a close corporation cannot readily sell their shares
when they become dissatisfied with the management
of the corporation. . . . Indeed, the discord in the cor-
poration makes the minority stock even more difficult
to sell.’’ (Citations omitted; internal quotation marks
omitted.) Brenner v. Berkowitz, supra, 134 N.J. 505.
Thus, ‘‘[f]ocusing on the harm to the minority share-
holder reflects a departure from the traditional focus,
which was solely on the wrongdoing by those in control,
and reflects the current trend of recognizing the special
nature of close corporations.’’ Id., 509.
 Given that special nature and the unique position
that a minority member holds, to focus on whether a
majority member’s conduct served a ‘‘legitimate busi-
ness purpose’’ would, in our view, frustrate the protec-
tions that the oppression doctrine was intended to
afford. See F. O’Neal & R. Thompson, Oppression of
Minority Shareholders and LLC Members (Rev. 2d Ed.
2011) § 7:12, pp. 7-116 through 7-118. Thus, even when a
majority member’s conduct serves a legitimate business
purpose that directly benefits the LLC, that conduct
may be in direct contravention to a minority member’s
reasons for committing to the venture or the expecta-
tions that developed over time. Those reasons may have
consisted of employment, a share of company earnings,
or meaningful participation in its operations. See Matter
of Kemp & Beatley, Inc., supra, N.Y.2d 72–73; see also
Gunderson v. Alliance of Computer Professionals, Inc.,
supra, 628 N.W.2d 189. The majority member’s reasons
for excluding a minority member from any of those
expectations may benefit the LLC and could very well
have not been achieved by less harmful means. In such
circumstances, however, the minority member is left
with ‘‘neither the power to dissolve the business unit
at will, as does a partner in a partnership, nor does he
have the ‘way out’ which is open to a shareholder in a
publicly held corporation, the opportunity to sell his
shares on the open market. . . . Thus, the illiquidity of
a minority shareholder’s interest in a close corporation
renders him vulnerable to exploitation by the majority
shareholders.’’ (Citation omitted.) Meiselman v. Meisel-
man, supra, 309 N.C. 291. In effect, the majority member
is placed ‘‘in an enhanced power position to use the
minority’s investment without paying for it. . . . As a
consequence, a [member] challenging the majority in a
close corporation finds himself on the horns of a
dilemma, he can neither profitably leave nor safely stay
with the corporation. In reality, the only prospective
buyer turns out to be the majority [member].’’ (Citation
omitted; internal quotation marks omitted.) Brenner v.
Berkowitz, supra, 134 N.J. 505.
Our conclusion is further buttressed by the fact that
courts employing the ‘‘reasonable expectations’’ stan-
dard have looked to factors that closely track the guid-
ance provided by the commentary of § 701 of the
ULLCA. For instance, in assessing a minority member’s
reasonable expectations, courts have noted the rele-
vance of the operating agreements of LLCs (or other
written and oral agreements); see Gunderson v. Alli-
ance of Computer Professionals, Inc., supra, 628
N.W.2d 185; whether the expectations were ‘‘substan-
tial’’; see Meiselman v. Meiselman, supra, 309 N.C.
298–99; whether those expectations were both known
to and consented by the other members; see id.; whether
the expectations were consistent with the reasonable
expectations of all the members, including expectations
pertaining to the plaintiff’s conduct; see Gimpel v.
Bolstein, 125 Misc. 2d 45, 52, 477 N.Y.S.2d 1014 (1984);
and whether the expectations were otherwise reason-
able under the circumstances. See Harris v. Testar,
Inc., 243 N.C. App. 33, 39, 777 S.E.2d 776 (2015).
In light of the foregoing, we are persuaded that a
proper analysis of an oppression claim requires the
court to assess that claim under the ‘‘reasonable expec-
tations’’ standard. Accordingly, we conclude that
oppression, under the CULLCA, properly is analyzed
under that standard. Thus, a majority member’s conduct
is oppressive if that conduct substantially defeats the
minority member’s expectations which, objectively
viewed, were both reasonable under the circumstances
and were central to his or her decision to join the
venture or developed over time.
3
Having concluded that ‘‘oppression’’ under § 34-267
(a) (5) should be assessed by the ‘‘reasonable expecta-
tions’’ standard, we believe it prudent to expand on the
contours of that doctrine. As one court noted, ‘‘the key
is reasonable.’’ (Emphasis in original; internal quotation
marks omitted.) Meiselman v. Meiselman, supra, 309
N.C. 298. In our view, the RULLCA commentary sets
forth a general list of factors that courts should consider
when determining the reasonableness of a minority
member’s expectation. As previously stated, these fac-
tors include ‘‘whether the expectation: (i) contradicts
any term of the operating agreement or any reasonable
implication of any term of that agreement; (ii) was cen-
tral to the plaintiff’s decision to become a member of
the limited liability company or for a substantial time
has been centrally important in the member’s continu-
ing membership; (iii) was known to other members,
who expressly or impliedly acquiesced in it; (iv) is con-
sistent with the reasonable expectations of all the mem-
bers, including expectations pertaining to the plaintiff’s
conduct; and (v) is otherwise reasonable under the cir-
cumstances.’’ Rev. Unif. Limited Liability Company Act
of 2006 (2013) § 701, comment, 6C U.L.A., supra, p. 135.
There are a number of reasonable expectations that
may drive a minority member to join an LLC by commit-
ting capital or expertise. ‘‘It is widely understood that,
in addition to supplying capital to a contemplated or
ongoing enterprise and expecting a fair and equal
return, parties comprising the ownership of a close
corporation may expect to be actively involved in its
management and operation . . . .’’ (Citation omitted.)
Matter of Kemp & Beatley, Inc., supra, 64 N.Y.2d 71.
‘‘In fact, because of the unique characteristics of close
corporations, employment is often a vital component
of a [close corporation] [member’s] return on invest-
ment and a principal source of income.’’ Gunderson v.
Alliance of Computer Professionals, Inc., supra, 628
N.W.2d 189; see Brenner v. Berkowitz, supra, 134
N.J. 509.
Other reasonable expectations have included ‘‘possi-
ble entitlement to dividends, voting at shareholders’
meetings, and access to corporate records.’’ Gimpel v.
Bolstein, supra, 125 Misc. 2d 53; see also State ex rel.
Costelo v. Middlesex Banking Co., 87 Conn. 483, 484–85,
88 A. 861 (1913) (‘‘[t]he right of inspection of the books
and records of a corporation at reasonable times and
for proper purposes is a common-law privilege incident
to the ownership of shares in a corporation’’); cf. Gen-
eral Statutes § 34-255i and General Statutes (Rev. to
2017) § 34-144 (CULLCA and its predecessor, CLLCA,
providing statutory right to member of LLC to inspect
company records). Because employment by an LLC is
typically the main source of income to members in an
LLC—and due to the inherently reasonable expectation
that a minority member is to receive a return on his or
her investment—a change in distribution policy could,
for instance, constitute oppression depending on the
factual circumstances. See Matter of Kemp & Beatley,
Inc., supra, 64 N.Y.2d 74–75 (‘‘[i]t was not unreasonable
for the fact finder to have determined that this change
in [distribution] policy amounted to nothing less than
an attempt to exclude petitioners from gaining any
return on their investment through the mere recharac-
terization of distributions of corporate income’’).
Notwithstanding these examples, the ULLCA factors
also indicate—as do other courts—that the reasonable-
ness of a member’s expectation at the inception of an
LLC may prove unreasonable over time and under par-
ticular circumstances.22 See Meiselman v. Meiselman,
supra, 309 N.C. 298 (noting that reasonable expecta-
tions can be altered over time based on conduct of
shareholders). For example, a minority member may
reasonably expect to be employed by the LLC when
entering into the venture with other members. That
expectation, however, becomes patently unreasonable
when, in light of the minority member’s own miscon-
duct, he or she is terminated from that employment with
the LLC. ‘‘Accordingly, an expectation of continuing
employment is not reasonable and oppression liability
does not arise when the shareholder-employee’s own
misconduct or incompetence causes the termination
of employment.’’ Gunderson v. Alliance of Computer
Professionals, Inc., supra, 628 N.W.2d 192; see Gimpel
v. Bolstein, supra, 125 Misc. 2d 52–53. This also extends
to a member’s expectation that a relative will be
employed. See Brenner v. Berkowitz, supra, 134 N.J.
517–18 (‘‘[W]hen the employment of the shareholder’s
relative is at issue, the shareholder will find it even
more difficult to establish that those in control of a
corporation acted oppressively. A heightened burden
exists particularly in the case of a relative who was not
employed at the beginning of the corporate relation-
ship.’’) Moreover, if a minority member does not
actively pursue those reasonable expectations, a court
could find that the expectation has been forfeited. See
Brickman v. Brickman Estate at the Point, Inc., 253
A.D. 2d 812, 813, 677 N.Y.S.2d 600 (minority share-
holders were not oppressed by majority shareholders’
failure to provide them with corporate records where
minority shareholders failed to seek responsibilities in
management or express interest in taking part in share-
holders’ meetings), leave to appeal denied, 92 N.Y.2d
817, 707 N.E.2d 443, 684 N.Y.S.2d 488 (1998).
In providing these examples, we must emphasize that
whether a minority member’s expectation is both rea-
sonable and was defeated ‘‘will depend on the circum-
stances in the individual case.’’ Matter of Kemp & Beat-
ley, Inc., supra, 64 N.Y.2d 73. Consequentially, making
that determination requires the court to engage in a
fact intensive inquiry. See Gunderson v. Alliance of
Computer Professionals, Inc., supra, 628 N.W.2d 186
(noting that ‘‘whether a shareholder’s reasonable expec-
tations have been frustrated is essentially a fact issue’’).
4
In addition to a finding of oppression, a court must
determine, pursuant to § 34-267 (a) (5) (B), whether
the oppressive conduct ‘‘was, is, or will be directly
harmful to the applicant . . . .’’ Notwithstanding this
additional requirement, the CULLCA, its legislative his-
tory, and the ULLCA fail to define the harm that was,
is, or will be suffered by the affected member. Generally,
oppression consists of harm in the form of the defeat
of a member’s reasonable expectation. See, e.g., Ritchie
v. Rupe, supra, 443 S.W.3d 866–67 (‘‘[g]enerally, these
[oppression] statutes indicate that ‘oppressive’ actions
involve an abuse of power that harms the rights or
interests of another person or persons’’ (emphasis
added)).
Nevertheless, ‘‘[i]t is a basic tenet of statutory con-
struction that the legislature [does] not intend to enact
meaningless provisions. . . . Because [e]very word
and phrase [of a statute] is presumed to have meaning
. . . [a statute] must be construed, if possible, such
that no clause, sentence or world shall be superfluous,
void or insignificant.’’ (Internal quotation marks omit-
ted.) Lopa v. Brinker International, Inc., 296 Conn.
426, 433, 994 A.2d 1265 (2010). In recognition of that
basic principle, we conclude that the language of § 34-
267 (a) (5) (B) requires a causal connection between
the oppressive conduct and the harm sustained by the
plaintiff-member. This requirement reflects the precept
that, not only must a plaintiff establish that the conduct
in question rose to the level of oppression, but he or
she ‘‘must also demonstrate a nexus between that mis-
conduct and the minority shareholder or her interest
in the corporation. The remedies that a court will apply
will logically depend on the harm to the minority share-
holder or her interest in the corporation. . . . There-
fore, in determining the nexus between the misconduct
and the harm to the shareholder, the court must con-
sider those acts that affect or jeopardize a shareholder’s
stock interest as well as those acts that may be specifi-
cally targeted to the shareholder.’’ (Citation omitted.)
Brenner v. Berkowitz, supra, 134 N.J. 508.
Moreover, the use of the disjunctive ‘‘or’’ in § 34-267
(a) (5) (B) indicates that the legislature intended for a
court to consider harm that is retrospective, active, or
prospective. See State v. Pascucci, 164 Conn. 69, 72,
316 A.2d 750 (1972) (‘‘use of the disjunctive ‘or’ between
the two parts of the statute indicates a clear legislative
intent of separability’’ (internal quotation marks omit-
ted)). Thus, under § 34-267 (a) (5) (B), the harm at issue
is not limited to a particular instance. So long as a
member was harmed, is being harmed, or will be
harmed by the oppressive conduct, such will suffice to
satisfy the statute. We believe that allowing a court to
form a remedy for oppressive behavior based on harm
that has been or will be sustained by a plaintiff is in
accord with the remedial nature that the statute was
intended to provide. As the Supreme Court of New
Jersey explained, ‘‘[a] requirement that the [oppressive]
conduct must be [ongoing] frustrates [the legislative
purpose] because it allows the majority to abuse the
minority so long as the abuse ceases prior to the date
a decision is rendered . . . . Requiring that the con-
duct be continuing would, therefore, work a grave injus-
tice on the minority shareholder by depriving her of
a remedy when her reasonable expectations for the
corporation are thwarted.’’ (Citation omitted; internal
quotation marks omitted.) Brenner v. Berkowitz, supra,
134 N.J. 507.
B
Turning to the facts of the present case, we conclude
that the court applied an incorrect legal standard for
assessing a claim alleging ‘‘oppression’’ pursuant to
§ 34-267 (a) (5). For that reason, its determination that
Collins’ conduct was not oppressive cannot stand.
In its memorandum of decision, the court made a
number of factual findings to support its judgment in
favor of Collins and BAHR with respect to the plaintiff’s
claim under § 34-267 (a) (5). First, the court found that
Collins had authority to amend the operating agreement
based on its finding that, pursuant to the original
operating agreement, he maintained a 60 percent inter-
est in BAHR based on the outstanding priority loans
still owed to him by BAHR. The court further found
that Collins, as the majority member in BAHR, properly
used his authority to remove the plaintiff as a manager
of BAHR. Pursuant to § 11 of the amended operating
agreement, Collins had complete control of BAHR
because he was its sole manager.23 The court concluded
that Collins’ conduct in this respect ‘‘was not oppres-
sive, harsh, or wrongful in light of [the plaintiff’s]
unfair dealing.’’
The court further found that Collins’ failure to provide
the plaintiff with financial documents, as required by
the operating agreement, was not harmful to the plain-
tiff. In so finding, the court emphasized that the purpose
of its requirement in the operating agreement was to
enable BAHR’s members to prepare their income tax
statements. The court therefore concluded that the
plaintiff was not harmed in this instance because all of
BAHR’s financial information was provided during the
discovery process.
The court also rejected the plaintiff’s oppression
argument concerning Collins’ termination of the plain-
tiff’s son as an employee of the cafe and concerning
the filing of a report with the Secretary of the State
which omitted the plaintiff as a member of BAHR. The
court reasoned that the plaintiff’s son was terminated
as an at-will employee because Collins believed that
the plaintiff’s son had provided incorrect information
about the cafe’s revenue. It further noted that the failure
to file an accurate report with the Secretary of the State
did ‘‘not appear to have been done with any intent to
harm [the plaintiff]. This omission can be easily reme-
died. No harm has been shown.’’
Thus, the court concluded that the plaintiff failed
to show that BAHR ‘‘should be dissolved under the
provisions of [§ 34-267 (a) (5)]. He has not shown [Col-
lins’] conduct was illegal, oppressive, or in violation of
[the plaintiff’s] rights as a shareholder of BAHR. He has
not shown that Collins has acted or is acting in a manner
that is directly harmful to [the plaintiff]. Rather, the
managerial actions taken by Collins were reasonable
in light of [the plaintiff’s] having used BAHR funds to
pay personal expenses and his having withdrawn
weekly ‘salary’ payments contrary to his agreement
with Collins.’’
To begin, the court’s memorandum of decision
reflects that it did not employ the correct legal standard
for determining whether the defendants’ conduct was
oppressive.24 This, of course, is understandable because
no appellate court in this state has interpreted either
the oppression doctrine or the term ‘‘oppression’’ as it
appears in § 34-267 (a) (5). ‘‘Ordinarily, the trial court’s
failure to apply the correct legal standard . . . results
in a remand to the trial court for application of the
correct standard.’’25 Western Dermatology Consultants,
P.C. v. VitalWorks, Inc., 322 Conn. 541, 563, 153 A.3d
574 (2016). This is so ‘‘unless we conclude that, based
on the evidence, a new trial would be pointless.’’ McDer-
mott v. State, 316 Conn. 601, 611, 113 A.3d 419 (2015).
In light of the evidence and the factual findings made
by the court, we conclude that a new trial is warranted
on the plaintiff’s claim of oppression for all of the com-
plained of conduct except for his termination of employ-
ment. It is clear from the record that the court did not
assess the plaintiff’s claim of oppression by focusing
on his reasonable expectations as a minority member.
Instead, the court improperly concentrated its analysis
on Collins’ conduct as a majority member in response
to the plaintiff’s misconduct as a manager of BAHR.
Notwithstanding the court’s use of an incorrect legal
standard, we believe that a new trial on the particular
issue of the plaintiff’s termination from employment is
unwarranted. See McDermott v. State, supra, 316 Conn.
611. That is so because the reasonable expectations
standard applied to the evidence adduced at trial would
not change the court’s factual findings or conclusion;
specifically, the plaintiff’s misappropriation of BAHR’s
funds would render any expectation of continuing
employment by BAHR or the cafe unreasonable. See
Gunderson v. Alliance of Computer Professionals, Inc.,
supra, 628 N.W.2d 192. Upon our review of the record,
the evidence strongly supports the court’s conclusion
that Collins’ assumption of control over the manage-
ment of the cafe ‘‘was not oppressive . . . in light of
[the plaintiff’s] unfair dealing.’’ In addition, the record
supports the court’s conclusion that Collins had author-
ity to do so pursuant to his majority stake in BAHR.
The plaintiff may very well have reasonably expected
to be employed by the cafe as its manager at the incep-
tion of BAHR, to remain as a manager of BAHR, and
to have unobstructed access to both the cafe’s premises
and its bank accounts. Although those expectations
may have, at one point, been reasonable, ‘‘it must be
recognized that ‘reasonable expectations’ do not run
only one way. To the extent that [the plaintiff] may have
entertained ‘reasonable expectations’ of profit . . . the
other shareholders also entertained ‘reasonable expec-
tations’ of fidelity and honesty from him. All such expec-
tations were shattered when [the plaintiff] stole from
the corporation. His own acts broke all bargains. . . .
Since then, the only expectations he could reasonably
entertain were those of a discovered thief: ostracism
and prosecution.’’ (Citation omitted.) Gimpel v.
Bolstein, supra, 125 Misc. 2d 52.
To this end, we further note that, although it was the
plaintiff’s own misconduct which prompted the com-
plained of acts he has alleged as oppressive, that mis-
conduct does not obviate the need for the court to
consider whether he continued to have reasonable
expectations as a minority member. See Gimpel v.
Bolstein, supra, 125 Misc. 2d 53 (although minority
shareholder embezzled company funds, ‘‘it does not
necessarily follow that the majority shareholders may
treat him as shabbily as they please’’). While the plaintiff
cannot establish oppression based on his termination
of employment—or based on his being prevented from
unfettered access to the cafe or BAHR’s bank
accounts—we emphasize that the plaintiff cannot be
marginalized to the extent that he would be precluded
from realizing what reasonable expectation he still
maintains as a minority member.26 See id., 55 (‘‘While
[the minority shareholder’s] past misdeeds provided
sufficient justification for the majority’s acts to date,
there is a limit to what he can be forced to bear . . . .
The other shareholders need not allow him to return
to employment with the corporation, but they must by
some means allow him to share in the profits.’’ (Cita-
tion omitted.)).
Should the court find that the other acts taken by
Collins were oppressive, the plaintiff’s prior malfea-
sance should not bar his pursuit of an appropriate rem-
edy under § 34-267 (a) (5).27 This is so because, so long
as the plaintiff retains an investment in BAHR, his rea-
sonable expectations include being entitled to certain
minimum rights as a minority member. See Gimpel v.
Bolstein, supra, 125 Misc. 2d 53 (although termination
from employment for embezzling corporate funds was
not oppression, minority shareholder was entitled to
participate as ‘‘stranger’’ which includes ‘‘possible enti-
tlement to dividends, voting at shareholders’ meetings,
and access to corporate records’’). An infringement of
these rights and a bar to any remedy leaves the plaintiff
with a worthless asset. See Brenner v. Berkowitz, supra,
134 N.J. 505; Meiselman v. Meiselman, supra, 309 N.C.
291. We therefore conclude that a remand to the trial
court for a new trial is warranted due to the court’s
failure to apply the correct legal standard as to the
plaintiff’s oppression claim under § 34-267 (a) (5).
The judgment is reversed with respect to the plain-
tiff’s claim for a dissolution of BAHR on the ground of
oppression pursuant to § 34-267 (a) (5) (B), and with
respect to BAHR’s counterclaim for breach of fiduciary
duty to the extent that the court improperly applied a
six year, instead of a three year, statute of limitations,
and the case is remanded for a new trial consistent
with this opinion; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff also appears to assert two other claims, specifically, that
the trial court improperly found that Collins did not breach (1) the operating
agreement or (2) a fiduciary duty. To the extent that the plaintiff asserts
these claims—either independent from, or as a basis for, his claim of oppres-
sion—we conclude that these claims are inadequately briefed and, thus,
decline to review them. It is well established that the appellate courts of
this state ‘‘are not obligated to consider issues that are not adequately
briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond
a bare assertion of the claim, it is deemed to have been waived. . . . In
addition, mere conclusory assertions regarding a claim, with no mention of
relevant authority and minimal or no citations from the record, will not
suffice.’’ (Citations omitted; internal quotation marks omitted.) Connecticut
Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57,
87, 942 A.2d 345 (2008). ‘‘[F]or this court judiciously and efficiently to
consider claims of error raised on appeal . . . the parties must clearly and
fully set forth their arguments in their briefs. We do not reverse the judgment
of a trial court on the basis of challenges to its rulings that have not been
adequately briefed . . . . The parties may not merely cite a legal principle
without analyzing the relationship between the facts of the case and the
law cited.’’ (Internal quotation marks omitted.) Nowacki v. Nowacki, 129
Conn. App. 157, 163–64, 20 A.3d 702 (2011) (per curiam).
The plaintiff’s briefing of the aforementioned claims is deficient in many
respects. Primarily, the plaintiff provides virtually no analysis of his claims.
His principal brief contains only two sentences referencing his claim that
Collins’ refusal to provide BAHR’s financial information was a breach of
the operating agreement and General Statutes § 34-255i. Instead, the relevant
section in the plaintiff’s principal brief appears to primarily focus on Collins
acting in an oppressive manner under § 34-267. See part III of this opinion.
Although the plaintiff appears to provide a more pointed discussion of these
claims in his reply brief, ‘‘we consider an argument inadequately briefed
when it is delineated only in the reply brief.’’ Hurley v. Heart Physicians,
P.C., 298 Conn. 371, 378 n.6, 3 A.3d 892 (2010).
2
The operating agreement defines ‘‘[p]riority [m]ember [l]oans’’ as addi-
tional loans made by members of BAHR ‘‘for the acquisition of assets, build-
out, construction, working capital and other purposes.’’ (Internal quotation
marks omitted.) In addition, priority member loans do not increase any
member’s share of allocations, distributions, or interest, but do constitute
a priority debt obligation of BAHR at an annual 7 percent interest rate.
Importantly, § 11 of the operating agreement provides that ‘‘while any princi-
pal balance remains outstanding and unpaid on any [p]riority [m]ember
[l]oan, any decisions which are to be made by the [m]embers, rather than
the [m]anager, shall be made by a 60 [percent] majority vote or consent of
the [m]embers.’’
3
Of the $149,000 that Collins loaned to BAHR, Collins acquired approxi-
mately $100,000 of that amount through a loan from his bank, UBS, which
was secured by his retirement account.
4
Affixed to the operating agreement was a schedule A detailing each
members’ capital contribution, the priority loan amounts, and their respec-
tive percentage interest in BAHR. That document was initialed and dated
by both Collins and the plaintiff.
5
The plaintiff was the only person who had the ability to issue checks
on behalf of BAHR and was in control of issuing himself checks for his
weekly salary.
6
On appeal, the plaintiff does not challenge the court’s finding that Collins
is a 60 percent stakeholder in BAHR and, therefore, had authority to unilater-
ally amend the operating agreement.
7
The trial court found that, in addition to taking these actions, Collins’
attorney had filed an interim report with the Secretary of the State, which
unintentionally omitted the plaintiff as a member of BAHR.
8
The plaintiff also alleged claims of unpaid wages and theft under General
Statutes §§ 31-72 and 52-564 against BAHR for Collins’ cancellation of the
nine $1000 checks that the plaintiff issued to himself as his weekly salary.
During trial, however, the plaintiff withdrew those claims.
9
BAHR’s counterclaim consisted of two counts. The first count asserted
a claim of larceny in violation of General Statutes § 53a-119, as to which
the court found in favor of the plaintiff. That claim is not a subject of this
appeal. For purposes of clarity, we refer to the second count of BAHR’s
counterclaim—the nature of which is disputed on appeal; see part II of this
opinion—as the counterclaim.
10
The plaintiff’s special defenses stated that (1) any benefits that were
paid to him were authorized by Collins and BAHR, (2) BAHR was estopped
from asserting such counterclaims, (3) BAHR’s second counterclaim was
time barred, and (4) BAHR’s counterclaims failed to state a claim upon
which relief could be granted.
11
We note that, in challenging the legal sufficiency of BAHR’s counter-
claim, the plaintiff only raised his challenge by asserting it as a special
defense in his responsive pleading. The plaintiff did not file a motion to
strike the counterclaim for failure to state a claim upon which relief could
be granted, and he did not raise this issue at any point during the underly-
ing proceedings.
As this court has previously acknowledged, ‘‘there is a split of authority
among our trial court judges with respect to whether failure to state a claim
upon which relief can be granted constitutes a valid special defense.’’ Sharp
Electronics Corp. v. Solaire Development, LLC, 156 Conn. App. 17, 33 n.11,
111 A.3d 533 (2015). We are doubtful that such a practice conforms with
our rules that govern an attack on a pleading for a failure to state a claim.
See Practice Book §§ 10-7 and 10-39 (a); see also Rogan v. Rungee, 165
Conn. App. 209, 215–16 n.3, 140 A.3d 979 (2016) (plaintiff’s filing of answer
with special defense to counterclaim and failure to file motion to strike
resulted in waiver of right to challenge legal sufficiency of counterclaim).
A special defense serves a unique purpose—’’to plead facts that are consis-
tent with the allegations of the complaint but demonstrate, nonetheless,
that the plaintiff has no cause of action.’’ Grant v. Bassman, 221 Conn. 465,
472–73, 604 A.2d 814 (1992); see also Practice Book § 10-50. By pleading
that ‘‘[BAHR’s] counterclaims fail to state claims upon which relief can be
granted,’’ the plaintiff has attempted to assert a legal sufficiency claim by
way of a special defense.
We will not resolve this particular issue based on the record before us.
First and foremost, none of the parties distinctly raised the issue before the
trial court during the underlying proceedings, nor did the court address
the issue or the plaintiff’s special defense in its memorandum of decision.
Moreover, BAHR has not raised the issue on appeal. Although this court
has the authority to raise an issue sua sponte, ‘‘the burden ordinarily is on
the parties to frame the issues, and the presumption is that issues not raised
by the parties are deemed waived.’’ Blumberg Associates Worldwide, Inc.
v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 164, 84 A.3d 840
(2014). Thus, we leave for another day the issue of whether a party may
properly assert, by way of a special defense, that a count fails to state a
claim upon which relief may be granted.
12
As discussed in footnote 18 of this opinion, General Statutes (Rev. to
2017) § 34-141 was repealed pursuant to Public Acts 2016, No. 16-97, § 110,
and replaced by the Connecticut Uniform Limited Liability Company Act
(CULLCA), General Statutes § 34-243 et seq. General Statutes (Rev. to 2017)
§ 34-141, however, was in effect at the time the plaintiff allegedly breached
his fiduciary duties to BAHR.
13
General Statutes § 52-576 provides in relevant part: ‘‘(a) No action for
an account . . . shall be brought but within six years after the right of
action accrues, except as provided in subsection (b) of this section. . . .’’
14
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
15
We further observe that BAHR did not appear to consider its counter-
claim as setting forth a cause of action for an accounting. Specifically, in
its posttrial brief, BAHR made no argument that an accounting was needed
as a result of the plaintiff’s breach of his fiduciary duty. Rather, BAHR
explicitly stated that its counterclaim ‘‘alleges a claim for a breach of the
foregoing fiduciary duty’’ and limited its analysis to arguing that such a
breach occurred.
16
In reaching this conclusion, we acknowledge that the remedy of an
accounting may take the form of either equitable or legal relief. See Zuch
v. Connecticut Bank & Trust Co., supra, 5 Conn. App. 460–61. Indeed, ‘‘[t]he
right to accounting is not absolute, but should be accorded only on equitable
principles.’’ (Internal quotation marks omitted.) Papallo v. Lefebvre, supra,
172 Conn. App. 764. The balancing of the equities generally is entrusted to
the discretion of the trial court. See Mankert v. Elmatco Products, Inc.,
supra, 84 Conn. App. 459.
The record, however, provides little indication that the court employed
any equitable balancing or considered BAHR’s counterclaim as sounding in
a claim for an accounting. The court’s memorandum of decision is largely
silent with respect to BAHR’s request for an accounting, and the court makes
only a single reference to that request when summarizing BAHR’s request
for relief. Absent from the decision is any order for an accounting or any
indication that it was exercising a discretionary, equitable function. See
Episcopal Church in the Diocese of Connecticut v. Gauss, supra, 302 Conn.
457–58 (court acted within its discretion when it explicitly invoked its equita-
ble authority to order accounting to protect its original judgment). Even if
we were to assume otherwise, the deficiencies in BAHR’s pleadings, and
the fact that its damages were readily ascertainable, leave no room for
discretion. See Zuch v. Connecticut Bank & Trust Co., supra, 5 Conn. App.
461–62 (because plaintiff failed to allege demand and refusal in its claim
for accounting, court improperly found that complaint sufficiently stated
claim for accounting); see also Papallo v. Lefebvre, supra, 172 Conn. App. 764
(in holding that court was within discretion to deny request for accounting
of bartering agreement, noting that accounting would nevertheless be inap-
propriate because plaintiffs ‘‘had records pertaining to the defendant’s use
of [the bartering agreement], and therefore any loss was ascertainable’’).
17
The relevant allegations of oppression include that Collins (1) stopped
payment on nine $1000 checks, (2) filed an interim report with the Connecti-
cut Secretary of the State that failed to list the plaintiff as a member of
BAHR, (3) terminated the plaintiff’s son from employment by the cafe, (4)
refused to provide the plaintiff with distributions, and (5) refused to provide
the plaintiff with BAHR’s financial documents
18
The defendants further argue—in a footnote in their brief—that the
plaintiff’s reliance on the Connecticut Uniform Limited Liability Company
Act (CULLCA), General Statutes § 34-243 et seq., is improper and inapplica-
ble due to its savings clause. See General Statutes § 34-283b (‘‘[s]ections 34-
243 to 34-283d, inclusive, do not affect an action commenced, proceeding
brought or right accrued before July 1, 2017’’). Upon our review of the
record, however, Collins never brought this issue to the trial court’s attention
at any point during the underlying proceedings.
To the contrary, BAHR itself relied on the CULLCA throughout its posttrial
brief. Moreover, in a reply to the plaintiff’s objection to BAHR’s motion for
leave to file an amended counterclaim, BAHR argued that ‘‘[t]he [CULLCA]
was effective July 1, 2017, and [General Statutes] § 34-255h (i) (1) applies
retroactively to the plaintiff’s conduct.’’ In that pleading, BAHR further
alleged that the ‘‘[p]laintiff is well aware of the applicability of that act’’
and was granted permission to amend his complaint accordingly. In seeking
permission to amend the complaint, the plaintiff expressly stated that the
amendment was necessary in order ‘‘to reference applicable provisions of
[the] [CULLCA], [§] 34-243 et seq., effective July 1, 2017 . . . .’’ The defen-
dants did not object to the amendment. Given the defendants’ failure to
object to the amended complaint and their reliance on CULLCA before the
trial court, it is unsettling that the defendants now claim on appeal, for the
first time, that CULLCA is inapplicable. In light of the foregoing, we consider
the defendants’ alternative argument regarding the applicability of CULLCA
unpreserved, and therefore decline to address it on appeal. See Travelers
Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714,
761–62, 95 A.3d 1031 (2014).
19
The Connecticut Limited Liability Company Act (CLLCA), General Stat-
utes (Rev. to 2017) § 34-100 et seq., has since been repealed and replaced
by the CULLCA. See Public Acts 2016, No. 16-97, § 110; see also Saunders
v. Briner, 334 Conn. 135, 139 n.1, 221 A.3d 1 (2019). For purposes of conve-
nience, all references to the CLLCA in this opinion are to the 2017 revision
of the General Statutes.
20
It is well established that a limited liability company (LLC) is a ‘‘distinct
business entity that adopts and combines features of both partnership and
corporate forms.’’ (Internal quotation marks omitted.) 418 Meadow Street
Associates, LLC v. Clean Air Partners, LLC, 304 Conn. 820, 834 n.13, 43
A.3d 607 (2012). Our Supreme Court has recognized ‘‘the closely held nature
of many [limited liability companies]’’ (Internal quotation marks omitted.)
Saunders v. Briner, 334 Conn. 135, 162 n.28, 221 A.3d 1 (2019). Scholars
that have examined the oppression doctrine have analogized minority mem-
bers of a limited liability company (LLC) to minority shareholders of close
corporations. See generally F. O’Neal & R. Thompson, Oppression of Minor-
ity Shareholders and LLC Members (Rev. 2d Ed. 2011) § 6:2, pp. 6-2 through
6-4 (analyzing similarities between minority shareholders of close corpora-
tion and minority member of LLC in context of oppression); see also D.
Moll, ‘‘Minority Oppression & The Limited Liability Company: Learning (Or
Not) From Close Corporation History,’’ 40 Wake Forest L. Rev. 883, 925–57
(2005) (in arguing that oppression claims should be available to minority
members of LLC, noting that such members share many characteristics of
minority shareholders of close corporation).
Additionally, we note that courts of other states have applied corporate
principles governing oppression claims to minority members of LLCs. See,
e.g., Pointer v. Castellani, 455 Mass. 537, 549–51, 918 N.E.2d 805 (2009)
(holding LLC is close corporation and applying corporate principles of
oppression doctrine to minority member’s oppression claim); see also F.
O’Neal & R. Thompson, Oppression of Minority Shareholders and LLC Mem-
bers (Rev. 2d Ed. 2020) § 6:3 (‘‘Elsewhere, courts in many jurisdictions refer
explicitly to close corporation precedent in addressing LLC issues. Given
the overlap of close corporations and LLCs, courts regularly apply close
corporation rules to its newer legal cousins . . . .’’) Furthermore, the com-
mentary to the RULLCA explicitly looks to close corporation law in defining
the contours of oppression under the act, despite acknowledging that doing
so ‘‘requires some caution.’’ Rev. Unif. Limited Liability Company Act of
2006 (2013) § 701, comment, 6C U.L.A., supra, 135.
Given that a minority shareholder of a close corporation and a minority
member of an LLC share many traits which make them vulnerable to oppres-
sion, and mindful of the commentary’s guidance, we believe that the govern-
ing principles of close corporation law are instructive for our interpretation
of the term ‘‘oppression’’ as it appears in the CULLCA. For purposes of
convenience, we use the terms ‘‘LLC’’ and ‘‘close corporation’’ inter-
changeably.
21
Additionally, we note that at least one appellate court in this country
has also applied the ‘‘reasonable expectations’’ standard for analyzing claims
of oppression under its state’s version of the RULLCA. See Morse v. Rosend-
hal, Court of Appeals of Iowa, Docket No. 15-0912, 885 N.W.2d 220, 2016
WL 3273725, *5–6 (Iowa App. June 15, 2016) (unpublished opinion).
22
Furthermore, we agree with the New York Court of Appeals that ‘‘[i]t
would be contrary to the remedial purpose [of involuntary dissolution] to
permit its use by minority shareholders as merely a coercive tool . . . .’’
(Citations omitted.) Matter of Kemp & Beatley, Inc., supra, 64 N.Y.2d 74.
Thus, a plaintiff is not entitled to seek dissolution under § 34-267 (a) (5)
when his or her own acts—resulting in the alleged oppressive conduct—
were ‘‘made in bad faith and undertaken with a view toward forcing an
involuntary dissolution . . . .’’ (Citations omitted.) Id.
23
As we previously noted, the plaintiff does not challenge the court’s
conclusion that Collins had authority to unilaterally amend the operative
agreement by virtue of his status as a 60 percent stakeholder in BAHR. See
footnote 6 of this opinion.
24
In fact, during trial, the court expressly disallowed any testimony about
the plaintiff’s expectations upon forming BAHR with Collins and sustained an
objection by the defendants on the basis that such testimony was irrelevant.
25
We further believe that the court’s finding that the plaintiff failed to
show that he was harmed does not appear to take into account the particular
harms that arise from oppressive conduct relative to the plaintiff’s status
as a minority member. For instance, the court concluded that the plaintiff
was not harmed by the defendants’ failure to provide him with BAHR’s
financial documents because they were produced during the discovery pro-
cess. This conclusion indicates that the court not only failed to consider
the unique harms suffered by the plaintiff as a minority member, but it
additionally ignored the fact that the plaintiff alleged these harms as a
ground for oppressive conduct. See Brenner v. Berkowitz, supra, 134 N.J.
507. It was not until litigation proceedings began that the plaintiff received
the company documents he believed he was entitled to. It would contravene
the purposes of § 34-267 (a) (5) if the only way that a minority member
could exercise his or her rights would be to rely on the discovery process
in the course of legal proceedings. Because the court did not appear to
apply the correct legal standard for determining harm, we cannot affirm
the court’s judgment on that basis.
26
Given the atypical expectations of a minority member in an LLC, it is
implausible that such a member would have committed capital to a venture
in the knowledge that he or she could be entirely precluded from realizing
any return on his or her investment. As one scholar on this issue has
commented, a minority shareholder simply does not bargain for such a
potentiality: ‘‘[I]t seems likely that minority shareholders would have refused
to invest in the venture if the majority shareholder had insisted upon the
retention of his freeze-out discretion. In other words, to appease the minority
shareholders and to induce them to commit capital to the business, the
majority shareholder would likely have had to promise that his freeze-out
discretion would not be utilized.’’ D. Moll, supra, 53 Vand. L. Rev. 799–800.
27
We emphasize that dissolution is not the sole remedy for oppression
of a minority member. In fact, § 34-267 (b) expressly permits a court to
‘‘order a remedy other than dissolution’’ for a proceeding brought under
§ 34-267 (a) (5). In providing for these alternatives, this provision of the
CULLCA suggests that the drafters acknowledged the extreme and drastic
nature of dissolution as a remedy. Cf. Bator v. United Sausage Co., 138
Conn. 18, 22, 81 A.2d 442 (1951) (holding that dissension among corporation
members ‘‘is not a ground for dissolution unless it goes so far as to render
it impossible to carry on the corporate affairs’’); see also Bontempo v. Lare,
supra, 444 Md. 368 (‘‘dissolution is an extreme remedy and should be avoided
if less drastic equitable remedies are available); Brenner v. Berkowitz, supra,
134 N.J. 511 (dissolution is ‘‘an extreme remedy to be imposed with caution
after a careful balancing of the interests at stake’’); Scott v. Trans-System,
Inc., supra, 148 Wash. 2d 718 (concluding that facts of case ‘‘do not rise to
the level of egregiousness required to justify dissolution given the admon-
ishments from courts in this state and around the country that dissolution
is a drastic remedy that should be used with extreme caution’’).
In Bontempo v. Lare, supra, 444 Md. 368–69, the Court of Appeals of
Maryland adopted a nonexhaustive list of alternative remedies to dissolution
for oppressive conduct that a court has at its disposal:
‘‘(a) The entry of an order requiring dissolution of the corporation at a
specified future date, to become effective only in the event that the stock-
holders fail to resolve their differences prior to that date;
‘‘(b) The appointment of a receiver, not for the purposes of dissolution,
but to continue the operation of the corporation for the benefit of all the
stockholders, both majority and minority, until differences are resolved or
‘oppressive’ conduct ceases;
‘‘(c) The appointment of a ‘special fiscal agent’ to report to the court
relating to the continued operation of the corporation, as a protection to
its minority stockholders, and the retention of jurisdiction of the case by
the court for that purpose;
‘‘(d) The retention of jurisdiction of the case by the court for the protection
of the minority stockholders without appointment of a receiver or ‘special
fiscal agent’;
‘‘(e) The ordering of an accounting by the majority in control of the
corporation for funds alleged to have been misappropriated;
‘‘(f) The issuance of an injunction to prohibit continuing acts of ‘oppres-
sive’ conduct and which may include the reduction of salaries or bonus
payments found to be unjustified or excessive;
‘‘(g) The ordering of affirmative relief by the required declaration of a
dividend or a reduction and distribution of capital;
‘‘(h) The ordering of affirmative relief by the entry of an order requiring
the corporation or a majority of its stockholders to purchase the stock of
the minority stockholders at a price to be determined according to a specified
formula or at a price determined by the court to be a fair and reasonable price;
‘‘(i) The ordering of affirmative relief by the entry of an order permitting
minority stockholders to purchase additional stock under conditions speci-
fied by the court;
‘‘(j) An award of damages to minority stockholders as compensation for
any injury suffered by them as the result of ‘oppressive’ conduct by the
majority in control of the corporation.’’
See also Brenner v. Berkowitz, supra, 134 N.J. 514–15 (providing similar
list of nonexclusive equitable remedies, short of dissolution, for oppressed
minority shareholder).
We further note that, in fashioning a less drastic remedy, ‘‘a court should
take into account not only the reasonable expectations of the oppressed
minority [member], but also the expectations and interests of others associ-
ated with the company.’’ Bontempo v. Lare, supra, 444 Md. 370. To do so
necessarily requires a balancing of factors to make an equitable determina-
tion, and, therefore, is left to the sound discretion of the trial court. See
T & M Building Co. v. Hastings, 194 Conn. App. 532, 551, 221 A.3d 557
(2019), cert. denied, 334 Conn. 926, 224 A.3d 162 (2020).