Wiederman v. Halpert

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MALKIE WIEDERMAN v. ISAAC HALPERT ET AL.
(AC 39274)
DiPentima, C. J., and Sheldon and Mihalakos, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, H and M,
for breach of fiduciary duty, fraud, conversion, and violations of the
Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.),
arising out of a real estate investment agreement. The agreement created
several limited liability companies that purchased properties for develop-
ment and, although the plaintiff was supposed to receive a percent
of the profits, she alleged that the defendants commingled accounts,
misappropriated and withheld funds, converted the funds for their own
personal use, and secured the funds by use of fraudulent documents.
The court entered a default as to H and M when, on the date of a
scheduled trial management conference, only the plaintiff and her coun-
sel appeared. Thereafter, following a hearing in damages at which H
failed to appear despite having been subpoenaed to testify, the trial
court rendered judgment in favor of the plaintiff and awarded her com-
pensatory damages, punitive damages in the amount of $175,000, and
attorney’s fees and costs. After the trial court denied the motion to open
the judgment filed by H and M, they appealed to this court raising claims
of error that were not raised in their motion to open. They claimed that
the judgment should be opened because their claims of error implicated
the trial court’s subject matter jurisdiction or because the court’s actions
constituted plain error that resulted in manifest injustice. Held:
1. H and M could not prevail on their claim that the trial court lacked subject
matter jurisdiction, which was based on their claim that the plaintiff
did not have standing to assert her claims because the injuries that she
allegedly sustained were derivative of injuries to the limited liability
companies; the plaintiff established a colorable claim of direct injury
and, thus, that she was aggrieved by the defendants’ conduct, as the
complaint did not allege that she had standing solely by reason of being
a member of the limited liability company but, rather, alleged that H
conducted the day-to-day management of the companies in a manner
that damaged her personally and directly in that she never received
any portion of the profits or distributions from the properties, and her
allegations that H and M had misappropriated, wasted, and mismanaged
the funds that were due to her, and that they forged her signature on
certain financial documents, claimed injuries that were not remote,
indirect or derivative, but were peculiar to her.
2. H and M’s claim the trial court committed plain error by failing to make
explicit determinations as to the legal sufficiency of the plaintiff’s claims,
and by assuming that the entry of default against them had conclusively
established their liability was unavailing; the trial court specifically found
that the plaintiff proved damages on her counts of breach of fiduciary
duty, conversion, fraud and bad faith, but that she failed to meet her
burden of establishing a violation of CUTPA, which demonstrated that
the court considered the sufficiency of the plaintiff’s pleading and proof
in determining whether to award her damages, and although the trial
court did not explicitly address the legal sufficiency of each of the
plaintiff’s claims, it necessarily found them sufficient when it awarded
damages on those claims.
3. The trial court did not commit plain error in finding M liable to the plaintiff
for fraud, the plaintiff having properly set forth a claim of fraud against
both H and M in her complaint; the plaintiff alleged that she was induced
by representatives of H and M to invest in the companies, that she relied
on the representations of both H and M as to the organization, structure,
and day-to-day management of the investment endeavor, and that both
H and M deposited rent checks, to which she was entitled to 50 percent,
into their personal bank accounts, used the companies’ accounts for
personal matters, were involved in forging the plaintiff’s name on finan-
cial documents, and refused to account for the funds to which she
claimed she was entitled.
4. The trial court improperly found M liable to the plaintiff for conversion, as
the plaintiff’s complaint did not sufficiently allege a claim of conversion
against M; the conversion count of the complaint clearly and unequivo-
cally applied only to H, both by its title and by the allegations set forth
therein, which described only H’s conduct.
5. This court could not conclude that the trial court committed a patent,
readily discernible or obvious error in its award of compensatory dam-
ages as to the plaintiff’s claims for breach of fiduciary duty, fraud,
conversion, and bad faith, as the plaintiff’s testimony and exhibits pro-
vided abundant support for the award of damages, and H and M did
not ask the court to explicitly identify the damages awarded on each
of the plaintiff’s claims.
6. The trial court erred in awarding the plaintiff punitive damages in addition
to attorney’s fees and costs; the plaintiff having failed to prove the count
alleging a violation of CUTPA, the award of punitive damages could
only have been made with respect to her claim of fraud, and because
an award of punitive damages on a claim of common-law fraud may
include only attorney’s fees and costs, both of which the court awarded
to the plaintiff separate and apart from its punitive damages award, the
court committed plain error in awarding her an additional $175,000 in
punitive damages.
Argued October 11—officially released December 19, 2017
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 Waterbury, where
the action was withdrawn as against the defendant
Judah Liberman, and the defendant 58 N. Walnut, LLC,
et al., were defaulted for failure to appear; thereafter,
the named defendant et al. filed a counterclaim; subse-
quently, the named defendant et al. were defaulted for
failure to appear at a trial management conference;
thereafter, following a hearing in damages, the court,
Brazzel-Massaro, J., rendered judgment for the plain-
tiff; subsequently, the court denied the motion to open
filed by the named defendant et al., and the named
defendant et al. appealed to this court. Reversed in
part; vacated in part; judgment directed.
Kerry M. Wisser, with whom, on the brief, was Sarah
Black Lingenheld, for the appellants (named defendant
et al.).
Taryn D. Martin, with whom, on the brief, was Robert
A. Ziegler, for the appellee (plaintiff).
Opinion
SHELDON, J. In this action arising from a real estate
investment agreement, the defendants Isaac Halpert
and Marsha Halpert1 appeal from the judgment of the
trial court denying their motion to open the judgment
rendered against them following a hearing in damages
held after they had been defaulted for failing to appear
at a trial management conference. The trial court held
a hearing in damages and awarded the plaintiff, Malkie
Wiederman, $600,892.58 in compensatory and punitive
damages, attorney’s fees and costs, on her claims of
breach of fiduciary duty, fraud, conversion and bad
faith. The defendants claim on appeal that (1) the trial
court lacked subject matter jurisdiction to hear the
plaintiff’s claims because the plaintiff did not have
standing to assert them; (2) the trial court failed to
make a determination as to the legal sufficiency of the
plaintiff’s claims of breach of fiduciary duty, fraud, con-
version and bad faith; (3) there was no causal connec-
tion between the defendants’ allegedly wrongful
conduct and the losses for which the court awarded
the plaintiff compensatory damages; (4) the trial court
erred in finding Marsha Halpert liable for fraud and
conversion absent sufficient allegations of those claims
against her; and (5) the court erred in awarding the
plaintiff punitive damages in addition to attorney’s fees
on her claim of fraud. The defendants concede that
they failed to raise any of the foregoing claims in their
motion to open the judgment, and thus that the law
ordinarily precludes this court from considering those
claims on appeal. The defendants nevertheless seek
review of their claim that court erred in denying their
motion to open on the grounds that the plaintiff lacked
standing to assert her claims against the defendants
and thus that the trial court lacked subject matter juris-
diction, and that the judgment contained plain errors
that resulted in manifest injustice. We agree that the
plaintiff failed to properly plead a claim for conversion
against Marsha Halpert, and thus that the court’s judg-
ment finding her liable for conversion must be reversed.
We also agree with the defendants’ claim that the court
committed plain error in awarding the plaintiff punitive
damages in addition to attorney’s fees on her claim of
fraud, and thus we conclude that the award of punitive
damages must be vacated.2
The trial court set forth the following factual and
procedural history in its February 5, 2016 memorandum
of decision. ‘‘The plaintiff . . . filed this action on
November 13, 2008 . . . and filed an amended com-
plaint dated June 14, 2011, which is the operative com-
plaint. . . . The amended complaint contains eleven
separate counts. The case has been in the court for a
number of years and has an extensive history. The court
entered a scheduling order for trial of this matter for
March 3, 2015, which was continued until March 17,
2015 and thereafter until October 20, 2015. Counsel for
the defendants requested the latest continuance to a
trial date of January 28, 2016, with the trial management
conference scheduled for January 14, 2016. Counsel for
the . . . defendants failed to appear on January 14,
2016 for the trial management conference. The court,
as well as [the] plaintiff’s counsel, attempted to contact
[counsel for the defendants,] Attorney [David] Rosen-
berg, for the conference. The notice of the conference
was sent to all parties after the court granted the defen-
dants’ request for a continuance on October 13, 2015.
The notice required that the parties submit a joint trial
management report and appear at 9:30 a.m. On January
14, 2016, only the plaintiff and the plaintiff’s counsel
appeared. Counsel [for the plaintiff] represented that
[Attorney Rosenberg] did not respond to requests to
supplement the proposed joint trial management report
provided to him. The court requested that counsel [for
the plaintiff] contact Attorney Rosenberg and wait for
a reasonable time period for the defendants to appear.
[Attorney Rosenberg] did not appear and at 11:07 a.m.,
the court entered a default for failure to attend the
conference. Notice was sent to counsel for the defen-
dants that the court would conduct a hearing [in] dam-
ages on the scheduled January 28, 2016 trial date.
Counsel for the plaintiff subpoenaed . . . Isaac Halp-
ert, to appear on January 28, 2016. [Isaac] Halpert did
not appear for the trial management conference or
appear in response to the subpoena on the trial date.
‘‘The court . . . proceeded on the hearing [in] dam-
ages on January 28, 2016. . . . Neither [Attorney
Rosenberg] nor the subpoenaed defendant [Isaac Halp-
ert] appeared for the hearing [in] damages. The court
heard testimony from [the plaintiff] and received exhib-
its in support of her claim for damages.’’ (Footnote
omitted.)
After noting that, ‘‘[u]pon default, the plaintiff ordi-
narily becomes entitled to recover damages,’’ the court
reasoned: ‘‘The defendant failed to appear for the trial
management conference on January 14, 2016, or at the
trial which was scheduled as a hearing [in] damages as
a result of the default entered on January 14, 2016. The
court entered a default as to all parties but for purposes
of this decision, the court is addressing only the two
individuals, Isaac Halpert and Marsha Halpert. At the
hearing, the plaintiff . . . proceeded as to count one,
count four, count five, count six, and count ten [alleging,
respectively] breach of fiduciary duty . . . fraud . . .
conversion . . . bad faith and . . . [violation of the
Connecticut Unfair Practices Act (CUTPA), General
Statutes § 42-110a et seq.].3
‘‘The plaintiff offered testimony and exhibits at the
hearing. She testified that she met Isaac Halpert and
he presented himself as an experienced real estate
developer. He took her to several properties in Water-
bury which he had redeveloped and thereafter she
invested in the several properties with him. This action
arises out of the agreement between the plaintiff and
the defendants, which created several limited liability
companies [LLCs] for a number of development proper-
ties and the actions of the defendants which are clearly
set forth in the complaint and further supported with
the exhibits that were admitted during the hearing
before this court. The plaintiff introduced 51 separate
exhibits during her testimony.
‘‘The plaintiff became a 50 [percent] member in the
following limited liability companies: (1) 58 North Wal-
nut, LLC; (2) 94 Cherry Street, LLC; (3) 100 Burton
Street, LLC; (4) 44 Linden Street, LLC; (5) 49 Webb
Street, LLC; (6) 15 Cossett Street, LLC; and (7) 31 Webb
Street, LLC. Each of the [LLCs] purchased property in
the city of Waterbury for development. In addition to
these properties, the plaintiff was also involved in the
purchase of property at 35 Adams Street in the city
of Waterbury. This property was resold to the city of
Waterbury and the sale proceeds of $65,262.19 were to
be divided with 50 [percent] to the plaintiff for her
investment. As to the remaining properties for each of
the LLCs the plaintiff invested sums of money and she
was to receive 50 [percent] of the investment and prof-
its. The defendants, Isaac Halpert, Marsha Halpert, and
Judah Liberman each had a percentage interest in the
properties which consumed the remaining 50 [percent].
The defendant Isaac Halpert agreed to conduct the day-
to-day management of the properties.
‘‘At the hearing, the plaintiff provided the court with
a number of exhibits, including e-mails that questioned
expenses, payments, payouts, location of checks, funds,
and actions of Isaac Halpert which follow the allega-
tions in the complaint regarding his commingling of
the accounts, misappropriation of funds, withholding of
funds, failing to account for or deposit funds collected,
converting the funds to his and his wife’s own personal
use, and the securing of funds by use of fraudulent doc-
uments.
‘‘The exhibits provide abundant support for damages
as to counts one, four, five and six of the complaint.
The plaintiff has made a [CUTPA] claim in count ten
for damages pursuant to [General Statutes] § 42-110b.
The exhibits and testimony of the plaintiff do not indi-
cate that she has satisfied the requirements pursuant
to [General Statutes] § 42-110g (c) and thus the court
does not award a judgment for the plaintiff on this
count only. As to the remaining counts, the court awards
judgment and damages after review of the exhibits
admitted in support of the plaintiff’s testimony. In par-
ticular, the plaintiff has supported her testimony with
an exhibit prepared by her that identifies the funds
taken by [Isaac] Halpert and the investment summary
for purposes of the claims of breach of fiduciary duty,
fraud, conversion and bad faith. As to the claim for
compensatory damages for these counts, the evidence
supports an award of compensatory damages in the
amount $271,250 and $95,797.79 for the funds proven
by the [plaintiff] as alleged in the conversion count.
The court awards punitive damages as claimed in [the]
complaint in the amount of $175,000. The court awards
attorney fees in the amount of $57,337.50 on the counts
for fraud and conversion, and costs in the amount of
$1,507.29. . . .
‘‘Based upon the above, judgment is entered in favor
of the plaintiff in the amount of $367,047.79 compensa-
tory damages and punitive damages in the amount of
$175,000 as to counts four and five. The court awards
attorney fees in the amount of $57,337.50 and costs of
$1,507.29.’’ (Footnotes added and omitted.)
Thereafter, on May 10, 2016, the defendants filed a
motion to open the judgment, to which the plaintiff
filed an objection. The court held a hearing on the
defendants’ motion to open the judgment and the plain-
tiff’s objection thereto, after which the court issued a
written order, in which it denied the defendants’ motion
as follows: ‘‘The plaintiff has objected and the court
noted specifically that in addition to the attempts by
the plaintiff to contact [Attorney Rosenberg] when he
failed to appear for a trial management conference and
thereafter for the trial date which was requested by
him, the defendant[s] had received notices by the court,
the defendant Isaac Halpert had been served in hand
with a subpoena to testify on January 28, 2016, when
the matter was scheduled for a hearing and failed to
come, and months have passed before the defendant[s]
[sought] to open although notices were sent to [Attor-
ney Rosenberg’s] old office address as well as his old
and new e-mail addresses and he failed to respond.
Counsel for the plaintiff as well as this court made
many attempts to keep the defendant[s] aware of the
status of the action but the defendant[s] remained unre-
sponsive.’’
This appeal followed. The defendants now raise sev-
eral claims of error as to the court’s judgment, as set
forth herein, none of which were raised in their motion
to open the judgment. ‘‘The denial of a motion to open
is an appealable final judgment. . . . Although a
motion to open can be filed within four months of a
judgment . . . the filing of such a motion does not
extend the appeal period for challenging the merits of
the underlying judgment unless filed within the [twenty
day period provided by Practice Book § 63-1]. . . .
When a motion to open is filed more than twenty days
after the judgment, the appeal from the denial of that
motion can test only whether the trial court abused its
discretion in failing to open the judgment and not the
propriety of the merits of the underlying judgment. . . .
This is so because otherwise the same issues that could
have been resolved if timely raised would nevertheless
be resolved, which would, in effect, extend the time to
appeal. . . .
‘‘The principles that govern motions to open or set
aside a civil judgment are well established. Within four
months of the date of the original judgment, Practice
Book [§ 17-4] vests discretion in the trial court to deter-
mine whether there is a good and compelling reason
for its modification or vacation. . . .
‘‘Because opening a judgment is a matter of discre-
tion, the trial court [is] not required to open the judg-
ment to consider a claim not previously raised. The
exercise of equitable authority is vested in the discre-
tion of the trial court and is subject only to limited
review on appeal. . . . We do not undertake a plenary
review of the merits of a decision of the trial court to
grant or to deny a motion to open a judgment. The only
issue on appeal is whether the trial court has acted
unreasonably and in clear abuse of its discretion. . . .
In determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion in favor of its action.’’ (Emphasis omitted; internal
quotation marks omitted.) Sabrina C. v. Fortin, 176
Conn. App. 730, 746–47, 170 A.3d 100 (2017).
In light of the foregoing principles, the defendants
acknowledge that ‘‘[t]he merits of the underlying judg-
ment are ordinarily not reviewable when a party appeals
only the denial of a motion to open judgment.’’ The
defendants do not argue that the trial court abused its
discretion in denying their motion to open the judgment.
The defendants argue, rather, that the judgment should
be opened because their claims of error either implicate
the trial court’s subject matter jurisdiction or the court’s
actions constituted plain error that resulted in manifest
injustice. We address the defendants’ claims in turn.
I
We first address the defendants’ claim that the trial
court did not have jurisdiction to hear the plaintiff’s
claims because the plaintiff lacked standing to assert
them. The defendants argue that the injuries allegedly
sustained by the plaintiff were derivative of injuries to
the LLCs, and thus that the plaintiff did not have stand-
ing to assert those claims. We disagree.
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to determine the
cause. . . . [A] claim that a court lacks subject matter
jurisdiction may be raised at any time during the pro-
ceedings . . . including on appeal . . . . Because the
defendants’ claim implicates the trial court’s subject
matter jurisdiction, we conclude that it is reviewable
even though the defendants have raised it for the first
time on appeal.’’ (Citations omitted; internal quotation
marks omitted.) Perez-Dickson v. Bridgeport, 304
Conn. 483, 506, 43 A.3d 69 (2012). ‘‘A determination
regarding a trial court’s subject matter jurisdiction is a
question of law.’’ (Internal quotation marks omitted.)
Fairchild Heights Residents Assn., Inc. v. Fairchild
Heights, Inc., 310 Conn. 797, 821, 82 A.3d 602 (2014).
‘‘[S]tanding 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. . . . Never-
theless, [s]tanding is not a technical rule intended to
keep aggrieved parties out of court; nor is it a test
of substantive 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.’’ (Internal quotation
marks omitted.) Id., 820–21. ‘‘These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of direct injury he has suffered
or is likely to suffer, in an individual or representative
capacity. Such a personal stake in the outcome of the
controversy . . . provides the requisite assurance of
concrete adverseness and diligent advocacy.’’ (Internal
quotation marks omitted.) Pond View, LLC v. Plan-
ning & Zoning Commission, 288 Conn. 143, 155, 953
A.2d 1 (2008).
‘‘Standing requires no more than a colorable claim
of injury; a [party] ordinarily establishes . . . standing
by allegations of injury [that he or she has suffered or
is likely to suffer]. Similarly, standing exists to attempt
to vindicate arguably protected interests. . . . Stand-
ing is established by showing that the party claiming it
is authorized by statute to bring suit or is classically
aggrieved. . . . The fundamental test for determining
[classical] aggrievement encompasses a well-settled
twofold determination: first, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the subject matter of
the challenged action], as distinguished from a general
interest, such as is the concern of all members of the
community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Wilcox v. Webster
Ins., Inc., 294 Conn. 206, 214–15, 982 A.2d 1053 (2009).
‘‘For purposes of standing, the plaintiffs need only
allege a colorable claim of injury as standing exists
to attempt to vindicate arguably protected interests.’’
(Emphasis added; internal quotation marks omitted.)
Id., 216–17. ‘‘It is well established that, in determining
whether a court has subject matter jurisdiction, every
presumption favoring jurisdiction should be indulged.’’
(Internal quotation marks omitted.) New England Pipe
Corp. v. Northeast Corridor Foundation, 271 Conn.
329, 335, 857 A.2d 348 (2004).
‘‘[A]s a general rule, a plaintiff lacks standing unless
the harm alleged is direct rather than derivative or indi-
rect.’’ Connecticut State Medical Society v. Oxford
Health Plans (CT), Inc., 272 Conn. 469, 481, 863 A.2d
645 (2005). ‘‘[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. Where,
for example, the harms asserted to have been suffered
directly by a plaintiff are in reality derivative of injuries
to a third party, the injuries are not direct but are indi-
rect, and the plaintiff has no standing to assert them.’’
Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347–48,
780 A.2d 98 (2001).
‘‘A distinction must be made between the right of a
shareholder to bring suit in an individual capacity as
the sole party injured, and his right to sue derivatively
on behalf of the corporation alleged to be injured. . . .
Generally, individual stockholders cannot sue the offi-
cers at law for damages on the theory that they are
entitled to damages because mismanagement has ren-
dered their stock of less value, since the injury is gener-
ally not to the shareholder individually, but to the
corporation—to the shareholders collectively. . . . In
this regard, it is axiomatic that a claim of injury, the
basis of which is a wrong to the corporation, must be
brought in a derivative suit, with the plaintiff proceeding
‘secondarily,’ deriving his rights from the corporation
which is alleged to have been wronged. . . . It is, how-
ever, well settled that if the injury is one to the plaintiff
as a stockholder, and to him individually, and not to
the corporation, as where an alleged fraud perpetrated
by the corporation has affected the plaintiff directly,
the cause of action is personal and individual. . . . In
such a case, the plaintiff-shareholder sustains a loss
separate and distinct from that of the corporation, or
from that of other shareholders, and thus has the right
to seek redress in a personal capacity for a wrong done
to him individually.’’4 (Citations omitted; footnote omit-
ted.) Yanow v. Teal Industries, Inc., 178 Conn. 262,
281–82, 422 A.2d 311 (1979). ‘‘When a party meets the
requirements of the test for determining classical
aggrievement, it is irrelevant for purposes of standing
whether such party also is a member of a limited liability
company that may or may not have related claims of
its own.’’ Wilcox v. Webster Ins., Inc., supra, 294
Conn. 220–21.
The defendants argue that ‘‘the allegations in the
operative complaint and [the] plaintiff’s testimony at
the hearing in damages make clear that [the] plaintiff
based her claims on harm to the LLCs.’’ We disagree.
The plaintiff did not allege that she had standing solely
by reason of being a member of the LLCs. The plaintiff’s
complaint contained allegations of harm to her, sepa-
rate and distinct from the harm potentially sustained
by the LLCs. Here, the plaintiff alleged that Isaac Halp-
ert, who allegedly conducted the day-to-day manage-
ment of the LLCs, did so in a manner that damaged her
directly. The plaintiff claimed that she never received
any portion of the profits or distributions from the prop-
erties and that the defendants, instead of fulfilling their
contractual and fiduciary obligations to so distribute
those funds to her, misappropriated, wasted and mis-
managed them. She alleged that her investment was
‘‘misappropriated, used to maintain properties unre-
lated to this investment endeavor, and/or wasted.’’ The
plaintiff further claimed that the defendants failed to
provide to her an accounting of their use of funds to
which she allegedly was entitled and forged her signa-
ture on certain financial documents. The injuries
claimed by the plaintiff were not remote, indirect or
derivative, but were peculiar to her. We conclude that
the plaintiff established a colorable claim of injury, and
thus that she was aggrieved by the defendants’ alleged
conduct. Accordingly, we reject the defendants’ claim
that the trial court lacked subject matter jurisdiction
to hear the plaintiff’s claims.
II
We next address with the defendants’ claim that their
motion to open should have been granted because the
trial court’s judgment is rife with errors, and those
errors are so plain that they resulted in manifest
injustice.
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. Although a com-
plete record and an obvious error are prerequisites for
plain error review, they are not, of themselves, suffi-
cient for its application. . . . [T]he plain error doctrine
is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [Previously], we described the two-
pronged nature of the plain error doctrine: [An appel-
lant] cannot prevail under [the plain error doctrine]
. . . unless he demonstrates that the claimed error is
both so clear and so harmful that a failure to reverse
the judgment would result in manifest injustice. . . .
‘‘It is axiomatic that, [t]he plain error doctrine . . .
is not . . . a rule of reviewability. It is a rule of revers-
ibility. That is, it is a doctrine that this court invokes
in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in
the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy. . . . Put
another way, plain error review is reserved for only
the most egregious errors. When an error of such a
magnitude exists, it necessitates reversal.’’ (Citations
omitted; emphasis in original; footnote omitted; internal
quotation marks omitted.) State v. McClain, 324 Conn.
802, 812–14, 155 A.3d 209 (2017). With these principles
in mind, we address the defendants’ claims of plain
error in turn.
A
The defendants’ first claim of plain error is that the
trial court failed to make explicit determinations as
to the legal sufficiency of the plaintiff’s claims. The
defendants claim that in stating, ‘‘[u]pon default, the
plaintiff ordinarily becomes entitled to recover dam-
ages,’’ the trial court ‘‘glossed over the qualifier of ‘ordi-
narily’ ’’ and, ‘‘incorrectly assumed that the entry of
default had conclusively established liability as to such
claims.’’ We disagree.
We first note that the trial court’s statement of the
law was correct and there was nothing in the record
that indicates that the court ‘‘glossed over’’ any aspect
of that law. In its memorandum of decision, the court
specifically found that the plaintiff proved damages on
her counts of breach of fiduciary duty, conversion, fraud
and bad faith, but that she failed to meet her burden
of establishing a CUTPA violation. It is evident from
these statements that the court considered the suffi-
ciency of the plaintiff’s pleading and proof in determin-
ing whether to award damages to the plaintiff.
Moreover, it is well established that ‘‘[u]nless the
contrary appears in the record, we will presume that
the trial court acted properly and considered applicable
legal principles. . . . Stated slightly differently, this
court does not presume error by the trial court where
the party challenging the court’s ruling failed to satisfy
its burden of demonstrating that it was factually or
legally untenable.’’ (Citations omitted; internal quota-
tion marks omitted.) Luongo Construction & Develop-
ment, LLC v. MacFarlane, 176 Conn. App. 272, 285–86,
170 A.3d 157 (2017). Although the court did not explic-
itly address the legal sufficiency of the plaintiff’s claims,
it necessarily found them sufficient when it awarded
damages on those claims. We cannot conclude that the
court committed plain error in this regard.
B
The defendants next claim that the court committed
plain error in finding Marsha Halpert liable to the plain-
tiff for fraud and conversion where the plaintiff’s allega-
tions against her failed to make such a claim.
‘‘The interpretation of pleadings is always a question
of law for the court . . . . Our review of the trial
court’s interpretation of the pleadings therefore is ple-
nary. . . . 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 upon 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
comprehension. . . . As long as the pleadings provide
sufficient notice of the facts claimed and the issues to
be tried and do not surprise or prejudice the opposing
party, we will not conclude that the complaint is insuffi-
cient to allow recovery.’’ (Citations omitted; internal
quotation marks omitted.) Flannery v. Singer Asset
Finance Co., LLC, 312 Conn. 286, 299–300, 94 A.3d
553 (2014).
1
The defendants argue that it was plain error for the
trial court to find Marsha Halpert liable for fraud
because the plaintiff did not properly assert a claim of
fraud against her. We disagree.
‘‘The essential elements of an action in common law
fraud . . . are that: (1) a false representation was made
as a statement of fact; (2) it was untrue and known to
be untrue by the party making it; (3) it was made to
induce the other party to act upon it; and (4) the other
party did so act upon that false representation to his
injury. . . . [T]he party to whom the false representa-
tion was made [must claim] to have relied on that repre-
sentation and to have suffered harm as a result of the
reliance.’’ (Internal quotation marks omitted.) Sturm v.
Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d
859 (2010).
A fair reading of the plaintiff’s complaint as a whole
reveals that the plaintiff properly set forth a claim of
fraud against both Isaac Halpert and Marsha Halpert.
In count four of her complaint, the plaintiff alleged that
she was induced by the representations of Isaac Halpert
to invest in the LLCs and that he knew, when he so
induced her, that her investment would be ‘‘misappro-
priated, used to maintain properties unrelated to this
investment endeavor, and/or wasted.’’ She further
alleged that she relied upon the representations of both
Isaac Halpert and Marsha Halpert ‘‘as to the organiza-
tion, structure and day-to-day management of the
investment endeavor.’’ The plaintiff also alleged that
both Isaac Halpert and Marsha Halpert deposited rent
checks, to which she was entitled to 50 percent, into
their personal bank accounts, have used LLC accounts
for personal matters and that they both were involved
in forging her name on financial documents and refused
to account for the funds to which she was claiming she
was entitled. Considering the plaintiff’s complaint in
its entirety, we conclude that the allegations therein
sufficiently set forth a claim of fraud against Marsha
Halpert.
2
The defendants also claim that the court erred in
finding Marsha Halpert liable to the plaintiff for conver-
sion because the plaintiff’s complaint did not suffi-
ciently allege a claim of conversion against Marsha
Halpert. We agree.
The plaintiff’s claim for conversion, which ‘‘occurs
when one, without authorization, assumes and exer-
cises ownership over property belonging to another, to
the exclusion of the owner’s rights’’; (internal quotation
marks omitted) Wellington Systems, Inc. v. Redding
Group, Inc., 49 Conn. App. 152, 169, 714 A.2d 21, cert.
denied, 247 Conn. 905, 720 A.2d 516 (1998); is set forth
in the fifth count of her complaint, which is entitled,
‘‘As Against Isaac Halpert.’’ The title of each count of
the plaintiff’s complaint indicates the subject of the
allegations, but only some of those titles list the name
of Marsha Halpert. The conversion count clearly and
unequivocally applies only to Isaac Halpert, both by
its title and by the allegations set forth therein which
describe only the conduct of Isaac Halpert. The plain-
tiff’s count for conversion contains no allegations what-
soever that reasonably can be construed to apply to
Marsha Halpert. The court’s finding of liability for con-
version against Marsha Halpert thus cannot stand.5
C
The defendants also claim that the court committed
plain error in awarding compensatory damages to the
plaintiff in the absence of a causal connection between
the losses for which she was awarded and the defen-
dants’ allegedly wrongful conduct.
‘‘[T]he trial court has broad discretion in determining
damages. . . . The determination of damages involves
a question of fact that will not be overturned unless it
is clearly erroneous. . . . Damages are recoverable
only to the extent that the evidence affords a sufficient
basis for estimating their amount in money with reason-
able certainty. . . . Thus, [t]he court must have evi-
dence by which it can calculate the damages, which is
not merely subjective or speculative, but which allows
for some objective ascertainment of the amount.’’
(Internal quotation marks omitted.) Milford Bank v.
Phoenix Contracting Group, Inc., 143 Conn. App. 519,
525, 72 A.3d 55 (2013).
Here, the court found that the plaintiff’s exhibits pro-
vided ‘‘abundant support for damages’’ as to her claims
for breach of fiduciary duty, fraud, conversion and bad
faith. The court awarded ‘‘compensatory damages in
the amount of $271,250 and $95,797.79 for the funds
proven by the defendant as alleged in the conversion
count.’’ In so doing, the court specifically referred to
the plaintiff’s testimony and ‘‘an exhibit prepared by
her that identifies the funds taken by [Isaac] Halpert
and the investment summary for purposes of the claims
of breach of fiduciary duty, fraud, conversion and bad
faith.’’ The court did not explicitly identify the damages
awarded on each of the plaintiff’s claims, nor did the
defendants ask it to do so. We cannot conclude, on the
record before us, that the court committed a patent,
readily discernible or obvious error in awarding dam-
ages as claimed by the defendants.
D
The defendants finally claim that the court erred in
awarding the plaintiff punitive damages in addition to
attorney’s fees in the absence of any legal authority to
do so. In her complaint, the plaintiff sought punitive
damages and attorney’s fees on her claims for fraud
and violation of CUTPA. Because the court determined
that the plaintiff failed to prove her CUTPA claim, its
award of punitive damages could only have been made
on her claim of fraud.
‘‘Punitive damages may be awarded upon a showing
of fraud.’’ Plikus v. Plikus, 26 Conn. App. 174, 180,
599 A.2d 392 (1991). Common-law punitive damages,
however, are limited, under well established Connecti-
cut law, ‘‘to litigation expenses, such as attorney’s fees,
less taxable costs.’’ Hylton v. Gunter, 313 Conn. 472,
484, 97 A.3d 970 (2014).
Here, the plaintiff submitted an affidavit of attorney’s
fees totalling $58,817.50, all of which the trial court
awarded, with the exception of $1180, which repre-
sented time spent by an individual unknown to the
court. The plaintiff also submitted a bill of costs totalling
$1777.29. The court awarded costs in the amount of
$1507.29, not allowing the plaintiff’s claim of $270 for
‘‘depositions of in-state witnesses’’ because the plaintiff
failed to submit proof of payment of those costs. The
court awarded punitive damages in the amount of
$175,000. The court did not articulate the legal or factual
basis of that award, nor is any such basis ascertainable
from the record. Because an award of punitive damages
on a claim of common-law fraud may include only attor-
ney’s fees and costs, both of which the court awarded
to the plaintiff separate and apart from its punitive
damages award, the court committed plain error in
awarding her an additional $175,000 in punitive dam-
ages. That award, which is patently erroneous, can-
not stand.
The judgment is reversed as against Marsha Halpert
for conversion; the award of punitive damages in the
amount of $175,000 is vacated; and the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
The original complaint also named as defendants Judah Liberman, 58
N. Walnut, LLC, 94 Cherry Street, LLC, 100 Burton Street, LLC, 44 Linden,
LLC, 49 Webb Street, LLC, 15 Cossett, LLC, 31 Webb, LLC, and MJM Manage-
ment, LLC. The plaintiff withdrew the complaint as to Judah Liberman on
February 2, 2016. After the original counsel for the Halperts and the various
limited liability companies was permitted to withdraw his appearance in
August, 2012, no new appearance was filed on behalf of the LLCs and those
parties therefore were defaulted for failing to appear. Judgment has not
been entered with respect to those parties and they are not parties to this
appeal. Any references to the defendants in this opinion are to Isaac Halpert
and Marsha Halpert.
2
The defendants also ask this court to exercise our supervisory powers
to review and reverse the judgment of the trial court. As our Supreme
Court previously has explained, ‘‘bypass doctrines permitting the review of
unpreserved claims such as [Golding] . . . and plain error [claims], are
generally adequate to protect the rights of the defendant and the integrity
of the judicial system . . . . [T]he supervisory authority of this state’s appel-
late courts is not intended to serve as a bypass to the bypass, permitting
the review of unpreserved claims of case specific error—constitutional or
not—that are not otherwise amenable to relief under Golding or the plain
error doctrine. . . . Consistent with this general principle, we will reverse
a [judgment] under our supervisory powers only in the rare case that fairness
and justice demand it. [T]he exercise of our supervisory powers is an extraor-
dinary remedy to be invoked only when circumstances are such that the
issue at hand, while not rising to the level of a constitutional violation, is
nonetheless of [the] utmost seriousness, not only for the integrity of a
particular trial but also for the perceived fairness of the judicial system as
a whole.’’ (Citations omitted; internal quotation marks omitted.) State v.
Reyes, 325 Conn. 815, 822–23, 160 A.3d 323 (2017); see State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). This case presents no such circum-
stances.
3
Although the plaintiff asserted additional claims against the defendants
in her complaint, she abandoned those claims at the beginning of the hearing
in damages.
4
‘‘For example, where a sole minority stockholder . . . is the victim of
a fraud perpetrated by the sole controlling stockholder . . . the injury, and
the action for redress, cannot be said to belong merely to the corporation. If
the controlling majority stockholder seeks to injure the minority stockholder
through the means of looting the corporation or so wrecking it that the
minority stockholder would get nothing out of his assets, the claim resulting
therefrom is sufficient to constitute an individual action. . . . Likewise,
where an injury sustained to a shareholder’s stock is peculiar to him alone,
and does not fall alike upon other stockholders, the shareholder has an
individual cause of action.’’ (Citations omitted.) Yanow v. Teal Industries,
Inc., 178 Conn. 262, 282 n.9, 422 A.2d 311 (1979).
Moreover, our Supreme Court has recognized that partners are generally
‘‘bound in a fiduciary relationship and act as trustees toward each other
and toward the partnership.’’ (Internal quotation marks omitted.) Spector
v. Konover, 57 Conn. App. 121, 127, 747 A.2d 39, cert. denied, 254 Conn.
913, 759 A.2d 507 (2000). ‘‘[I]t is a thoroughly well-settled equitable rule that
any one acting in a fiduciary relation shall not be permitted to make use
of that relation to benefit his own personal interest. This rule is strict in its
requirements and in its operation. It extends to all transactions where the
individual’s personal interests may be brought into conflict with his acts in
the fiduciary capacity, and it works independently of the question whether
there was fraud or whether there was good intention. . . . The rule applies
alike to agents, partners, guardians, executors and administrators.’’ (Empha-
sis in original; internal quotation marks omitted.) Id., 128.
5
Although the court improperly found Marsha Halpert liable for conver-
sion, it did not apportion its award of damages on the conversion count
between the two defendants and the defendants did not ask the court to
do so. The court’s award of damages on the conversion count thus remains
intact, but applies to Isaac Halpert only.