One Country, LLC v. Johnson

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ONE COUNTRY, LLC, ET AL. v. MICHAEL
JOHNSON ET AL.
(SC 19084)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Robinson, Js.
Argued April 25—officially released October 28, 2014
David Eric Ross, for the appellant (named defen-
dant).
John B. Farley, with whom were Lawrence P. Weis-
man and, on the brief, Eric D. Bernheim, for the appel-
lee (plaintiff Scott Porter).
Opinion
ZARELLA, J. In this action brought by the plaintiff
Scott Porter1 to enforce ‘‘backstop’’ guarantee agree-
ments entered into by the parties for a debt arising
from a failed residential renovation project, the named
defendant, Michael Johnson,2 appeals from the judg-
ment of the Appellate Court, which reversed the trial
court’s judgment in his favor. The defendant specifically
challenges the plaintiff’s standing to bring this action.
The defendant claims that the plaintiff’s tax treatment
of a debt that the defendant guaranteed effectively
divested the plaintiff of his interest in the debt, and,
therefore, the plaintiff has no standing to enforce their
backstop guarantee agreement. We disagree and,
accordingly, affirm the judgment of the Appellate Court.
The following facts, some of which are set forth in
the opinion of the Appellate Court, and procedural his-
tory are relevant to our disposition of this appeal. ‘‘In
late 2004, the plaintiff and his then wife, Jennifer Porter,3
resided at 3 Country Road in [the town of] Westport.
At that time, the owners of 1 Country Road were plan-
ning to sell their property. The Porters believed that
they could make a significant profit if they purchased
the adjoining property, enlarged and restored the house,
and then sold the property. Because they had no experi-
ence in the restoration of properties or investment in
real estate, Jennifer Porter approached [the defendant],
an acquaintance, who was involved in the restoration
of another residential property . . . . [The defendant]
introduced the Porters to [Peter] Pratley, who [was a]
. . . general contractor . . . .
‘‘The Porters, [the defendant], and Pratley formed
a limited liability company, One Country, LLC [One
Country] . . . to purchase and to redevelop the 1
Country Road property. . . . [T]he Porters invested
$200,000 [in One Country] through their jointly owned
limited liability company, Iboport, LLC [Iboport]. [The
defendant] and Pratley each invested $50,000.’’ (Foot-
note altered.) One Country, LLC v. Johnson, 137 Conn.
App. 810, 812–13, 49 A.3d 1030 (2012).
In early 2005, One Country acquired the property at
1 Country Road with the funds invested by its members
and a $1,080,000 loan from Connecticut Community
Bank, N.A. (bank),4 which was secured by a mortgage
on the property. ‘‘As additional security, the plaintiff,
as the sole guarantor, unconditionally guaranteed the
payment of the acquisition loan by One Country . . . .
Because [the defendant] and Pratley already had signed
guarantees to the bank in connection with [another real
estate] project, the bank was unwilling to rely on their
guarantees [for One Country’s debt].’’ Id., 813. One
Country also sought from the bank a $1,000,000 loan
to finance the construction required to renovate the 1
Country Road property.
‘‘Sometime after the execution of the acquisition loan
documents, but before the construction loan closing,
the plaintiff forwarded what he termed ‘backstop’ guar-
antee agreements to Jennifer Porter, [the defendant],
and Pratley. The plaintiff, an attorney employed as . . .
in-house counsel [for a corporation], drafted the guaran-
tee [agreements]. [The plaintiff] indicated that he would
not sign [a] personal guarantee for the construction
loan to One Country . . . unless Jennifer Porter, [the
defendant] and Pratley signed guarantees that provided
protection to him in the event [that] he was required
to honor either of his personal guarantees to the bank.5
The three backstop [guarantee agreements] were signed
before the plaintiff signed his second personal guaran-
tee to the bank at the construction loan closing.
‘‘Despite the bank financing and an additional
$200,000 in contributions raised through the admittance
of four new members to [One Country], [One Country]
exhausted all of its capital in 2007 and was unable to
complete the renovations to the property. In 2008, after
[One Country] ceased making payments to the bank,
the bank commenced foreclosure proceedings against
[One Country] and the plaintiff, as guarantor. The court
rendered a judgment of strict foreclosure, and the bank
then sought a deficiency judgment against the plaintiff.
The bank and the plaintiff resolved the matter by enter-
ing into a settlement agreement, in which the bank
agreed to withdraw its motion for a deficiency judgment
upon the plaintiff’s payment of $300,000. The plaintiff
paid $300,000 to the bank and commenced the present
action against [Jennifer Porter, the defendant, and Prat-
ley] to enforce the backstop [guarantee agreements].
‘‘A court trial was held . . . in July, 2010. More than
forty exhibits were submitted as evidence, including
copies of the plaintiff’s personal guarantees to the bank,
the backstop [guarantee agreements] signed by [the
defendant and Pratley], and the settlement agreement
between the plaintiff and the bank. One of the plaintiff’s
witnesses, Steven Glaser, was a certified public accoun-
tant who had prepared tax returns for the plaintiff,
[Iboport and One Country] for 2008 and 2009. He testi-
fied that the plaintiff made the $300,000 settlement pay-
ment to the bank and then he indicated how that pay-
ment was treated for tax purposes.’’ (Footnotes
altered.) Id., 813–14.
On its 2008 federal income tax return, One Country
claimed a $300,000 loss based on the plaintiff’s settle-
ment payment to the bank.6 Iboport, the limited liability
company through which the Porters held their interest
in One Country, claimed on its 2008 federal income tax
return the plaintiff’s $300,000 payment as a loss and
took a deduction for the loss. The plaintiff also claimed
a deduction on his personal income tax return for Ibo-
port’s claimed $300,000 loss.7 On their 2009 federal
income tax returns, One Country reported receiving a
$300,000 capital contribution from Iboport, and Iboport
reported receiving a $300,000 capital contribution from
the plaintiff. In sum, Glaser treated the plaintiff’s
$300,000 payment to the bank, which satisfied One
Country’s debt to the bank, as a capital contribution to
Iboport so that Iboport and the plaintiff could claim
significant deductions on their federal income tax
returns. In a memorandum explaining this tax strategy,
however, Glaser suggested that, if the plaintiff were to
recover any money from the signators to the backstop
guarantee agreements, the plaintiff would be required
to adjust the tax benefit that he received in 2008 by
claiming the $300,000 loss.8
The trial court found that the backstop guarantee
agreements were supported by consideration and that
neither the principle of equitable estoppel nor the prin-
ciple of promissory estoppel barred the plaintiff from
enforcing them. The trial court nonetheless concluded
that the backstop guarantee agreements were unen-
forceable. The court reasoned that the plaintiff had
‘‘extinguished’’ the debt owed to him under the agree-
ments by ‘‘convert[ing]’’ it into an equity investment in
Iboport when he treated his $300,000 payment to the
bank as a capital contribution to Iboport instead of as
an unsatisfied debt owed to him by One Country, thus
precluding him from recovering under the agreements.
Accordingly, the court rendered judgment for the defen-
dant and Pratley.
Thereafter, the plaintiff appealed to the Appellate
Court. In a split decision, the Appellate Court reversed
the judgment of the trial court, concluding that the
plaintiff was entitled to enforce the backstop guarantee
agreements. One Country, LLC v. Johnson, supra, 137
Conn. App. 818–21. The Appellate Court majority con-
cluded that the agreements unconditionally bound the
defendant and Pratley to pay the plaintiff for One Coun-
try’s debt and that the plaintiff’s tax treatment of his
$300,000 payment to the bank, made in satisfaction of
One Country’s debt, was irrelevant to the issue of
whether he was entitled to repayment under the terms
of the agreements. Id., 818–20. The dissent disagreed
on the ground that the plaintiff had assigned to Iboport
his interest in the agreements and, therefore, lacked
standing to bring a claim enforcing them.9 Id., 821
(Schaller, J., dissenting). The dissent reasoned that the
plaintiff must have ‘‘transferred something of value to
Iboport, namely, his right to be paid under the personal
guarantees’’; id., 825–26 (Schaller, J., dissenting); as he
claimed to have made a $300,000 capital contribution
to Iboport, and General Statutes § 34-15010 requires
investors to provide something of value to a limited
liability company in order to gain equity in the company.
See id., 825 (Schaller, J., dissenting).
This court subsequently granted the defendant’s peti-
tion for certification to appeal, limited to the following
question: ‘‘Did the Appellate Court properly conclude
that the plaintiff . . . was entitled to bring an action
to enforce the subject guarant[ee] agreement?’’ One
Country, LLC v. Johnson, 307 Conn. 944, 60 A.3d 738
(2013). On appeal, the defendant claims that the plaintiff
does not have standing to enforce the defendant’s back-
stop guarantee agreement with the plaintiff because, by
operation of § 34-150, the plaintiff ‘‘effectively’’ assigned
his interest in the agreement to Iboport when Iboport
represented on its 2009 federal income tax return that
the plaintiff’s $300,000 payment to the bank was a capi-
tal contribution to Iboport. The plaintiff argues that he
has standing and can enforce the agreement because
the defendant executed the guarantee agreement in the
plaintiff’s favor, and the tax treatment of his $300,000
payment to the bank does not affect in any way the
plaintiff’s rights under the agreement. We agree with
the plaintiff.
‘‘It is a basic principle of law that a plaintiff must have
standing for the court to have jurisdiction. Standing is
the legal right to set judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court
unless he has, in an individual or representative capac-
ity, some real interest in the cause of action, or a legal
or equitable right, title or interest in the subject matter
of the controversy. . . . [W]hen standing is put in
issue, the question is whether the person whose stand-
ing is challenged is a proper party to request an adjudi-
cation of the issue and not whether the controversy is
otherwise justiciable, or whether, on the merits, the
[party] has a legally protected interest [that may be
remedied].’’ (Citation omitted; internal quotation marks
omitted.) Dow & Condon, Inc. v. Brookfield Develop-
ment Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003).
‘‘Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substan-
tive rights. Rather, it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of direct injury [that] he has
suffered or is likely to suffer, in an individual or repre-
sentative capacity. Such a personal stake in the out-
come of the controversy . . . provides the requisite
assurance of concrete adverseness and diligent advo-
cacy.’’ (Internal quotation marks omitted.) Broadnax
v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004).
‘‘Standing requires no more than a colorable claim
of injury; a [party] ordinarily establishes . . . standing
by allegations of injury. Similarly, standing exists to
attempt to vindicate arguably protected interests.’’
(Internal quotation marks omitted.) May v. Coffey, 291
Conn. 106, 112, 967 A.2d 495 (2009). ‘‘[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. . . . Because a determination regarding the
trial court’s subject matter jurisdiction raises a question
of law, our review is plenary.’’ (Internal quotation marks
omitted.) Id., 113. ‘‘[I]n determining whether a court has
subject matter jurisdiction, every presumption favoring
jurisdiction should be indulged.’’ (Internal quotation
marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn.
206, 214, 982 A.2d 1053 (2009).
Applying the foregoing principles, we conclude that
the plaintiff has alleged facts sufficient to establish his
standing to bring this action. The plaintiff alleged, in
essence, that the defendant executed the backstop guar-
antee agreement in the plaintiff’s favor, that he was
required to pay $300,000 to the bank on behalf of One
Country, and that, in turn, the defendant became
indebted to him for that amount under the terms of
the backstop guarantee agreement. These allegations,
which the defendant does not appear to contest, consti-
tute a colorable claim of injury.
Insofar as the defendant claims that the plaintiff lacks
standing because he assigned his rights away to enforce
the agreement, the defendant does not dispute that his
obligation runs to the plaintiff personally rather than
to some other entity. The defendant also concedes that
there never was a writing memorializing the plaintiff’s
alleged assignment to Iboport of his rights in the
agreement. In fact, the sole piece of evidence on which
the trial court relied, and on which the defendant now
relies, in determining that the plaintiff assigned his
rights away is the tax treatment of the plaintiff’s pay-
ment of One Country’s debt to the bank. This evidence
alone, however, is insufficient to cast doubt on the
plaintiff’s standing.
The law on assignment is well established. ‘‘An
assignment of a right is a manifestation of the assignor’s
intention to transfer it by virtue of which the assignor’s
right to performance by the obligor is extinguished in
whole or in part and the assignee acquires a right to
such performance.’’ 3 Restatement (Second), Contracts
§ 317 (1), pp. 14–15 (1981). ‘‘It is essential to an assign-
ment of a right that the obligee manifest an intention
to transfer the right to another person without further
action or manifestation of intention by the obligee. The
manifestation may be made to the other or to a third
person on his behalf and, except as provided by statute
or by contract, may be made either orally or by a writ-
ing.’’ Id., § 324, p. 37; see also Dysart Corp. v. Seaboard
Surety Co., 240 Conn. 10, 17, 688 A.2d 306 (1997)
(employees did not assign to bar owner their rights
under payment bonds by cashing checks at bar because
employees did not objectively manifest intent to do
so); Sunset Gold Realty, LLC v. Premier Building &
Development, Inc., 133 Conn. App. 445, 452–53, 36 A.3d
243 (‘‘[n]o words of art are required to constitute an
assignment; any words that fairly indicate an intention
to make the assignee owner of a claim are sufficient’’
[internal quotation marks omitted]), cert. denied, 304
Conn. 912, 40 A.3d 319 (2012). ‘‘Generally, to constitute
an assignment there must be a purpose to assign or
transfer the whole or a part of some particular thing,
debt, or chose in action, and the subject matter of the
assignment must be described with such particularity
as to render it capable of identification.’’ (Internal quo-
tation marks omitted.) Schoonmaker v. Lawrence Bru-
noli, Inc., 265 Conn. 211, 227, 828 A.2d 64 (2003). Thus,
when the facts are undisputed and the manifestation
of intent must be gleaned by examining the words and
actions of the alleged assignor, the issue of whether
there is a valid assignment is a question of law over
which we exercise plenary review. See Dysart Corp.
v. Seaboard Surety Co., supra, 11, 17. See generally
Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d
342 (1995) (‘‘[w]hen . . . the trial court draws conclu-
sions of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record’’
[internal quotation marks omitted]).
We conclude that the plaintiff did not assign to Ibo-
port his interest in the defendant’s backstop guarantee
agreement, and, therefore, the plaintiff has standing to
enforce the agreement. The evidence demonstrates that
the plaintiff never made a capital contribution to Ibo-
port because he never transferred to Iboport the
$300,000 for the settlement of One Country’s debt but,
rather, paid the bank directly from his personal funds.
In addition, Iboport’s 2009 federal income tax return
provides merely that the plaintiff contributed $300,000
to Iboport, without specifying in what form, let alone
identifying the backstop guarantee agreement as the
value contributed. Iboport’s federal income tax return
contained no express language indicating that the plain-
tiff intended to transfer to Iboport his interest in the
guarantee agreement, and there is no evidence that the
plaintiff ever treated the tax return as having such an
effect. Although Iboport’s declaration of receiving a
capital contribution on its income tax return suggests
that the plaintiff intended to provide Iboport with some-
thing of value, this general representation lacks the
specificity and express language or conduct required
to objectively establish that the plaintiff intended to
assign to Iboport his rights in the guarantee agreement.11
Accordingly, the fact that the plaintiff claimed a tax
deduction for a loss does not preclude him from subse-
quently seeking to recover from a party indebted to
him for that loss. See, e.g., Bragman v. Commonwealth
Land Title Ins. Co., 421 F. Supp. 99, 103 n.9 (E.D. Pa.
1976) (plaintiff’s tax treatment of his payment of tax
lien was irrelevant to defendant’s liability for tax lien
under title insurance policy), aff’d, 561 F.2d 493 (3d Cir.
1977); Wichita Federal Savings & Loan Assn. v. Black,
245 Kan. 523, 536–39, 781 P.2d 707 (1989) (rejecting
defendant’s argument that plaintiff savings and loan
association was estopped from recovering more than
$17 million that he allegedly lost through negligent
financial futures trading because association previously
claimed deduction for that loss on income tax return);
H.J. Baker & Bro., Inc. v. Orgonics, Inc., 554 A.2d 196,
203 (R.I. 1989) (plaintiff’s tax deduction for money owed
to it by defendant was irrelevant to defendant’s abuse
of process counterclaim because deduction did not bar
plaintiff from seeking to recover debt); see also Ener-
getics, Inc. v. Allied Bank of Texas, 784 F.2d 1300, 1304
(5th Cir. 1986) (rejecting defendant bank’s argument
that plaintiff did not own funds offset by defendant
because plaintiff previously claimed income tax deduc-
tion for those funds); cf. Del-Chapel Associates v. Con-
ectiv, Delaware Court of Chancery, Docket No. 19498-
VCL (Del. Ch. May 5, 2008) (whether plaintiff paid taxes
on land on which defendant allegedly trespassed was
irrelevant to validity of easements challenged by defen-
dant). We therefore conclude that, because the only
evidence of an assignment is the tax treatment of the
plaintiff’s $300,000 payment to the bank, there is no
basis on which to conclude that an assignment
occurred.12
The defendant’s reliance on § 34-150 in arguing that
the plaintiff assigned his rights to Iboport is also unavail-
ing. Section 34-150 provides that ‘‘[a]n interest in a lim-
ited liability company may be issued in exchange for
property, services rendered or a promissory note or
other obligation to contribute cash or to perform ser-
vices.’’ The defendant contends that, when the plaintiff
declared his $300,000 payment to the bank as a capital
contribution, the plaintiff’s interest in the backstop
guarantee agreement was transferred to Iboport by
operation of law under § 34-150. The defendant’s reli-
ance on this statutory provision does not further his
position. The statute specifies the effect of a transfer
of property to a limited liability corporation. The issue
before us is whether the tax treatment of a payment
on a debt standing alone is sufficient to demonstrate
an actual transfer, not what the effect of any transfer
might be.
We also reject the defendant’s argument that General
Statutes § 34-167 is relevant to our resolution of this
case. Section 34-167 (a) provides in relevant part that
‘‘[p]roperty transferred to or otherwise acquired by a
limited liability company is property of the limited liabil-
ity company and not of the members individually. . . .’’
Whether the plaintiff retained an interest in the back-
stop guarantee agreement after allegedly assigning his
rights thereunder to Iboport has no bearing on whether
the plaintiff made an assignment in the first place.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The named plaintiff, One Country, LLC, withdrew its claims before trial
and is no longer a party to the action. We refer to Scott Porter as the plaintiff
throughout this opinion.
2
This action originally was brought against Johnson, Peter Pratley, Jenni-
fer Porter, and The Pratley Company, LLC. The plaintiff withdrew his claims
against Jennifer Porter, with whom he settled out of court, and The Pratley
Company, LLC, from whom the plaintiff sought damages under the separate
theory of breach of contract for failing to complete the construction project.
Pratley did not appeal from the judgment of the Appellate Court, making
Johnson the sole appellant. We refer to Johnson as the defendant throughout
this opinion.
3
Hereinafter, we refer to the plaintiff and Jennifer Porter collectively as
the Porters.
4
Connecticut Community Bank, N.A., was doing business as The Green-
wich Bank and Trust Company. One Country, LLC v. Johnson, supra, 137
Conn. App. 813.
5
The backstop guarantee agreements specifically identify the plaintiff as
guaranteeing One Country’s acquisition and construction loans in consider-
ation of promises by Jennifer Porter, the defendant, and Pratley to pay One
Country’s debt to the plaintiff. Furthermore, the agreements provide that
the signators guarantee to pay the plaintiff in full ‘‘any and all present
and future obligations of [One Country] to [the plaintiff] arising from [One
Country’s loans arrangements with the bank] . . . .’’ Each agreement also
expressly provides that it is a continuing guarantee and is enforceable until
One Country’s debts to the plaintiff have been paid in full. Under the terms
of the agreements, Jennifer Porter, the defendant, and Pratley expressly
waived ‘‘to the fullest extent permitted by law’’ any defenses that may limit
their liability to the plaintiff under the agreements. Finally, the agreements
provide that the signators’ obligations to the plaintiff will ‘‘not be discharged
or otherwise affected by any settlement . . . or . . . payment’’ of One
Country’s debt to the plaintiff.
6
Glaser testified at trial that, alternatively, he could have treated the
plaintiff’s $300,000 payment to the bank as a liability for One Country and
as a note payable to the plaintiff. Glaser explained that he instead treated
the payment as a loss, and then subsequently a capital contribution, because
he did not believe that the plaintiff, a member of One Country only through
his interest in Iboport, had the authority to incur a liability on behalf of
One Country.
7
The precise amount that the plaintiff deducted on his personal income
tax return is unclear, as his individual tax returns were never presented at
trial. From Glaser’s testimony at trial, it appears that the plaintiff claimed
the entire $300,000 as a deduction with the intention of adjusting that benefit
if Jennifer Porter, the defendant, or Pratley paid him according to the terms
of the backstop guarantee agreements.
Glaser testified at trial that he had good reason to believe that the plaintiff
was entitled to claim a deduction on his personal income tax return for this
transaction. The trial court characterized Glaser’s testimony in this regard:
‘‘[U]nder the tax code, losses incurred on investments in limited liability
companies such as [One Country] are typically treated as capital losses with
a limited right to deduct such losses on the investor’s personal tax return.
However, because of Pratley’s position as a person engaged in the construc-
tion industry as a member of [One Country], the losses incurred by members
of [One Country] were required to be treated as ordinary losses [that] can
be deducted, without limit, against ordinary income.’’
8
Specifically, Glaser stated in his memorandum: ‘‘Please note that if any
of the other [m]embers of [One Country] that are sub-guarantors on the
loan reimburse Iboport . . . for [his or her] respective share of the loan
deficiency the amount will have to be reported by Iboport . . . as income
or the payment made by the sub-guarantor will have to be reduced by the
tax benefit Iboport . . . received in 2008.’’ Glaser’s testimony at trial sug-
gests that, in this portion of the memorandum, he was, in fact, referring to
the plaintiff rather than Iboport. This would make sense in light of the fact
that Glaser incorrectly suggests in the memorandum that the backstop
guarantee agreements were executed in favor of Iboport instead of the
plaintiff in his individual capacity. We therefore take Glaser’s statements
to mean that he believed that both Iboport and the plaintiff would be required
to adjust the tax benefits they received in 2008 if they were to be compensated
for the $300,000 loss they claimed.
9
The Appellate Court majority did not expressly address whether the
plaintiff had standing to bring this action.
10
General Statutes § 34-150 provides: ‘‘An interest in a limited liability
company may be issued in exchange for property, services rendered or a
promissory note or other obligation to contribute cash or to perform
services.’’
11
Even if the plaintiff’s income tax return alone constituted an objective
manifestation of an intention to assign to Iboport certain rights in the guaran-
tee agreement, the defendant did not establish that it was a total assignment.
Indeed, Glaser, the plaintiff’s accountant, suggested in his memorandum,
which was introduced into evidence at trial, as well as in his trial testimony
that, if the plaintiff recovered under the backstop guarantee agreement, he
would have been required to adjust the tax benefit that he received when
he claimed a loss for the $300,000 settlement payment. This would suggest
that the plaintiff retained control over his rights to collect on the debt. See,
e.g., Bragman v. Commonwealth Land Title Ins. Co., 421 F. Supp. 99, 103
n.9 (E.D. Pa. 1976), aff’d, 561 F.2d 493 (3d Cir. 1977).
12
The defendant also claims that allowing the plaintiff to enforce the
backstop guarantee agreement would create an undeserved windfall for the
plaintiff, as he would recoup his $300,000 payment and still enjoy the tax
benefit he claimed when he reported that payment as a capital contribution
to Iboport. This argument, however, is unavailing because it is unrelated to
the issue of standing.