Rubin v. Brodie ( 2024 )

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EITAN RUBIN ET AL. v. BARNETT
BRODIE ET AL.
(AC 46348)
Elgo, Moll and Prescott, Js.
Syllabus
The plaintiffs appealed from the trial court’s judgment dismissing their action
for lack of subject matter jurisdiction. The plaintiffs claimed, inter alia,
that the court improperly concluded that the individual plaintiffs, who are
members of the plaintiff limited liability companies (LLCs), lacked standing
to maintain a derivative action to enforce the rights of the plaintiff LLCs.
Held:
The trial court improperly concluded that the individual plaintiffs lacked
standing to maintain a derivative action to enforce the rights of the plaintiff
LLCs, as that court had properly determined that the complaint sufficiently
alleged that it would have been futile for the plaintiffs to demand that the
defendant B, the manager of the plaintiff LLCs, cause the plaintiff LLCs to
commence the action, the allegations in the complaint satisfied the pleading
requirements set forth in the applicable statutes (§§ 34-271a and 34-271c),
and there was no requirement in the language of § 34-271a or § 34-271c that
the individual plaintiffs receive consent from the plaintiff LLCs to bring a
derivative suit.
The trial court properly concluded that the plaintiff LLCs lacked standing
to maintain their direct action because the LLCs’ operating agreements
established that only the LLCs’ manager had the authority to commence
litigation, not the LLCs’ respective members, and, even if the individual
plaintiffs, as members of the LLCs, had received authorization from the LLCs
to commence the action, they would not have been empowered, pursuant
to the language of the operating agreements of the plaintiff LLCs, to initiate
a direct action on behalf of the plaintiff LLCs.
The trial court properly concluded that the individual plaintiffs lacked stand-
ing to maintain their direct action, the individual plaintiffs’ having alleged
injuries that were solely the result of injuries suffered by the plaintiff LLCs.
This court declined to review the plaintiffs’ claim that the trial court’s failure
to treat the defendants’ motions to dismiss as motions to strike to allow
them to replead and expressly allege demand futility was improper, in light of
this court’s conclusion that the trial court properly inferred demand futility.
Argued May 15—officially released October 15, 2024
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Rubin v. Barnett
Procedural History
Action to recover damages for, inter alia, breach of
fiduciary duty, and for other relief, brought to the Supe-
rior Court in the judicial district of New Haven, where
the court, Jongbloed, J., granted the defendants’
motions to dismiss and rendered judgment thereon,
from which the plaintiffs appealed to this court.
Reversed in part; further proceedings.
Benjamin Gershberg, with whom, on the brief, was
Ridgely Whitmore Brown, for the appellants (plain-
tiffs).
Jack G. Steigelfest, for the appellees (named defen-
dant et al.).
Joseph J. Cherico, with whom were Richard P. Col-
bert, and, on the brief, Adam M. Swanson, and Demery
J. Ormrod, for the appellee (defendant CoreVest Ameri-
can Finance Lender, LLC).
Christina S. Cassidy, with whom, on the brief, was
Ashley A. Noel, for the appellee (defendant Lawrence
Levinson).
Opinion
PRESCOTT, J. The plaintiffs, Eitan Rubin (Rubin),
individually, Eitan Rubin by power of attorney and by
proxy for George Rohr (Rohr), Reuven Gidanian, and
three limited liability company plaintiffs, E.R. Holdings,
LLC, L.E. Ventures, LLC, and Whalley Group, LLC (col-
lectively, plaintiff LLCs), appeal from the judgment of
dismissal rendered by the trial court in favor of the
defendants, Barnett Brodie, CoreVest American
Finance Lender, LLC, formerly known as Colony Ameri-
can Finance Lender, LLC (CoreVest), 5 Arch Funding
Corporation (5 Arch), Attorney Lawrence Levinson and
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five business entities that Brodie owns or controls (Bro-
die defendants).1 The plaintiffs raise four claims on
appeal. First, they claim that the court improperly con-
cluded that the individual plaintiffs, who are members
of the plaintiff LLCs, lacked standing to maintain a
derivative action to enforce the rights of the plaintiff
LLCs even though it determined that the plaintiffs suffi-
ciently had alleged that it would have been futile for
them to demand that the plaintiff LLCs’ manager, Bro-
die, cause the LLCs to bring the action. See General
Statutes §§ 34-271a and 34-271c.2 Second, they claim
that the court improperly concluded that the individual
plaintiffs had not ‘‘fairly or adequately alleged authoriza-
tion to bring suit’’ in the plaintiff LLCs’ names and, thus,
improperly determined that the plaintiff LLCs lacked
standing to maintain a direct action ‘‘in their own right.’’
Third, they claim that the court improperly concluded
that the individual plaintiffs lacked standing to maintain
their direct action because it found the injuries they
alleged ‘‘resulted solely from the injuries to the [plain-
tiff] LLC[s].’’ Finally, they claim that the court improp-
erly declined to treat the defendants’ motions to dismiss
as motions to strike to allow them to replead.
We agree with the plaintiffs’ first claim and conclude
specifically that the court improperly determined that
1
The Brodie defendants include Brodie and the following defendant enti-
ties: Reichman Brodie Real Estate, LLC; RBC DE2, LLC; Sperry Group DE2,
LLC; Riley Group DE2, LLC; and TZ DE2, LLC.
2
General Statutes § 34-271a provides: ‘‘A member may maintain a deriva-
tive action to enforce a right of a limited liability company if: (1) The member
first makes a demand on the other members in a member-managed limited
liability company, or the managers of a manager-managed limited liability
company, requesting that they cause the company to bring an action to
enforce the right, and the managers or other members do not bring the
action within ninety days; or (2) a demand under subdivision (1) of this
section would be futile.’’
General Statutes § 34-271c provides: ‘‘In a derivative action, the complaint
must state with particularity: (1) The date and content of plaintiff’s demand
and the response by the managers or other members to the demand; or (2)
why the demand should be excused as futile.’’
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Rubin v. Barnett
the individual plaintiffs lacked standing to maintain a
derivative action to enforce the rights of the plaintiff
LLCs in light of the court’s conclusion that their com-
plaint sufficiently alleged demand futility. Accordingly,
we reverse the trial court’s judgment dismissing, for
lack of subject matter jurisdiction, the individual plain-
tiffs’ derivative action. We disagree with the plaintiffs’
second and third claims and therefore affirm the trial
court’s judgment dismissing, for lack of subject matter
jurisdiction, the plaintiff LLCs’ and the individual plain-
tiffs’ direct actions. We decline to review the plaintiffs’
fourth claim.
The following facts, as alleged in the complaint, and
procedural history are relevant to our resolution of
this appeal. The plaintiff LLCs owned land and rental
properties (assets) in and around New Haven. The indi-
vidual plaintiffs, Rubin and Gidanian, along with Rohr,
for whom Rubin is alleged to have acted ‘‘under power
of attorney and [by] proxy’’ in bringing this action,
owned, either collectively or individually, the majority,
70 percent membership interest in the plaintiff LLCs.
Specifically, Rubin and Gidanian collectively owned a
70 percent membership interest in E.R. Holdings, LLC,
Rubin owned a 70 percent membership interest in L.E.
Ventures, LLC, and Rubin and Rohr collectively owned
a 70 percent membership interest in Whalley Group,
LLC. Brodie was the managing member of each of the
plaintiff LLCs, and he owned the remaining 30 percent
membership interest in those entities.
In August, 2020, Brodie began to ‘‘convey, mortgage
and sell’’ the assets of the plaintiff LLCs to other ‘‘down-
stream LLCs’’ that he either owned or controlled. By
doing so, the plaintiffs alleged that he exceeded the
scope of his statutory authority and his authority under
the plaintiff LLCs’ respective operating agreements.
Moreover, Brodie’s ultra vires acts in ‘‘purport[ing] to
convey, mortgage and sell all the real estate assets
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owned by each of the LLCs’’ have allegedly led to their
dissolution.
On February 15, 2022, Rubin, Gidanian, and Rubin
‘‘under power of attorney and proxy from . . . Rohr’’
(collectively, individual plaintiffs), ‘‘in their individual
and representative capacities as well as constituting
the 70 [percent] majority voting interest in each of the
[plaintiff] LLCs,’’ and the plaintiff LLCs, commenced
this civil action. They named as defendants Brodie; five
business entities Brodie owns or controls and to which
he conveyed the assets of the plaintiff LLCs; CoreVest
and 5 Arch, which hold mortgages on several of these
assets; and Levinson, who represented Brodie, both
individually and in his capacity as managing member
of the plaintiff LLCs, ‘‘in various legal matters . . . .’’
In the first count of the complaint, the plaintiffs
sought damages for Brodie’s ultra vires actions and
breaches of his fiduciary duties in managing the plaintiff
LLCs. They alleged that Brodie exceeded the scope of
his authority as manager under the LLCs’ operating
agreements, and that he engaged in self-dealing by caus-
ing the dissolution of the plaintiff LLCs by merging them
into entities he controlled and by improperly obtaining
mortgages on the assets. This allegedly caused ‘‘dam-
ages to the [individual plaintiffs] directly and/or . . .
to the value of their interests in the [plaintiff] LLCs and
the real estate represented to be in those LLCs . . . .’’
In the second count of their complaint, the plaintiffs
sought to quiet title to certain of the real estate assets
that the plaintiff LLCs owned before Brodie conveyed
and mortgaged them.3 They directed this count against
the Brodie defendants, CoreVest and 5 Arch.
3
The plaintiffs alleged that Brodie had represented to them that E.R.
Holdings, LLC, ‘‘[had]’’ five properties, Whalley Group, LLC, ‘‘[had]’’ nineteen
properties, and L.E. Ventures, LLC, ‘‘[had]’’ two properties.
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Rubin v. Barnett
In the third count of their complaint, the plaintiffs
sought to recover damages from all defendants for vio-
lating the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., by virtue
of their alleged collective involvement in Brodie’s sale
of ‘‘all the properties in the [plaintiff] LLCs to down-
stream entities . . . .’’ They claim to have ‘‘suffer[ed]
an ascertainable loss’’ related to the lost value of the
conveyed real estate and also the ‘‘loss of use of such
real estate, rentals and the time and inconvenience by
the plaintiffs in attempting to secure their rightful prop-
erty in the [plaintiff] LLCs for their ultimate benefit as
70 [percent] shareholders.’’
Finally, in the fourth count of their complaint, they
alleged legal malpractice by Levinson related to his
representation of Brodie, individually and in his capac-
ity as manager of the plaintiff LLCs, with respect to the
conveyances. The plaintiffs claim ‘‘damages’’ related
thereto.
The defendants responded to the complaint by filing
separate motions to dismiss. In their respective
motions, the defendants claimed that the court lacked
subject matter jurisdiction because the individual plain-
tiffs lacked standing to maintain their action. More spe-
cifically, each defendant argued that (1) the individual
plaintiffs lacked standing to maintain their derivative
action to enforce the rights of the plaintiff LLCs because
they had not complied with § 34-271c by expressly alleg-
ing either that they had demanded that Brodie cause
the plaintiff LLCs to bring an action and Brodie refused,
or that the making of such demand should be excused
because doing so would have been futile, and (2) the
individual plaintiffs lacked standing to maintain their
direct action because the injuries they alleged were
solely the result of injuries the plaintiff LLCs suffered
and, thus, the individual plaintiffs were not aggrieved.
The Brodie defendants and Levinson also claimed in
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their motions that the action should be dismissed
because the plaintiffs’ service of process failed to
include necessary addresses and was, therefore,
improper, and because the plaintiffs failed to name an
indispensable party, Rohr, as a plaintiff to this action.
On August 1, 2022, the plaintiffs filed individual objec-
tions to each motion to dismiss and a global memoran-
dum of law in support of those objections. They made
three arguments with respect to standing. First, they
argued that ‘‘[t]he complaint sufficiently alleges facts
showing that the three plaintiff LLCs have all suffered
an injury in their own right, that there is implied consent
to the bringing of the suit by members having more
than two-thirds interest in each of the LLCs, and that
therefore they have sufficient standing to maintain a
cause of action against the defendants, as an alternative
to the claim that they are bringing derivatively.’’ Second,
they argued that the individual plaintiffs had standing to
maintain their derivative action because the complaint
sufficiently alleged that any demand on Brodie would
have been futile and that any defect with respect to their
allegations in that regard could be cured by repleading.
Third, they argued that the individual plaintiffs had ‘‘suf-
ficiently alleged facts that show they have suffered an
injury that is ‘not solely the result of an injury suffered
or threatened to be suffered by’ the respective plaintiff
LLCs, within the meaning of [General Statutes] § 34-
271’’ and, therefore, they had standing to maintain their
direct action.
The plaintiffs also refuted the Brodie defendants’ and
Levinson’s claims regarding insufficient service of pro-
cess and the failure to name an indispensable party by
claiming that ‘‘the identification of the parties by [power
of attorney] and the listing of the address of their attor-
ney is sufficient and any defect in naming the plaintiffs
and their addresses is trivial and has no practical effect
on the defendants’ ability to respond to the complaint.
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Rubin v. Barnett
Moreover . . . Rohr is a party to this action and there-
fore the defendants’ claim that the complaint should
be dismissed because of failure to name him as an
indispensable party should be denied.’’
The defendants filed replies to the plaintiffs’ objec-
tions. With respect to standing, all of the defendants
advanced three identical and distinct arguments that
(1) the individual plaintiffs had not received authoriza-
tion to bring this action in the name of the plaintiff
LLCs and, thus, the plaintiff LLCs lacked standing to
maintain their direct action, (2) the individual plaintiffs
lacked standing to maintain a derivative action because
they had not satisfied the statutory requirements set
forth in §§ 34-271a and 34-271c, and (3) the individual
plaintiffs lacked standing to maintain a direct action
because they alleged to have suffered indirect injuries
that were derivative of the direct injuries allegedly suf-
fered by the plaintiff LLCs. The Brodie defendants and
Levinson also argued that the plaintiffs’ objections were
untimely.
On December 23, 2022, the court, Jongbloed, J.,
issued a memorandum of decision granting the defen-
dants’ motions to dismiss the plaintiffs’ complaint, in
its entirety, for lack of subject matter jurisdiction, upon
concluding that the plaintiffs lacked standing to main-
tain their claims. The court expressly identified two
bases for dismissing the plaintiffs’ action. First, as to
‘‘the derivative suit,’’ the court explained that it granted
the defendants’ motions to dismiss ‘‘because the plain-
tiffs have not fairly or adequately alleged authorization
to bring suit.’’ Second, as to the ‘‘individual plaintiffs’
direct suit,’’ the court explained that it granted the
defendants’ motions to dismiss ‘‘because [the individual
plaintiffs’] injuries resulted solely from the injuries to
the [plaintiff] LLC[s].’’
The court did not address explicitly whether the
plaintiff LLCs had standing to maintain their direct
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action. It did, however, acknowledge that the defen-
dants had presented three distinct challenges to the
plaintiffs’ standing, which included their claim that ‘‘the
plaintiffs cannot maintain the action because they have
not taken an official act authorizing suit . . . .’’4 More-
over, it incorporated the standards applicable to, and
addressed the arguments that the defendants advanced
in support of, the challenge to the plaintiff LLCs’ stand-
ing to maintain their direct action into its analysis before
concluding that the individual plaintiffs failed to estab-
lish that they, ‘‘as members of the LLCs, had authority
to bring this action on behalf of the LLCs.’’
After setting forth the standard for deciding a motion
to dismiss, the court addressed the plaintiffs’ ‘‘deriva-
tive action’’ in one section of its memorandum of deci-
sion and the plaintiffs’ ‘‘direct action’’ in another. In
analyzing the viability of the ‘‘derivative action,’’ the
court addressed ‘‘futility’’ in one subsection and ‘‘con-
sent’’ in another. With respect to ‘‘futility,’’ the court
recognized that LLC ‘‘members are allowed to maintain
derivative actions to enforce the right of a limited liabil-
ity company’’ if they ‘‘satisfy the statutory requirements
set forth in . . . § 34-271a . . . [and their] pleadings
4
Specifically, the court stated that ‘‘the defendants [moved] to dismiss
the complaint in its entirety for lack of subject matter jurisdiction on the
grounds that . . . the plaintiffs lack standing to bring a direct suit, and in
the alternative, lack standing to bring a derivative suit. Specifically, the
defendants argue that the plaintiffs lack standing to bring the action because
they have not made a formal demand on the defendants and have failed to
allege, with particularity, that such a demand would have been futile. The
defendants argue that the plaintiffs have not alleged that they had consent
to bring such a suit as required by statute, and by the respective operating
agreements of the plaintiff business entities. The defendants assert that
futility and consent cannot be inferred from the complaint, but rather must
be made out with particularity on the face of the complaint. The defendants
also argue that the plaintiffs’ direct action is fundamentally flawed because
they have not alleged an injury suffered individually as distinct from, and not
solely resulting from, the injury suffered by the plaintiff business entities.’’
(Citations omitted.)
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Rubin v. Barnett
. . . comply with § 34-271c, which states: ‘In a deriva-
tive action the complaint must state with particularity:
(1) The date and content of plaintiff’s demand and the
response by the managers or other members to the
demand; or (2) why the demand should be excused as
futile.’ ’’ (Emphasis in original.)
Because the complaint did ‘‘not explicitly state that
demand would have been futile,’’ the court considered
whether, ‘‘under the [Connecticut Uniform Limited Lia-
bility Company Act (CULLCA), General Statutes § 34-
243 et seq.], futility must be stated on the face of the
complaint, or whether it may be inferred from the facts’’
as pleaded. After observing that no Connecticut appel-
late decisions had addressed this issue, the court
‘‘[a]ppl[ied] the reasoning’’ of the Superior Court in
Guiza v. 291-293 Greenwich Avenue, LLC, Docket No.
CV-XX-XXXXXXX-S, 2020 WL 6121446, *3 (Conn. Super.
September 22, 2020), in which ’’the court found that the
plaintiff’s allegations satisfied the futility requirement,
even where the complaint did not specifically mention
futility.’’5 The court reviewed the plaintiffs’ allegations
5
In Guiza, the plaintiff, Eduardo Guiza, and the defendant Marco Hernan-
dez each owned a 50 percent interest in the defendant 291-293 Greenwich
Avenue, LLC. Guiza v. 291-293 Greenwich Avenue, LLC, supra, 2020 WL
6121446, *1. The defendants moved to dismiss three counts of the plaintiff’s
six count complaint because, they claimed, the injuries the plaintiff alleged
in those counts were merely derivative of injuries the defendant LLC sus-
tained and, thus, the plaintiff lacked standing to bring them. Id. The defen-
dants relied upon ‘‘the principle of Connecticut jurisprudence that [an LLC’s]
member may not sue in an individual capacity to recover for an injury the
basis of which is a wrong to a limited liability company’’ to support their
claim. (Internal quotation marks omitted.) Id., *3. The court, however, dis-
agreed with the defendants’ construction of the plaintiff’s allegations and,
thus, found that this principle, although correct, was not applicable to its
analysis. Id. The court concluded, instead, that CULLCA, and specifically
§§ 34-271a and 34-271c, were controlling and found that, even though the
complaint did not ‘‘have a paragraph that includes the words ‘a demand
would be futile because . . .’ a reading of the complaint makes it clear as
to why such a request would be futile and is sufficient to satisfy that require-
ment in [§ 34-271c].’’ Id. The court accordingly denied the defendants’ motion
to dismiss. Id., *4.
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in the present case and determined that ‘‘the plaintiffs
have alleged particularized facts from which the court
can infer demand futility’’ and, thus, found ‘‘sufficient
allegations to support a finding of futility.’’
The court then turned to the issue of ‘‘consent,’’ how-
ever, and concluded that ‘‘[t]he plaintiffs’ derivative
action must fail . . . because they have not received
authorization required by statute to bring suit on behalf
of the LLCs, or authorization through the respective
operating agreements.’’ In doing so, it was persuaded
by similar arguments the defendants had made in sup-
port of their claim that the plaintiff LLCs did not have
standing to maintain a direct action.6 The court quoted
from General Statutes § 34-255f, which, it noted, ‘‘states
in relevant part that ‘[i]n a [member/manager]-managed
limited liability company . . . (3) [t]he affirmative vote
or consent of two-thirds in interest of the members is
required to: (A) Undertake an act outside the ordinary
course of the company’s activities and affairs,’ ’’ and it
analyzed and interpreted the plaintiff LLCs’ operating
agreements. It observed that ‘‘[t]he operating agree-
ments of E.R. Holdings [LLC] and L.E. [Ventures, LLC]
require ‘written approval’ to bring suit . . . . Here,
there has been no written approval. . . . The operating
agreement of the Whalley Group [LLC] vests sole
authority in the manager to: ‘bring or defend, pay, col-
lect, compromise, arbitrate, resort to legal action or
otherwise adjust claims or demands of or against the
[c]ompany.’ ’’
The court stated that ‘‘it is conceded that no vote
was taken, and written consent to bring suit on behalf
of the [plaintiff] LLCs was not obtained.’’ It explained
that ‘‘[t]he plaintiffs ask the court to infer consent from
6
The trial court arguably conflated the issue of the individual plaintiffs’
standing to maintain a derivative action with the standing of the plaintiff
LLCs to maintain a direct action.
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Rubin v. Barnett
the fact that the lawsuit has been brought by a majority
of the [plaintiff] LLC members, but there are no allega-
tions on the face of the complaint, that state consent
was sought or received on behalf of the [plaintiff] LLCs.
The requirement set forth in the statute and in the
operating agreements has not been met and the court
will not infer consent.’’ The court thereafter granted in
part the motions to dismiss ‘‘on this ground.’’7
The court then addressed the individual plaintiffs’
‘‘direct action.’’ It recited ‘‘settled’’ precedent that an
LLC ‘‘member . . . may not sue in an individual capac-
ity to recover for an injury based on a wrong to the
limited liability company’’; (internal quotation marks
omitted); and quoted from § 34-271 (b), which provides:
‘‘A member maintaining a direct action under this sec-
tion must plead and prove an actual or threatened injury
that is not solely the result of an injury suffered or
threatened to be suffered by the limited liability com-
pany.’’ It then reviewed the complaint and concluded
that ‘‘each of the substantive allegations of harm . . .
involves injur[ies] to the [plaintiff] LLC[s], rather than
to the [individual] plaintiffs themselves.’’ Because it
found that ‘‘[t]he plaintiffs’ complaint is devoid of allega-
tions that the [individual] plaintiffs incurred harm indi-
vidually,’’ the court determined that the individual plain-
tiffs did not have standing to maintain their direct action
and granted the defendants’ motions to dismiss for this
reason as well. It further specified that, ‘‘[b]ecause the
7
Because the court found that the operating agreement of Whalley Group,
LLC, ‘‘provides for the matter of authority to bring suit and vests sole
authority in Brodie’’ to do so, it found that CULLCA did not apply to that
analysis. It further noted, however, that, ‘‘even assuming that Brodie’s alleged
fraud renders the CULLCA applicable, in the absence of proof that Rubin
is acting under power of attorney on behalf of . . . Rohr, Rohr’s consent
to the suit cannot be inferred. At oral argument, the plaintiffs’ attorney
conceded Rohr did not want to be a party to the action but had an interest
in the suit. . . . The court cannot conclude that Rubin has consent to bring
suit on behalf of Whalley Group [LLC].’’ (Citation omitted.)
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14 ,0 0 Conn. App. 1Rubin v. Barnett
motions to dismiss are granted based on lack of subject
matter jurisdiction, the court need not address the
claims regarding the failure to join an indispensable
party and insufficient process.’’8
The plaintiffs filed a motion to reargue the court’s
decision on January 12, 2023, the defendants filed objec-
tions thereto, and, on March 7, 2023, the court issued
an order denying the motion to reargue ‘‘for the reasons
set forth in the objections and because the court did
not overlook any principles of law or misapprehend
any facts . . . .’’ (Citation omitted.) This appeal from
the judgment of dismissal followed.9 Additional facts
and procedural history will be set forth as necessary.10
8
The court did, however, address the issue of the timeliness of the plain-
tiffs’ objections. In doing so, it acknowledged that the objections were filed
approximately four months after the filing of the first motion to dismiss,
without extensions, but it exercised its discretion and considered them,
nonetheless. The defendants have not challenged on appeal the propriety
of the court having done so.
9
The plaintiffs also appealed from the court’s denial of their motion to
reargue the judgment of dismissal. They do not raise, however, any claims
of error that are specifically related to that denial.
10
We note that the dispute underlying the plaintiffs’ complaint in this
action also gave rise to a binding rabbinical arbitration proceeding in which
Brodie sought to buy out the interests of Rubin and Gidanian in E.R. Holdings,
LLC. The arbitration hearings occurred prior to the commencement of this
action, and the decision of the arbitrators, which ordered that Rubin and
Gidanian sell their interests in E.R. Holdings, LLC, to Brodie for $168,425
was issued on March 23, 2022, approximately one month after the plaintiffs
initiated this action. On March 24, 2022, in this civil action, Brodie filed an
application to confirm the arbitration award pursuant to General Statutes
§ 52-417 et seq. The defendants’ motions to dismiss this civil action were
filed thereafter and the parties agreed that the court should resolve the
motions to dismiss prior to hearing the application to confirm. After the
court granted the motions to dismiss and the plaintiffs filed this appeal,
Brodie attempted to reclaim his application to confirm, and the plaintiffs
objected. On November 3, 2023, the clerk issued an order indicating that
no hearing would be scheduled at that time because the matter was stayed
due to this pending appeal. The Brodie defendants then filed a motion to
reargue in which they claimed that the automatic appellate stay did not
apply to the application to confirm, the plaintiffs objected, and the court
sustained their objection. The Brodie defendants then filed a motion for
review of the court’s decision in which they asked this court for an order
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Rubin v. Barnett
Before we address the plaintiffs’ specific claims, we
set forth our standard of review and general legal princi-
ples that are germane to our analysis. ‘‘A motion to
dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
trial court’s ultimate legal conclusion and resulting
[decision to] grant . . . the motion to dismiss [is] de
novo. . . .
‘‘The issue of standing implicates subject matter juris-
diction and is therefore a basis for granting a motion
to dismiss. . . . [I]t is the burden of the party who
seeks the exercise of jurisdiction in his favor . . .
clearly to allege facts demonstrating that he is a proper
party to invoke judicial resolution of the dispute. . . .
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . If a party
is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause.’’ (Citations omitted; internal quotation marks
omitted.) Derblom v. Archdiocese of Hartford, 203
Conn. App. 197, 206–207, 247 A.3d 600 (2021), aff’d, 346
Conn. 333, 289 A.3d 1187 (2023). ‘‘In addition, because
clarifying whether Practice Book § 61-11 (a) automatically stays proceedings
in the Superior Court on the pending application to confirm. We granted
the motion for review and the relief requested therein and concluded that
this appeal does not automatically stay proceedings before the Superior
Court on the pending application to confirm the arbitration award. See
Rubin v. Brodie, 225 Conn. App. 108, 314 A.3d 1066 (2024). The trial court,
Ozalis, J., granted that application on August 30, 2024.
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standing implicates the court’s subject matter jurisdic-
tion, the issue of standing is not subject to waiver and
may be raised at any time.’’ (Internal quotation marks
omitted.) Bernblum v. Grove Collaborative, LLC, 211
Conn. App. 742, 755, 274 A.3d 165, cert. denied, 343
Conn. 925, 275 A.3d 626 (2022).
‘‘Our Supreme Court has explained that [d]ifferent
rules and procedures will apply, depending on the state
of the record at the time the motion [to dismiss] is filed.
. . . More specifically, a court may be called on to
determine whether subject matter jurisdiction is lacking
on the basis of (1) the complaint alone; (2) the com-
plaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undis-
puted facts plus the court’s resolution of disputed
facts.’’ (Citation omitted; internal quotation marks omit-
ted.) Derblom v. Archdiocese of Hartford, supra, 203
Conn. App. 207. Where, as here, ‘‘a trial court decides
a jurisdictional question raised by a pretrial motion to
dismiss on the basis of the complaint alone, it must
consider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader.’’ (Internal quotation marks omitted.) Conboy
v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
I
THE INDIVIDUAL PLAINTIFFS’ DERIVATIVE ACTION
The plaintiffs first claim that the court improperly
concluded that the individual plaintiffs, who are mem-
bers of the plaintiff LLCs, lacked standing to maintain
a derivative action to enforce rights of the plaintiff LLCs,
given its determination that the plaintiffs satisfied the
requirements of §§ 34-271a and 34-271c by sufficiently
alleging that it would have been futile to demand that
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Rubin v. Barnett
Brodie, the manager of the plaintiff LLCs, cause the
plaintiff LLCs to bring the action against him and other
defendants.11 They argue that the court’s further deter-
mination that they also were required to allege that they
had ‘‘received authorization as required by statute . . .
or authorization through the [plaintiff LLCs’] respective
operating agreements’’ to bring and maintain a deriva-
tive action ‘‘inserted a requirement that is nowhere
found in the language of [the statutes], has no basis in
authority or considered rationale, and would undermine
the remedial purposes of [§ 34-271a] to permit members
to bring such an action when the demand on the limited
liability companies’ managers would be futile . . . .’’
(Internal quotation marks omitted.)
The defendants argue in response that the court prop-
erly dismissed the derivative action because the individ-
ual plaintiffs lacked standing. Although the assertions
they make to support this conclusion in their respective
briefs take slightly different approaches to the same
end, the defendants all maintain that the court improp-
erly inferred demand futility from the allegations of the
complaint12 but that it properly concluded, nonetheless,
that the individual plaintiffs’ failure to plead that they
received authorization, or consent, to bring or maintain
the derivative action deprived them of standing to do
so. We agree with the plaintiffs.
We begin our analysis by setting forth additional legal
principles that inform our resolution of this claim. Lim-
ited liability companies were created by statute in Con-
necticut in 1993 when our legislature enacted the Con-
necticut Limited Liability Company Act (CLLCA),
11
There is no dispute that the plaintiff LLCs were ‘‘manager-managed
limited liability compan[ies]’’ as described in § 34-271a. We have confined
our focus, therefore, to the rules and authorities that pertain to manager-
managed LLCs, unless otherwise stated.
12
Although each defendant has addressed this alternative ground for
affirmance in their briefing, no defendant properly raised this issue by filing
a preliminary statement of issues as required by Practice Book § 63-4 (a)
(1) (A). At oral argument before this court, the plaintiffs’ counsel confirmed
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Public Acts 1993, No. 93-267, codified at General Stat-
utes (Rev. to 1995) § 34-100 et seq. Styslinger v. Brew-
ster Park, LLC, 321 Conn. 312, 317, 138 A.3d 312 (2016).
CLLCA ‘‘establish[ed] the right to form an LLC13 and all
the rights and duties of the LLC, as well as all of the
rights and duties of members . . . . It permit[ted] the
members to supplement [its] statutory provisions by
adopting an operating agreement to govern the LLC’s
affairs.’’ (Footnote added.) Id. It also recognized ‘‘the
right of the limited liability company to . . . sue and
be sued.’’ (Internal quotation marks omitted.) Saunders
v. Briner, 334 Conn. 135, 158, 221 A.3d 1 (2019). CLLCA
did not, however, permit LLC members to bring and
maintain derivative actions to enforce the rights of
LLCs, and such a right did not exist at common law.
Id., 158, 163–64.
Our legislature repealed CLLCA, effective July 1,
2017; see Public Acts 2016, No. 16-97; and replaced it
with CULLCA. See Fischer v. People’s United Bank,
N.A., 216 Conn. App. 426, 433 n.4, 285 A.3d 421 (2022),
cert. denied, 346 Conn. 904, 287 A.3d 136 (2023). CUL-
LCA made ‘‘many changes to the laws governing limited
liability companies . . . .’’ Conn. Judiciary & Appropri-
ations Committees, Summary of Public Acts 2016, No.
16-97. Among other things, CULLCA established the
rights of LLC members to maintain derivative actions
to enforce rights of LLCs, and it set the parameters for
doing so. See General Statutes §§ 34-271a through 34-
271e, inclusive.14
that the plaintiffs are not claiming that the defendants have waived their
right to raise this issue by failing to do so. We therefore reach this issue
on its merits.
13
‘‘A limited liability company . . . is a hybrid business entity that offers
all of its members limited liability as if they were shareholders of a corpora-
tion, but treats the entity and its members as a partnership for tax purposes.’’
(Internal quotation marks omitted.) Scarfo v. Snow, 168 Conn. App. 482,
499, 146 A.3d 1006 (2016).
14
Section 34-271a establishes an LLC member’s right to maintain a deriva-
tive action and sets the parameters for how that right accrues. See footnote
2 of this opinion. General Statutes § 34-271b establishes who is a ‘‘[p]roper
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Rubin v. Barnett
Like its predecessor, CULLCA also permits LLC mem-
bers to supplement its statutory provisions by adopting
operating agreements. General Statutes § 34-243d (a)
provides in relevant part that an LLC’s operating agree-
ment ‘‘governs: (1) Relations among the members as
members and between the members and the limited
liability company; (2) the rights and duties under sec-
tions 34-243 to 34-283d, inclusive, of a person in the
capacity of manager; (3) the activities and affairs of the
company and the conduct of those activities and affairs;
and (4) the means and conditions for amending the
operating agreement.’’ Section 34-243d (b), in turn, pro-
vides: ‘‘To the extent the operating agreement does not
provide for a matter described in subsection (a) of this
section, the provisions of sections 34-243 to 34-283d,
inclusive, govern the matter.’’ In other words, an
operating agreement will generally control the rights
and obligations of an LLC, its members and/or managers
in the first instance, and the provisions of CULLCA will
supplement any missing provisions that the operating
agreement does not address.
CULLCA does, however, place several restrictions on
which of its provisions an operating agreement may
vary. See General Statutes § 34-243d (c) and (d). Most
notably for purposes of our analysis, ‘‘[a]n operating
agreement may not . . . (11) unreasonably restrict the
right of a member to maintain an action under sections
34-271 to 34-271e,15 inclusive . . . .’’ (Footnote added.)
General Statutes § 34-243d (c) (11).
plaintiff’’ for purposes of maintaining a derivative action. Section 34-271c
sets forth the pleading requirements for maintaining a derivative action. See
footnote 2 of this opinion. General Statutes § 34-271d establishes the right
of a limited liability company named as or made a party in a derivative
proceeding to appoint a special litigation committee to investigate the claims
and sets the parameters for exercising that right. Finally, General Statutes
§ 34-271e governs proceeds and expenses attendant to derivative actions.
15
General Statutes §§ 34-271 through 34-271e comprise part VIII of CUL-
LCA, titled ‘‘Actions by Members.’’ These statutes govern the rights of mem-
bers to maintain direct actions to enforce their own rights, and derivative
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With these principles in mind, we consider whether
the court properly concluded that the individual plain-
tiffs, who are members of the plaintiff LLCs, lacked
standing to maintain a derivative action to enforce the
rights of the plaintiff LLCs. We first note that all parties
agree that to have standing to bring and maintain a
derivative action, the individual plaintiffs were required
to satisfy the provisions of §§ 34-271a and 34-271c. They
therefore agree that, before the individual plaintiffs’
rights to bring a derivative action as members of the
plaintiff LLCs accrued, the individual plaintiffs had to
either demand that Brodie, as the manager of the plain-
tiff LLCs, cause the plaintiff LLCs to bring an action
directly, or establish that such a demand would have
been futile. All parties further agree that, for the individ-
ual plaintiffs to exercise these rights properly, they were
required to state with particularity in their complaint
the date and content of their demand and how Brodie
responded to it, or why their failure to make a demand
should be excused as futile. The defendants do not
agree, however, that the court properly determined that
the plaintiffs satisfied these requirements. Nor do they
agree that, even if proper, the court’s determination
should have ended its analysis and caused it to deny the
defendants’ motions to dismiss the individual plaintiffs’
derivative action, as the plaintiffs claim in this appeal.
We address each point of contention in turn.
A
It is undisputed that the individual plaintiffs did not
demand that Brodie bring an action to enforce the rights
of the plaintiff LLCs before they initiated this action.
The question we must address, therefore, is whether
the allegations in the complaint state ‘‘with particular-
ity’’ why the individual plaintiffs’ failure to make such
actions to enforce the rights of a limited liability company. See General
Statutes §§ 34-271 through 34-271e.
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Rubin v. Barnett
a demand should be excused as futile. General Statutes
§ 34-271c. The defendants argue that, in order to satisfy
the particularity requirement, the plaintiffs had to
‘‘explicitly’’ allege that a demand of Brodie would have
been futile, and they did not. They maintain that ‘‘[f]util-
ity ‘by inference’ . . . is not contemplated by [the text
of § 34-271c]’’ but, rather, ‘‘the statutory language is
clear that futility must be plead[ed], not implied.’’ Essen-
tially, they argue that, to allege demand futility with
particularity, plaintiffs must use specific, precise terms
that expressly delineate that ‘‘demand would be futile
because . . . .’’ (Internal quotation marks omitted.)
Guiza v. 291-293 Greenwich Avenue, LLC, supra, 2020
WL 6121446, *3. The defendants further argue that, even
if it were proper for a court to infer demand futility
where it has not been alleged expressly in a complaint,
the plaintiffs’ allegations in this case do not support
such an inference.
In response, the plaintiffs argue that, although they
did not expressly plead that making a demand on Brodie
would have been futile, ‘‘[p]leadings are to be interpre-
ted to include all that is necessarily implied, and on a
motion to dismiss the court should construe the com-
plaint in a manner likely to sustain its jurisdiction
. . . .’’ (Citations omitted.) They argue that the allega-
tions in their complaint ‘‘are sufficiently particular to
form a basis from which the trial court could have
logically inferred futility of demand on . . . Brodie.’’
We agree with the plaintiffs and conclude that the court
properly determined that the complaint sufficiently
alleged demand futility and that, consequently, the alle-
gations in the complaint satisfied the pleading require-
ments set forth in § 34-271c.
The resolution of these arguments requires that we
interpret both § 34-271c and the allegations of the com-
plaint. ‘‘To the extent that our review requires us to
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construe statutory provisions, this presents a legal ques-
tion over which our review . . . is plenary.’’ (Internal
quotation marks omitted.) Aurora Loan Services, LLC
v. Condron, 181 Conn. App. 248, 277, 186 A.3d 708(2018). ‘‘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. . . . It is a
basic tenet of statutory construction that [w]e construe
a statute as a whole and read its subsections concur-
rently in order to reach a reasonable overall interpreta-
tion.’’ (Citation omitted; internal quotation marks omit-
ted.) Townsend v. Commissioner of Correction, 226
Conn. App. 313, 331–32, 317 A.3d 1147 (2024).
‘‘The interpretation of pleadings is [also] a question of
law for the court . . . . Our review of the trial court’s
interpretation of the pleadings therefore is [also] ple-
nary. . . . Furthermore, we long have eschewed the
notion that pleadings should be read in a hypertechnical
manner. Rather, [t]he modern trend, which is followed
in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically.
. . . [T]he complaint must be read in its entirety in such
a way as to give effect to the pleading with reference
to the general theory [on] which it proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, to contain all that it fairly means, but carries with
it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
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Rubin v. Barnett
comprehension.’’ (Emphasis in original; internal quota-
tion marks omitted.) Stewart v. Old Republic National
Title Ins. Co., 218 Conn. App. 226, 242, 291 A.3d 1051(2023). Indeed, it is a ‘‘well settled principle that our
courts do not interpret pleadings so to require the use
of talismanic words and phrases.’’ (Internal quotation
marks omitted.) Carpenter v. Daar, 346 Conn. 80, 130,
287 A.3d 1027 (2023).
Section 34-271c establishes the pleading require-
ments for a derivative action by an LLC’s member. It
provides that ‘‘the complaint must state with particu-
larity: (1) The date and content of plaintiff’s demand
and the response by the managers or other members
to the demand; or (2) why the demand should be
excused as futile.’’ (Emphasis added.) General Statutes
§ 34-271c. The term ‘‘particularity,’’ however, is not
defined in § 34-271c, or in the definitions that CULLCA
sets forth in General Statutes § 34-243a. ‘‘In the absence
of a statutory definition, words and phrases in a particu-
lar statute are to be construed according to their com-
mon usage. . . . To ascertain that usage, we look to the
dictionary definition of the term.’’ (Internal quotation
marks omitted.) Considine v. Waterbury, 279 Conn.
830, 837, 905 A.2d 70 (2006); see also General Statutes
§ 1-1 (a).
‘‘Particularity’’ is commonly defined in terms of being
‘‘detailed’’ or ‘‘exact,’’ as opposed to general or ‘‘univer-
sal.’’ See Merriam-Webster’s Collegiate Dictionary (11th
Ed. 2011) p. 903 (defining particularity as ‘‘the quality
or state of being particular as distinguished from univer-
sal . . . attentiveness to detail: EXACTNESS . . . the
quality or state of being fastidious in behavior or expres-
sion’’); see also Webster’s Third New International Dic-
tionary (2002) p. 1647 (defining particularity as ‘‘the
quality or fact of being particular as opposed to univer-
sal . . . attentiveness to detail: precise carefulness (as
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of description, statement, investigation) . . . pre-
ciseness in behavior or expression: FASTIDIOUS-
NESS’’); Random House Webster’s Unabridged Diction-
ary (2d Ed. 1987) p. 1415 (defining particularity as the
‘‘quality or state of being particular . . . detailed,
minute or circumstantial character, as of description or
statement . . . attention to details; special care . . .
fastidiousness’’).
In light of these definitions, and given the fact that
there is no language included within § 34-271c that calls
for the use of specific words or terminology, we con-
clude that a sufficiently detailed recitation of facts that
support an inference that making a demand would have
been futile and that the failure to do so should be
excused will satisfy the particularity requirement in
§ 34-271c. Although plaintiffs may, in drafting their com-
plaints, choose to expressly reference the terms
‘‘demand’’ and/or ‘‘demand futility,’’ and explicitly delin-
eate why they claim that a ‘‘demand should be excused
as futile,’’ the text of § 34-271c does not command that
level of specificity.16 See, e.g., High Watch Recovery
Center, Inc. v. Dept. of Public Health, 347 Conn. 317,
333–34, 297 A.3d 531 (2023) (‘‘[i]n the absence of
express language in [a statute] mandating that [a]
request . . . take a particular form or include certain
talismanic language, we will not read any such require-
ment into the statute’’).
Indeed, there is no way to conclude, without certain
talismanic language upon which to rely, that § 34-271c
requires plaintiffs to expressly reference the terms
‘‘demand’’ or ‘‘demand futility’’ without creating a ten-
sion between the statute and the rules by which our
courts must abide when interpreting pleadings. Because
16
Although the defendants place great emphasis on the particularity
requirement and argue that § 34-271c is ‘‘plain and unambiguous’’ in this
regard, they do not offer a definition of particularity to support their claim
that the allegations in the complaint fall short of this requirement.
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Rubin v. Barnett
we presume that the legislature was aware when it
established the parameters for pleading a derivative
action in § 34-271c that courts construe pleadings
broadly and realistically, to contain all that they fairly
mean; see State v. Dabkowski, 199 Conn. 193, 201, 506
A.2d 118 (1986) (‘‘[w]hen the legislature acts, it is pre-
sumed to know the state of the law’’); we expect that
it would have used express terminology if it intended
to restrict or alter this rule of construction. Thus,
whether the allegations in a complaint expressly refer-
ence demand futility or not, they must be construed to
allege demand futility if a sufficiently detailed recitation
of facts makes it reasonable to do so. If, however, there
is not a sufficiently detailed recitation of facts to sup-
port such an inference, the complaint should not be so
construed, even if it includes explicit references to the
terms ‘‘demand’’ or ‘‘futility.’’ See Stewart v. Old Repub-
lic National Title Ins. Co., supra, 218 Conn. App. 242;
see also Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d
505 (2001) (‘‘we look beyond the language used in the
complaint to determine what the plaintiff really seeks’’).
We now address, therefore, whether the allegations
in the plaintiffs’ complaint support the inference of
demand futility. The complaint names Brodie as ‘‘the
primary defendant,’’ and five business entities that he
owns or controls, two finance lenders and a lawyer
with whom he had business dealings, as his codefen-
dants. The plaintiffs allege that Brodie acted ‘‘ultra vires,
beyond the scope of his authority under statutes and
under the provisions of the [LLCs’] operating agree-
ments’’ when he conveyed, mortgaged and/or sold the
plaintiff LLCs’ real estate assets to some of the codefen-
dants with assistance from the others. They allege that
Brodie engaged in self-dealing, and that his and the
codefendants’ collective actions forced the plaintiff
LLCs into dissolution. In addition, they allege that, after
Brodie ‘‘illegally’’ merged the plaintiff LLCs into the
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LLCs he owns or manages, he then attempted to ‘‘buy
out’’ the plaintiffs’ ‘‘interests at a lower price because
they no longer owned real estate.’’ They also allege that
‘‘Brodie has hidden and despite demand, not disclosed’’
to them books and records of both the plaintiff LLCs
and the Brodie defendant LLCs. These allegations give
rise to the plaintiffs’ claims that Brodie breached his
fiduciary duties to them and that all the defendants
violated CUTPA, for which they seek a punitive dam-
ages award. They also form the basis for the plaintiffs’
efforts to quiet title to the real estate assets they allege
were wrongfully conveyed, and their claim that Levin-
son, Brodie’s lawyer, committed legal malpractice
related to the conveyances.
The defendants posit that ‘‘[a] plaintiff may not boot-
strap allegations of futility merely by alleging that the
directors participated in the challenged transaction or
that they would be reluctant to sue themselves.’’ (Inter-
nal quotation marks omitted.) The plaintiffs’ allegations,
however, describe far more than Brodie’s mere partici-
pation in a ‘‘challenged transaction’’ or a situation
involving a likely ‘‘reluctance’’ to sue himself. Rather,
their allegations describe, with great detail and specific-
ity, a series of bad acts by not only Brodie but his
business associates as well. They raise questions about
integrity that could tarnish reputations and negatively
impact future business dealings. Moreover, they expose
the defendants to the possibility of having to pay a
punitive damages award. Perhaps most notably, they
also describe a prior instance where the plaintiffs made
a demand of Brodie, for financial documents related to
the plaintiff LLCs, which he refused. There is little rea-
son to expect that Brodie, who had already refused a
seemingly more benign demand by the plaintiffs, would
have been any more receptive to a demand that he
effectively encourage such damning allegations by caus-
ing the plaintiff LLCs to bring an action against him and
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Rubin v. Barnett
others with whom he does business. It was therefore
reasonable for the court to derive from these allegations
that it would have been futile for the plaintiffs to
demand that Brodie do so. See, e.g., Guiza v. 291-293
Greenwich Avenue, LLC, supra, 2020 WL 6121446, *3
(inferring futility from allegations that established that
‘‘any demand which the plaintiff would make would be
a demand to the company allegedly controlled by [the
individual defendant] that [the individual defendant]
cause the company to sue [the individual defendant]
for conversion, misappropriation and statutory theft’’);
see also Gazo v. Stamford, supra, 255 Conn. 266 (‘‘[i]t
is an abiding principle of jurisprudence that common
sense does not take flight when one enters a courtroom’’
(internal quotation marks omitted)). Accordingly, we
conclude that the court properly determined that the
plaintiffs complied with the requirements of §§ 34-271a
and 34-271c by alleging in their complaint a sufficiently
detailed recitation of facts that supported an inference
by the court that it would have been futile to demand
that Brodie bring an action in the name of the plain-
tiff LLCs.
B
We now address whether the court improperly deter-
mined that the individual plaintiffs lacked standing to
bring derivative claims despite its subsidiary conclusion
that the plaintiffs had sufficiently alleged demand futil-
ity. The plaintiffs argue that the terms of §§ 34-271a and
34-271c exclusively govern the analysis and that the
court’s determination that they complied with those
terms is dispositive. They argue that the court improp-
erly imposed a requirement, not contained in the rele-
vant statutes, that the individual plaintiffs receive
‘‘authorization’’ or ‘‘consent’’ from ‘‘the plaintiff busi-
ness entities to bring a [derivative] suit,’’ and improperly
concluded they lacked standing to maintain their deriva-
tive action upon finding that they had not done so.
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In response, the defendants argue that the court was
required to consider §§ 34-271a and 34-271c in conjunc-
tion with the terms of the LLCs’ operating agreements,
and the provisions of § 34-255f, to assess the individual
plaintiffs’ standing to bring and maintain their derivative
action, and that the court properly concluded, upon
doing so, that the individual plaintiffs lacked standing
because, despite demand being futile, they had ‘‘not
received authorization as required by statute to bring
suit on behalf of the [plaintiff] LLCs, or authorization
through the respective operating agreements.’’17 We
agree with the plaintiffs.
As we stated previously in this opinion, §§ 34-271a
and 34-271c collectively establish the right of a member
or members of an LLC to bring and maintain a derivative
action to enforce the rights of the LLC, as well as the
parameters for doing so. This right did not previously
exist under CLLCA, the predecessor to CULLCA, or at
common law. See Saunders v. Briner, supra, 334 Conn.
154–55. To the extent that these statutes are remedial
17
In their respective motions to dismiss and their replies to the plaintiffs’
objections thereto, the defendants argued to the trial court that the individual
plaintiffs lacked standing to maintain their derivative action solely on
account of their alleged failure to comply with the requirements set forth
in §§ 34-271a and 34-271c. In other words, they argued that the provisions
of §§ 34-271a and 34-271c exclusively governed the analysis of the individual
plaintiffs’ standing to maintain their derivative action. It was their challenge
to the plaintiff LLCs’ standing to maintain their direct action that was
predicated on an argument that the individual plaintiffs, as members of the
plaintiff LLCs, had not established that they were authorized to bring the
action in accordance with the operating agreements and/or statutory author-
ity. Although we recognize that, generally, ‘‘ ‘[t]he theory upon which a case
is tried in the trial court cannot be changed on review, and an issue not
presented to or considered by the trial court cannot be raised for the first
time on review’ ’’; J. M. v. E. M., 216 Conn. App. 814, 823, 286 A.3d 929(2022);
‘‘ ‘the issue of standing is not subject to waiver and may be raised at any
time.’ ’’ Bernblum v. Grove Collaborative, LLC, supra, 211 Conn. App. 755.
Moreover, we further recognize that the defendants’ departure from what
they argued in the trial court appears to be responsive to the manner in
which the court addressed the standing issues in its decision.
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Rubin v. Barnett
in nature, they should be construed liberally in favor
of those whom the law is intended to protect, i.e., indi-
vidual members of an LLC seeking to maintain a deriva-
tive action to enforce the rights of the LLC where the
LLC’s manager has refused, or will likely refuse, to
do so. See Hernandez v. Apple Auto Wholesalers of
Waterbury, LLC, 338 Conn. 803, 815, 259 A.3d 1157(2021); see also Zoning Commission v. Fairfield
Resources Management, Inc., 41 Conn. App. 89, 113,
674 A.2d 1335 (1996) (approving definition of ‘‘remedial
statute as one designed to correct an existing law,
redress an existing grievance, or introduce regulations
conducive to the public good, and [are] generally to be
liberally construed’’ (internal quotation marks omit-
ted)).
There is no language in the text of either § 34-271a
or § 34-271c that requires a member of an LLC to secure
‘‘authorization’’ or ‘‘consent’’ from anyone before his
or her right to bring a derivative action accrues. See
footnote 2 of this opinion. ‘‘[I]t is a well settled principle
of statutory construction that the legislature knows how
to convey its intent expressly . . . or to use broader
or limiting terms when it chooses to do so.’’ (Internal
quotation marks omitted.) Costanzo v. Plainfield, 344
Conn. 86, 108, 277 A.3d 772 (2022). ‘‘[W]here a statute,
with reference to one subject contains a given provi-
sion, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed.’’ (Internal
quotation marks omitted.) Demarco v. Charter Oak
Temple Restoration Assn., Inc., 226 Conn. App. 335,
342, 317 A.3d 1137, cert. denied, 349 Conn. 923,
A.3d (2024).
Although the legislature did not include an ‘‘authori-
zation’’ or ‘‘consent’’ requirement when it drafted the
CULLCA provisions that govern the right of LLC mem-
bers to bring and maintain a derivative action, it did
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expressly reference elsewhere in the same statutory
scheme the need for ‘‘consent’’ as a predicate to various
acts taken by the LLC in pursuit of its activities or
affairs. Section 34-255f, which establishes the parame-
ters for the ‘‘[m]anagement of a limited liability com-
pany,’’ expressly provides that, in member-managed
limited liability companies, ‘‘[m]atters in the ordinary
course of the activities of the company shall be decided
by the affirmative vote or consent of a majority in
interest of the members.’’ (Emphasis added.) General
Statutes § 34-255f (b) (2). Likewise, in both member-
managed and manager-managed limited liability compa-
nies, ‘‘[t]he affirmative vote or consent of two-thirds in
interest of the members is required to: (A) Undertake
an act outside the ordinary course of the company’s
activities and affairs; or (B) approve a transaction under
the Connecticut Entity Transactions Act,’’ and ‘‘[t]he
affirmative vote or consent of all of the members is
required to amend the operating agreement or to amend
the certificate of organization.’’ (Emphasis added.) Gen-
eral Statutes § 34-255f (b) (3) and (4), and (c) (3) and
(4). We discern from this linguistic distinction that, if
the legislature intended to require individual plaintiffs
to receive ‘‘authorization’’ or ‘‘consent’’ from anyone,
including ‘‘the plaintiff business entities,’’ before their
right to bring and maintain a derivative action accrues,
as the court found, it would have conveyed that intent
expressly when it drafted §§ 34-271a and 34-271c, but
it did not.
‘‘ ‘[A] court must construe a statute as written. . . .
Courts may not by construction supply omissions . . .
or add exceptions merely because it appears that good
reasons exist for adding them. . . . The intent of the
legislature, as this court has repeatedly observed, is to
be found not in what the legislature meant to say, but
in the meaning of what it did say. . . . It is axiomatic
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Rubin v. Barnett
that the court itself cannot rewrite a statute to accom-
plish a particular result. That is a function of the legisla-
ture.’ . . .
‘‘This rule of statutory construction has been applied
vigorously in instances in which the legislature has
repeatedly employed a term in other statutes, but did
not use it in the provision to be construed. As our
Supreme Court stated in Viera v. Cohen, 283 Conn.
412, 431, 927 A.2d 843 (2007), ‘we underscore that the
legislature frequently has used the term withdrawal.
. . . Typically, the omission of a word otherwise used
in the statutes suggests that the legislature intended a
different meaning for the alternate term.’ . . . ‘Where
a statute, with reference to one subject contains a given
provision, the omission of such provision from a similar
statute concerning a related subject . . . is significant
to show that a different intention existed.’ ’’ (Citation
omitted.) State v. Richard P., 179 Conn. App. 676, 688,
181 A.3d 107, cert. denied, 328 Conn. 924, 181 A.3d
567 (2018). We find it significant, therefore, that the
legislature did not choose to use the terms ‘‘authoriza-
tion’’ or ‘‘consent’’ in §§ 34-271a and 34-271c.
Moreover, reading into the statutes such a require-
ment would lead to bizarre results that cannot be
deemed workable under a statutory construction analy-
sis. See Townsend v. Commissioner of Correction,
supra, 226 Conn. App. 331. An LLC member has the right
to bring and maintain a derivative action to account for
and respond to those instances in which the individuals
who have the power to cause the LLC to bring an action
in the name of the LLC in the first instance will not do
so because of their improper self-interests. See Scarfo
v. Snow, 168 Conn. App. 482, 502, 146 A.3d 1006 (2016)
(derivative actions are ‘‘designed to facilitate holding
wrongdoing directors and majority shareholders to
account and also to enforce corporate claims against
third persons’’ (internal quotation marks omitted)).
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32 ,0 0 Conn. App. 1Rubin v. Barnett
Requiring a member to secure consent or authorization
to bring and maintain a derivative action from such
individuals, after those individuals either refused the
member’s demand to do so, or where making such a
demand would be futile, would nullify the member’s
right and render the very purpose of a derivative action
meaningless. See State v. Webber, 225 Conn. App. 16,
34, 315 A.3d 320 (‘‘[i]t is a basic tenet of statutory con-
struction that the legislature did not intend to enact
meaningless provisions’’ (internal quotation marks
omitted)), cert. denied, 349 Conn. 915, 315 A.3d 301(2024).
The defendants seek to circumvent the legislature’s
silence by relying on the operating agreements for the
plaintiff LLCs and § 34-255f (c) (3) as support for the
consent requirement that the court read into § 34-271a.
They argue, correctly, that ‘‘an LLC’s operating agree-
ment provides the rules applicable to an LLC and that
the [CULLCA] statutes fill in where the operating agree-
ment is silent.’’ See General Statutes § 34-243d (a) and
(b). They therefore posit that, because ‘‘[t]he LLC plain-
tiffs’ operating agreements provide a procedure for ini-
tiating suit on the LLC [p]laintiffs’ behalf,’’ which, in
the case of E.R. Holdings, LLC, and L.E. Ventures, LLC,
includes a consent or preapproval requirement, and
because ‘‘[t]here is no indication, from the text of the
respective operating agreements, that this procedure is
limited to direct actions,’’ the procedure set forth in
the operating agreements must apply to derivative
actions by members as well. They further posit that, ‘‘if
this court concludes that CULLCA, and not the . . .
[plaintiff LLCs’] operating agreements, governs authori-
zation to bring suit,’’ the individual plaintiffs were
required to comply with the consent requirement set
forth in § 34-255f (c) (3) before their right to maintain
their derivative action accrued.
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Rubin v. Barnett
Although we agree with the defendants that the
respective operating agreements establish parameters
for bringing an action in the name of the plaintiff LLCs,
we do not agree that those parameters apply to the LLC
members’ rights in this case to bring and ‘‘maintain a
derivative action to enforce the rights of a limited liabil-
ity company’’ pursuant to § 34-271a. Nor do we agree
with the defendants that the ‘‘consent requirement’’ set
forth in § 34-255f (c) (3) informs that right if the
operating agreements do not.
‘‘To the extent that we are called on to interpret the
. . . operating agreements, our standard of review is
. . . well established. Although ordinarily the question
of contract interpretation, being a question of the par-
ties’ intent, is a question of fact [subject to the clearly
erroneous standard of review] . . . [when] there is
definitive contract language, the determination of what
the parties intended by their . . . commitments is a
question of law [over which our review is plenary] . . .
and we must decide whether [the court’s] conclusions
are legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Fischer v. People’s United Bank, N.A.,
216 Conn. App. 426, 438, 285 A.3d 421 (2022), cert.
denied, 346 Conn. 904, 287 A.3d 136 (2023). Here, the
individual plaintiffs challenge the court’s interpretation
of the relevant operating agreements as it relates to the
court’s ultimate conclusion that they were required to
secure authorization or consent from the ‘‘plaintiff busi-
ness entities’’ to maintain their derivative action. Thus,
our review is plenary. Fischer v. People’s United Bank,
N.A., supra, 438.
We begin by observing that none of the operating
agreements references derivative actions by its mem-
bers. In other words, the operating agreements do not
expressly ‘‘provide for’’ derivative actions by members;
General Statutes § 34-243d (b); and, thus, the provisions
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of § 34-271a should exclusively govern the analysis. See
General Statutes § 34-243d (b) (provisions of CULLCA
apply where operating agreement does not provide mat-
ter, or matters, pertaining to relations among members
and between members and limited liability company,
and activities and affairs of company and conduct
thereof); see also 418 Meadow Street Associates, LLC
v. Clean Air Partners, LLC, 304 Conn. 820, 836, 43 A.3d
607 (2012) (‘‘if the operating agreement is silent as to
the applicability of the statute, the statute controls’’).
Moreover, the operating agreements of E.R. Holdings,
LLC, and L.E. Ventures, LLC, each establish that their
manager, Brodie, is ‘‘solely responsible for the manage-
ment of the [c]ompany’s business’’ and that his ‘‘rights
and powers . . . include the right and power to man-
age all day to day activities of the [c]ompany,’’ subject
to certain specified restrictions. His ‘‘rights and powers’’
include, among other things, ‘‘commenc[ing] or
defend[ing] against litigation with respect to the
[c]ompany or any assets of the [c]ompany as deemed
advisable’’ but only if he first secures ‘‘written approval
(which may include an email) of the aggregate members
holding [s]eventy percent (70%) of the equity interest
in the [c]ompany . . . .’’ (Emphasis added.) Both
agreements are clear that ‘‘no [m]ember shall have the
right . . . [t]o take part in the control of the [c]ompany
business or to sign for or to bind the [c]ompany, such
power being vested in the [m]anager.’’ These provisions,
as the Brodie defendants aptly recognize in their brief,
‘‘empower the [m]anager to bring suit only with written
approval of 70 [percent] of the equity interest in the
[c]ompany, but nowhere do those provisions empower
anyone other than the [m]anager to bring suit in the
[c]ompany’s name, ever. To the contrary, they prohibit
other members from undertaking such activity.’’18
(Emphasis added.)
18
We recognize that the Brodie defendants offer this interpretation as
part of their argument that the plaintiff LLCs lack standing to maintain their
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Rubin v. Barnett
Whalley Group, LLC’s operating agreement vests
broader rights and powers in its manager, Brodie, by
giving him the ‘‘exclusive control of the business of
the [c]ompany.’’ That operating agreement, unlike the
operating agreements of E.R. Holdings, LLC, and L.E.
Ventures, LLC, places no restrictions or contingencies
on Brodie’s ability to exercise his power to ‘‘bring or
defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of
or against the [c]ompany . . . .’’ (Emphasis added.)
Like the members of E.R. Holdings, LLC, and L.E. Ven-
tures, LLC, Whalley Group, LLC’s members ‘‘are not
agents of the [c]ompany and do not have the authority
to act for, or bind, the [c]ompany in any matter.’’ As
such, only Brodie has the power to act for and bind
Whalley Group, LLC, by resorting to legal action, and
its members, similarly, are prohibited from undertaking
such activity.
We reiterate, however, that § 34-271a expressly
authorizes an LLC’s member to ‘‘maintain a derivative
action to enforce the [rights of the LLC]’’ if the LLC’s
manager refuses the member’s demand to do so, or if
making such a demand of the manager would be futile.
The operating agreements’ prohibitions on members
other than Brodie commencing litigation or resorting
to legal action pertaining to the plaintiff LLCs, therefore,
directly contradict, and cannot be reconciled with, § 34-
271a. Indeed, the right that § 34-271a affords an LLC’s
member to maintain a derivative action to enforce the
rights of an LLC would be completely eviscerated if
the procedures set forth in the operating agreements
applied to derivative actions, because the member’s
direct action because the individual plaintiffs, as members of the LLCs, were
not authorized to and, in fact, could not be authorized to, bring an action
in the plaintiff LLCs’ names. We agree with this interpretation and find that
it applies to our analysis of the individual plaintiffs’ standing to maintain
their derivative action, as well.
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36 ,0 0 Conn. App. 1Rubin v. Barnett
right would then belong exclusively to the LLC’s man-
ager, who either already refused, or would likely refuse,
the member’s demand to cause the LLC to bring the
action in the first instance. This unworkable construct
runs afoul of the admonition set forth in § 34-243d (c)
(11) that an operating agreement may not ‘‘unreason-
ably restrict the right of a member to maintain’’ a deriva-
tive action by leaving the LLC’s members with no rights
in this regard while, at the same time, insulating their
manager from claims of wrongdoing. See Scarfo v.
Snow, supra, 168 Conn. App. 502.
We conclude, therefore, that the procedures that the
operating agreements of E.R. Holdings, LLC, L.E. Ven-
tures, LLC, and Whalley Group, LLC, mandate for Bro-
die, their manager, to bring and maintain legal actions
with respect to the plaintiff LLCs should not have
informed the court’s analysis of the individual plaintiffs’
standing to maintain their derivative action.19
Similarly, the provision of § 34-255f (c) (3), which
requires ‘‘[t]he affirmative vote or consent of two-thirds
in interest of the members . . . to . . . [u]ndertake an
act outside the ordinary course of the company’s activi-
ties and affairs,’’ should not have had any bearing on
19
We note that the court relied on the fact that ‘‘[t]he operating agreements
of E.R. Holdings [LLC] and L.E. [Ventures, LLC] require ‘written approval’
to bring suit’’ and its finding that ‘‘there [had] been no written approval’’ in
accordance with that requirement in support of its conclusion that the
individual plaintiffs lacked standing to maintain their derivative action.
Although our broad conclusion that the court should not have relied on the
operating agreements to assess the individual plaintiffs’ standing to maintain
their derivative action necessarily addresses this finding and conclusion, we
observe, nonetheless, that, even if the procedures set forth in the operating
agreements were somehow germane to the question of the individual plain-
tiffs’ standing to maintain their derivative action, the obligation set forth in
the operating agreements to secure written authorization before the right
to initiate an action accrued rested with the LLCs’ manager, not the LLCs’
members. As we stated previously in this opinion, the operating agreements
vest exclusive authority to commence legal action in the LLCs’ manager,
and they prohibit the members from doing so.
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Rubin v. Barnett
the court’s analysis of the individual plaintiffs’ standing
to bring and maintain their derivative action. Sections
34-271a and 34-271c specifically pertain to ‘‘[d]erivative
action[s]’’ by an LLC’s members and, thus, the terms
of those statutes take precedence over § 34-255f (c)
(3)’s general reference to ‘‘act[s] outside the ordinary
course of the company’s activities and affairs,’’ which,
the defendants argue, includes bringing a legal action.
See FuelCell Energy, Inc. v. Groton, 350 Conn. 6–7,
A.3d (2024) (‘‘[w]e adhere to the principle of
construction that specific terms covering the given sub-
ject matter will prevail over general language of the
same or another statute which might otherwise prove
controlling . . . in the absence of express contrary leg-
islative intent . . . and the principle that the legisla-
ture is always presumed to have created a harmonious
and consistent body of law’’ (citations omitted; internal
quotation marks omitted)).
As we stated previously in this opinion, there is no
consent requirement in either § 34-271a or § 34-271c.
All that an LLC’s member must do to exercise his or
her right to bring a derivative action in the name of the
LLC is either to make an unheeded demand of the LLC’s
manager to file an action, or to establish that making
such a demand would have been futile. General Statutes
§ 34-271a. If the member satisfies either one of those
requirements, all the member must do to properly exer-
cise the right to maintain a derivative action is ‘‘state
with particularity’’ what the demand was, when it was
made, and how the manager responded or why the
failure to make a demand should be excused as futile.
General Statutes § 34-271c. Because the individual
plaintiffs satisfied those requirements here, they had
standing to maintain their derivative action. Accord-
ingly, the court had subject matter jurisdiction over that
action and it should not have dismissed that portion of
the plaintiffs’ complaint. We conclude, therefore, that
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the court improperly granted the defendants’ motions
to dismiss the individual plaintiffs’ derivative actions.
II
THE PLAINTIFF LLCS’ DIRECT ACTION
The plaintiffs next claim that the court improperly
found that the plaintiffs had not ‘‘fairly or adequately
alleged authorization to bring suit’’ and, thus, improp-
erly concluded that the plaintiff LLCs lacked standing
to maintain a direct action. In advancing this claim, the
plaintiffs acknowledge that the court did not make an
explicit determination with respect to their claim that
they were properly authorized to bring the action in
the plaintiff LLCs’ names, but they argue that ‘‘such a
finding is necessarily implied by the trial court’s finding
with respect to authorization in its ruling on the deriva-
tive claims and by the judgment.’’ They further argue,
as a matter of substance, that there was before the
court ‘‘clear evidence that a vote was taken by the
[plaintiff] LLCs to authorize suit,’’ that the court’s ‘‘find-
ing that no written authorization was made for the plain-
tiff LLCs [to bring and maintain their action] was clearly
erroneous,’’ and that, consequently, they established
the plaintiff LLCs’ standing.
The Brodie defendants agree with the plaintiffs that
the ‘‘memorandum of decision does not explicitly
address any direct claims by the three [plaintiff] LLCs,
yet dismisses the entire action.’’ They posit, however,
that ‘‘[t]he logical conclusion is that the trial court con-
cluded that the action does not allege any direct claims
by the three [plaintiff] LLCs.’’ They further argue that,
if we conclude that the complaint alleges direct actions
by the plaintiff LLCs, we ‘‘should nevertheless conclude
that the plaintiffs failed to establish standing to do so.’’
CoreVest credits the court for properly ‘‘conclud[ing]
that the plaintiffs failed to establish standing to maintain
a direct action because they had not adequately alleged
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Rubin v. Barnett
authorization to bring suit,’’ and Levinson agrees that
the court properly concluded that the plaintiffs failed to
establish their standing to bring a direct action ‘‘because
they failed to plead or show that they obtained authori-
zation from the [plaintiff LLCs] . . . .’’
We conclude that the complaint reasonably may be
construed to allege direct claims by the plaintiff LLCs
and that the court implicitly addressed and disposed
of those claims. We further conclude that, in doing so,
the court properly determined that the plaintiff LLCs
did not have standing to maintain their direct actions.
We begin, as we must, by construing the allegations
of the complaint reasonably and in a manner most favor-
able to the plaintiffs. See Conboy v. State, supra, 292
Conn. 651. Further, because our doing so presents a
question of law, we exercise plenary review. Stewart
v. Old Republic National Title Ins. Co., supra, 218 Conn.
App. 242.
Each of the plaintiff LLCs is a plaintiff named in this
action. Moreover, the plaintiff LLCs are parties to each
count of the complaint and they are necessarily
included within the numerous broad references made
to ‘‘the plaintiffs’’ throughout the complaint.20 Finally,
and significantly, all of the injuries the plaintiffs allege
to have sustained are, or derive from, alleged acts that
left the plaintiff LLCs without any assets and rendered
them valueless.21 In the first count of the complaint,
20
The defendants could have filed a request to revise the complaint that
sought to have the plaintiffs articulate with more precision which plaintiffs
were making which claims and/or the nature of those claims, but they did
not. Such a revision would have aided the court in ascertaining the precise
nature of the various claims and in determining the standing questions
related thereto.
21
The crux of the plaintiffs’ claims is set forth in paragraph 3 of their
complaint, which alleges that the plaintiff LLCs ‘‘have been dissolved by
the act of the primary defendant . . . Brodie . . . because he has, ultra
vires, beyond the scope of his authority under the statutes and under the
provisions of the operating agreements, purported to convey, mortgage, and
sell all the real estate and assets owned by each of the LLCs.’’ This paragraph
is incorporated by reference into each of the complaint’s four counts.
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40 ,0 0 Conn. App. 1Rubin v. Barnett
for example, the plaintiffs allege that Brodie’s alleged
breach of his fiduciary duty to them caused damages ‘‘to
the Rubin investors directly and/or . . . to the value
of their interests in the three LLCs,’’ and they seek to
recoup the value of the LLCs’ real estate assets accord-
ingly. Likewise, in the second count, they seek to quiet
title to the real estate assets allegedly belonging to the
plaintiff LLCs. In the third count, they claim damages
for alleged CUTPA violations related to the value of the
plaintiff LLCs’ real estate assets, as well as for loss of
use, rentals and the inconvenience of their attempts to
resecure ‘‘their rightful property in the LLCs . . . .’’
Finally, in the fourth count, they allege an obligation
by the ‘‘LLCs themselves’’ to pay back certain sums
occasioned by Levinson’s alleged legal malpractice. For
these reasons, the complaint is reasonably construed,
in part, to state direct claims by the plaintiff LLCs to
recover damages for injuries they allegedly sustained
at the hands of the defendants. See, e.g., Bernblum v.
Grove Collaborative, LLC, supra, 211 Conn. App. 756(confirming that limited liability company has power
to sue in its own name).
We next construe the court’s memorandum of deci-
sion to determine whether the court considered and
resolved the plaintiff LLCs’ direct claims. It is well set-
tled that ‘‘a judicial opinion must be read as a whole,
without particular portions read in isolation, to discern
the parameters of its holding. . . . Effect must be given
to that which is clearly implied as well as to that which
is expressed. . . . The construction of a judgment is
a question of law for the court. . . . As a general rule,
judgments are to be construed in the same fashion as
other written instruments. . . . The determinative fac-
tor is the intention of the court as gathered from all
parts of the judgment. . . . The judgment should admit
of a consistent construction as a whole. . . . To deter-
mine the meaning of a judgment, we must ascertain
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Rubin v. Barnett
the intent of the court from the language used and, if
necessary, the surrounding circumstances.’’ (Citations
omitted; internal quotation marks omitted.) Iadanza v.
Toor, 226 Conn. App. 736, 749–50, A.3d (2024).
Although the court expressly referenced only its dis-
missals of the ‘‘derivative suit’’ and ‘‘the individual plain-
tiffs’ direct suit’’ in its memorandum of decision, it
plainly acknowledged that the defendants had raised
three distinct challenges to standing, which included
their claim that the plaintiff LLCs lacked standing to
maintain their direct action ‘‘because they have not
taken an official act authorizing suit . . . . ’’ Moreover,
even though the court addressed this claim within the
‘‘derivative action’’ section of its discussion, it
addressed the concepts of demand futility, which the
defendants raised in relation to their challenge to the
individual plaintiffs’ standing to maintain their deriva-
tive action, and ‘‘consent’’ or authorization, which the
defendants raised in relation to their challenge to the
plaintiff LLCs’ standing to maintain their direct action,
separately. Finally, it dismissed the entire action on the
basis of lack of subject matter jurisdiction. To do so,
the court would have had to dispose of the three distinct
challenges to standing it recognized and conclude, in
doing so, that the plaintiff LLCs lacked standing to main-
tain their direct action. We therefore address the plain-
tiffs’ challenge to the propriety of the court’s conclusion
in this regard.
The plaintiffs argue that they established the plaintiff
LLCs’ standing to maintain their direct action because
they attached to their complaint ‘‘clear evidence that
a vote was taken by the LLCs to authorize suit.’’ We
disagree.
At the outset, we observe that the court predicated
its conclusion regarding the plaintiff LLCs’ standing on
its determination that ‘‘[t]he operating agreements of
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E.R. Holdings, [LLC] and L.E. [Ventures, LLC] clearly
delineate the need to seek written consent to authorize
suit which was not established here,’’ and, similarly,
that the plaintiffs had not established consent to bring
suit in the name of Whalley Group, LLC, in accordance
with § 34-255f. Although we agree with the court that
consent or authorization is a necessary prerequisite to
bringing a direct action in the name of the plaintiff
LLCs, at least insofar as E.R. Holdings, LLC, and L.E.
Ventures, LLC, are concerned, we part ways with the
court to the extent that its determination suggests that
the individual plaintiffs would have had the right to
initiate an action in the name of the plaintiff LLCs if
they had received that consent and that, consequently,
the plaintiff LLCs would have had standing to maintain
it. Even so, we agree with the court’s conclusion that
the plaintiff LLCs did not have standing to maintain
their direct action. See Tracey v. Miami Beach Assn.,
216 Conn. App. 379, 396 n.19, 288 A.3d 629 (2022) (‘‘it is
axiomatic that [an appellate court] may affirm a proper
result of the trial court for a different reason’’ (internal
quotation marks omitted)), cert. denied, 346 Conn. 919,
291 A.3d 1040 (2023).
Our resolution of this issue is dependent upon the
interpretation of the operating agreements of E.R. Hold-
ings, LLC, L.E. Ventures, LLC, and Whalley Group, LLC,
that we articulated in part I B of this opinion. See Gen-
eral Statutes § 34-243d (a) (providing that operating
agreements govern, among other things, relations
between members and limited liability company, rights
and duties of manager and activities and affairs of com-
pany and conduct thereof). As we explained, all three
operating agreements establish that the respective LLC
members do not have the authority to bring or maintain
any action by, or in the name of, the plaintiff LLCs.
Only the LLCs’ manager, Brodie, has the power to act
for, and bind each LLC, and only Brodie can ‘‘commence
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Rubin v. Barnett
. . . litigation’’ in the name of E.R. Holdings, LLC, and
L.E. Ventures, LLC, and ‘‘resort to legal action’’ in the
name of Whalley Group, LLC. To exercise his power to
do so under the operating agreements of E.R. Holdings,
LLC, and L.E. Ventures, LLC, it is Brodie who requires
‘‘written approval (which may include an email) of the
aggregate members holding [s]eventy percent (70%) of
the equity interest in the [c]ompany,’’ whereas his
power to do so under Whalley Group, LLC’s operating
agreement is unrestricted. As such, even if the individ-
ual plaintiffs, as members of the LLCs, had received
authorization, they would not have been empowered
to initiate a direct action in the name of the plaintiff
LLCs. Because the individual plaintiffs, and not Brodie,
initiated the direct action by the plaintiff LLCs, the
plaintiff LLCs lacked standing to maintain it. We there-
fore affirm the judgment in this regard.
III
THE INDIVIDUAL PLAINTIFFS’ DIRECT ACTION
The plaintiffs next claim that the court improperly
concluded that the individual plaintiffs lacked standing
to maintain their direct action because they had not
alleged ‘‘direct harm to themselves which is not solely
the result of the harm done upon the LLCs.’’ They argue
that individual members ‘‘can maintain an action even
if it is related to an injury suffered by the LLC and even
if [it] results from the same actions, provided that it is
not solely the result of an injury to the LLC.’’ (Emphasis
in original.) They maintain that they ‘‘adequately
plead[ed] injuries suffered by them directly that were
‘not solely’ injuries suffered by the plaintiff LLCs.’’ The
defendants argue, in response, that the direct claims
brought by the individual plaintiffs belong to the plain-
tiff LLCs, and the individual plaintiffs had no standing
to pursue them. They argue that ‘‘the substantive allega-
tions of harm contained in the plaintiffs’ complaint
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44 ,0 0 Conn. App. 1Rubin v. Barnett
[involved] injur[ies] to the [plaintiff LLCs]’’ and the indi-
vidual plaintiffs merely allege derivative injuries they
have no standing to assert. We agree with the defen-
dants.
We are guided by the same standards and legal princi-
ples regarding standing, CULLCA, statutory interpreta-
tion and construction of pleadings upon which we relied
in the preceding parts of this opinion. We further
observe the well settled common-law rules that, gener-
ally, ‘‘a plaintiff lacks standing unless the harm alleged
is direct rather than derivative or indirect. . . . [I]f the
injuries claimed by the plaintiff are remote, indirect or
derivative with respect to the defendant’s conduct, the
plaintiff is not the proper party to assert them and lacks
standing to do so. [If], for example, the harms asserted
to have been suffered directly by a plaintiff are in real-
ity derivative of injuries to a third party, the injuries
are not direct but are indirect, and the plaintiff has no
standing to assert them. . . .
‘‘The requirement of directness between the injuries
claimed by the plaintiff and the conduct of the defen-
dant also is expressed, in our standing jurisprudence,
by the focus on whether the plaintiff is the proper party
to assert the claim at issue. In order for a plaintiff to
have standing, it must be a proper party to request
adjudication of the issues. . . .
‘‘It is axiomatic that [a] limited liability company is
a distinct legal entity whose existence is separate from
its members. . . . [It] has the power to sue or to be
sued in its own name . . . or may be a party to an
action brought in its name by a member or manager.
. . . A member or manager, however, may not sue in
an individual capacity to recover for an injury based
on a wrong to the limited liability company.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) Bernblum v. Grove Collaborative, LLC,
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0 Conn. App. 1 ,0 45
Rubin v. Barnett
supra, 211 Conn. App. 756–57; see also, e.g., Channing
Real Estate, LLC v. Gates, 326 Conn. 123, 138, 161 A.3d
1227 (2017) (member of limited liability company can-
not recover for injury allegedly suffered by member’s
company and, accordingly, lacks standing to bring claim
in individual capacity).
The legislature enacted § 34-27122 as part of CULLCA,
against this common-law backdrop. See Considine v.
Waterbury, supra, 279 Conn. 844 (‘‘the legislature is
presumed to be aware of prior judicial decisions involv-
ing common-law rules’’ (internal quotation marks omit-
ted)). Section 34-271 establishes that an LLC member
may maintain a direct action ‘‘against another member,
a manager or the limited liability company to enforce the
member’s rights and otherwise protect the member’s
interests’’ if the member ‘‘plead[s] and prove[s] an
actual or threatened injury that is not solely the result
of an injury suffered or threatened to be suffered by the
limited liability company.’’ (Emphasis added.) General
Statutes § 34-271 (a) and (b).23
22
General Statutes § 34-271 provides: ‘‘(a) Subject to subsection (b) of
this section, a member may maintain a direct action against another member,
a manager or the limited liability company to enforce the member’s rights
and otherwise protect the member’s interests, including rights and interests
under the operating agreement or sections 34-243 to 34-283d, inclusive, or
arising independently of the membership relationship.
‘‘(b) A member maintaining a direct action under this section must plead
and prove an actual or threatened injury that is not solely the result of an
injury suffered or threatened to be suffered by the limited liability company.’’
23
We note that the plaintiffs contend that the common-law rule that pre-
ceded the enactment of § 34-271, which they claim required an LLC member
to demonstrate ‘‘a specific, personal, and legal interest separate from that
of the LLC’’ to have standing to bring and maintain a direct action; (internal
quotation marks omitted); is more restrictive than the rule prescribed in
§ 34-271, which was enacted as part of CULLCA. They claim that the use
of the phrase ‘‘not solely the result of’’ in § 34-271 (b) ‘‘changes the threshold
requirement for a cause of action on behalf of an individual member from
one requiring the LLC’s member’s injury to be wholly ‘separate’ from the
LLC’s injury, to one that can be suffered by the LLC as well, provided that
the member suffers the injury in some individual capacity.’’ This backdrop
forms the basis for the argument they make on appeal that individual mem-
bers ‘‘can maintain an action even if it is related to an injury suffered by
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46 ,0 0 Conn. App. 1Rubin v. Barnett
The crux of the plaintiffs’ claims is that the primary
defendant, Brodie, with assistance from his codefen-
dant business associates, conveyed and sold all of the
real estate assets belonging to the plaintiff LLCs, that
these actions forced the plaintiff LLCs into dissolution,
and that the plaintiffs were injured as a result. The
plaintiff LLCs owned the real estate assets that were
alleged to have been wrongfully conveyed, however,
and the plaintiff LLCs would have been the direct benefi-
ciaries of any appreciation in value or income that those
assets generated. Although the individual plaintiffs
allege that they were damaged ‘‘directly’’ as a result of
the defendants’ alleged misdeeds, any benefits they had
and would have received had the real estate assets
not been conveyed and if the plaintiff LLCs were not
dissolved, would have flowed to them only through the
plaintiff LLCs. As such, if there were injuries to the
individual plaintiffs, those injuries were sustained by
the plaintiff LLCs in the first instance and by the individ-
ual plaintiffs in the second. In other words, their alleged
injuries were ‘‘solely the result of [injuries] suffered
. . . by’’ the plaintiff LLCs, and the individual plaintiffs,
therefore, lacked standing to maintain their direct
action. General Statutes § 34-271 (b); see also, e.g.,
Scarfo v. Snow, supra, 168 Conn. App. 504 (LLC member
may not bring action in individual capacity to recover
for injuries that are result of injuries company has suf-
fered); Padawer v. Yur, 142 Conn. App. 812, 817, 66
A.3d 931 (same), cert. denied, 310 Conn. 927, 78 A.3d
146 (2013); O’Reilly v. Valletta, 139 Conn. App. 208,
216, 55 A.3d 583 (2012) (same), cert. denied, 308 Conn.
914, 61 A.3d 1101 (2013); Wasko v. Farley, 108 Conn.
the LLC and even if [it] results from the same actions, provided that it is
not solely the result of an injury to the LLC.’’ (Emphasis in original.) Because
we conclude that the injuries that the individual plaintiffs have alleged in
this action are ‘‘solely the result of [injuries] to the LLC[s],’’ we do not
address the propriety of this proffered distinction.
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0 Conn. App. 1 ,0 47
Rubin v. Barnett
App. 156, 170, 947 A.2d 978 (same), cert. denied, 289
Conn. 922, 958 A.2d 155 (2008).
IV
The plaintiffs’ final claim is that the court’s failure
to treat the defendants’ motions to dismiss as motions
to strike to allow them to cure ‘‘any pleading defect
by repleading’’ was improper. We decline to review
this claim.
The sole basis the plaintiffs offer to support this claim
is their assertion that, ‘‘[i]f the court wished the plain-
tiffs to say the magic words that ‘demand would be
futile because Brodie is a defendant,’ then it should
treat any such pleading defect as it would a motion
to strike and allow the plaintiffs the opportunity to
replead.’’ In fact, we have concluded that those ‘‘magic
words’’ were not necessary and that the court properly
inferred demand futility from the detailed recitation of
facts that the plaintiffs alleged. Consequently, we need
not consider this claim.
In sum, we conclude that the court properly deter-
mined that the plaintiff LLCs and the individual plain-
tiffs lacked standing to maintain their direct actions
and, accordingly, properly dismissed those actions for
lack of subject matter jurisdiction. We therefore affirm
the judgment in those regards. We further conclude,
however, that the court improperly determined that
the individual plaintiffs lacked standing to maintain a
derivative action to enforce the rights of the plaintiff
LLCs when their complaint sufficiently alleged demand
futility, and we therefore reverse the judgment insofar
as the court dismissed the individual plaintiffs’ deriva-
tive action for lack of subject matter jurisdiction and
remand the case for further proceedings.24
24
In accordance with this remand, we direct the trial court to address
the additional claims that the Brodie defendants and Levinson made in
support of dismissal regarding the failure to join Rohr as an indispensable
party and insufficient service of process. Although we acknowledge that
the Brodie defendants have advanced the arguments in their brief to this
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48 ,0 0 Conn. App. 1Rubin v. Barnett
The judgment is reversed with respect to the dis-
missal of the individual plaintiffs’ derivative action for
lack of subject matter jurisdiction and the case is
remanded for further proceedings consistent with this
opinion; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
court that (1) Rohr is not a party to this action and that the plaintiffs had
not established their authority to act on his behalf by proxy, and (2) this
court should dismiss all or some of the plaintiffs’ action due to insufficiency
of process insofar as it failed to include Rubin’s address, the court made no
express findings with respect to these issues. As such, the court’s statements
regarding the absence of proof that Rubin was acting under power of attorney
for Rohr and the assertion by the plaintiffs’ counsel that Rohr did not want
to be a party to this action, which were made in the context of its assessment
of the plaintiffs’ authority to maintain their actions, are of no import; see
footnote 7 of this opinion; and we cannot find facts in the first instance.
See In re Oreoluwa O., 321 Conn. 523, 540–41 n.9, 139 A.3d 674 (2016) (‘‘[I]t
is elementary that neither [the Supreme Court] nor the Appellate Court can
find facts in the first instance. . . . [A]n appellate court cannot find facts
or draw conclusions from primary facts found, but may only review such
findings to see whether they might be legally, logically and reasonably found
. . . .’’ (Emphasis in original; internal quotation marks omitted.)).