Featherston v. Katchko & Son Construction Services, Inc.

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PETER FEATHERSTON v. KATCHKO &
SON CONSTRUCTION SERVICES,
INC., ET AL.
(AC 42280)
Moll, Alexander and Suarez, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, S Co. and P
Co., for violations of the Connecticut Uniform Fraudulent Transfer Act
(CUFTA) (§ 52-552a et seq.) and the Connecticut Unfair Trade Practices
Act (CUTPA) (§ 42-110a et seq.). In 2012, the trial court rendered judg-
ment for the plaintiff against S Co. in a separate action. Soon after the
2012 judgment, S Co. ceased doing business, and the former president
of S Co. filed a certificate of incorporation forming P Co. The plaintiff
alleged that S Co. had fraudulently transferred all of its assets to P Co.
in order to prevent him from collecting on the 2012 judgment. The
plaintiff requested punitive damages under CUTPA in his second revised
complaint and in his posttrial brief; the trial court did not address
punitive damages in rendering judgment in favor of the plaintiff on all
counts. The court also awarded the plaintiff attorney’s fees on his CUTPA
count. The defendants appealed to this court. After the appeal had been
filed, the plaintiff filed a motion to amend the complaint to conform
the pleadings to the proof adduced at trial and a motion for punitive
damages. The court granted the motion to amend but denied the motion
for punitive damages. The defendants then amended their appeal. Held:
1. The defendants’ original appeal was not taken from a final judgment,
and this court lacked subject matter jurisdiction to entertain it, but,
nonetheless, the defendants’ amended appeal was jurisdictionally
proper; a final judgment was not rendered in this matter until the trial
court had denied the plaintiff’s motion for punitive damages, following
the original appeal, and the defendants’ amended appeal encompassed
the claims raised by the defendants in their original appeal, in addition
to the granting of the plaintiff’s postjudgment motion to amend, and
this court could review all of the defendants’ claims in the context of
their amended appeal.
2. The trial court abused its discretion in granting the plaintiff’s motion
to amend the complaint following judgment: no special circumstances
existed to warrant the amended complaint, in which the plaintiff improp-
erly asserted successor liability as a stand-alone claim, after the court
had rendered judgment; moreover, by granting the motion to amend,
the court enabled the plaintiff to present a claim after judgment that,
standing alone, was not legally cognizable, as successor liability is a
theory of liability to be alleged in support of a claim rather than raised
as an independent claim.
3. The trial court did not err in determining that the defendants had vio-
lated CUFTA:
a. The trial court properly found that there had been a transfer of assets
between S Co. and P Co., the record having supported the court’s finding,
by clear and convincing evidence, that S Co. transferred assets, specifi-
cally two excavators, to P Co., but those were the only assets shown
by the plaintiff to have been transferred, and a finding that any other
assets were transferred by S Co. to P Co. would be based on assumption
and speculation.
b. The trial court properly determined that the defendants were liable
under § 52-552e (a) (1) of CUFTA, in that the plaintiff produced sufficient
evidence of S Co. having transferred assets to P Co. with an actual
intent to hinder, delay, or defraud the plaintiff; in determining that the
defendants had violated § 52-552e (a) (1), the court found that the trans-
fer between S Co. and P Co. met a number of the indicia of fraud set
forth in § 52-552e (b), including that S Co. had been sued and the 2012
judgment was rendered before the transfer had been made, S Co., which
the court found had ceased its business shortly following the 2012
judgment, was insolvent or became insolvent shortly following the trans-
fer, and the formation of P Co. following the rendering of the 2012
judgment increased the difficulty facing the plaintiff in his efforts to
collect on the judgment.
c. The trial court improperly determined that the defendants were liable
under § 52-552f (a) of CUFTA, as the plaintiff did not produce sufficient
evidence that S Co. was insolvent at the time of the transfer or became
insolvent as a result thereof; although there was evidence in the record
demonstrating that S Co. became insolvent by the end of 2012, sometime
following the transfer, there was no evidence reflecting the date of the
transfer, thus, it could not be determined whether S Co. was insolvent
at the time of the transfer, and there was insufficient evidence to make
a finding as to whether the transfer of the excavators, itself, resulted
in S Co. becoming insolvent.
d. The trial court erred in encompassing any other property, besides
two excavators, within its order of relief under CUFTA, as the order
was overbroad in authorizing the attachment of property that was not
subject to the action: the two excavators, which remain in the possession
of P Co., were the only assets that were properly found, on the record,
to have been fraudulently transferred from S Co. to P Co.; moreover,
there was no error in the court’s ordering that the plaintiff may attach
the two excavators in the sum of the 2012 judgment, plus interest, and
that the defendants were enjoined from transferring those excavators;
furthermore, the defendants’ claim that the court’s relief under CUFTA
was improper because the court failed to determine the value of the
assets transferred pursuant to statute (§ 52-552i) was unavailing, as the
court did not award damages under CUFTA, only a monetary sum in
the form of attorney’s fees under CUTPA, which had no bearing on the
relief afforded under CUFTA, and the defendants’ reliance on § 52-552i
(b), which grants a trial court the discretion to award, as damages against
the appropriate party, the lesser of the value of the asset transferred
and the amount necessary to satisfy the creditor’s claim, was misplaced.
4. The defendants’ claim that the trial court erred in rendering judgment in
favor of the plaintiff on the count of his complaint sounding in a violation
of CUTPA was unavailing; the crux of the defendants’ contention was
that the success of the plaintiff’s CUTPA claim was predicated on the
court’s finding that the defendants had committed a fraudulent transfer
under CUFTA, and, as the court properly determined that that the defen-
dants had engaged in a fraudulent transfer in violation of § 52-552e (a)
(1), the defendants’ claim failed.
Argued September 14—officially released December 22, 2020
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged fraudulent transfer of assets, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk where the matter was
tried to the court, Hon. Taggart D. Adams, judge trial
referee; judgment for the plaintiff, from which the
defendants appealed to this court; thereafter, the court,
Hon. Taggart D. Adams, judge trial referee, granted
the plaintiff’s motion to amend the complaint and
denied the plaintiff’s motion for an order of punitive
damages, and the defendants amended their appeal.
Appeal dismissed in part; reversed in part; judg-
ment directed.
David W. Rubin, with whom was Jonathan D. Jacob-
son, for the appellants (defendants).
Brenden P. Leydon, with whom, on the brief, was
Mark Sank, for the appellee (plaintiff).
Opinion
MOLL, J. The defendants, Katchko & Son Construc-
tion Services, Inc. (Son Singular), and Katchko & Sons
Construction Services, Inc. (Sons Plural),1 appeal from
the judgment of the trial court rendered in favor of the
plaintiff, Peter Featherston. On appeal, the defendants
claim that the court (1) abused its discretion in granting
the plaintiff’s motion to amend his second revised com-
plaint, (2) improperly rendered judgment in favor of
the plaintiff on counts one and two of his second revised
complaint sounding in violations of the Connecticut
Uniform Fraudulent Transfer Act (CUFTA), General
Statutes § 52-552a et seq., and (3) improperly rendered
judgment in favor of the plaintiff on count three of his
second revised complaint sounding in a violation of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq.2 We dismiss, sua
sponte, the defendants’ original appeal for lack of a
final judgment; see part I of this opinion; and, with
respect to the amended appeal, we affirm in part and
reverse in part the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In 2006, the plaintiff
commenced a civil action against, among other parties,
Katchko Construction Services, Inc., raising claims
sounding in, inter alia, breach of contract. See Feath-
erston v. Tautel & Sons Consulting, LLC, Superior
Court, judicial district of Fairfield, Docket No. CV-06-
5002924-S (2006 action). On February 7, 2011, while the
2006 action was pending, Robert Katchko, the president
of Katchko Construction Services, Inc., filed a certifi-
cate of amendment with the Secretary of the State
changing the name of Katchko Construction Services,
Inc., to Son Singular. On April 17, 2012, the trial court,
Tyma, J., rendered judgment in favor of the plaintiff
on his breach of contract claim against Son Singular3
in the amount of $216,972.83 (2012 judgment). Son Sin-
gular appealed from the 2012 judgment, but the appeal
was dismissed on December 12, 2012.
Less than three months after the judgment, on July
1, 2012, Son Singular ceased doing business. On August
6, 2012, a certificate of incorporation was filed with the
Secretary of the State forming Sons Plural. On January
27, 2014, Robert Katchko filed a certification of dissolu-
tion with the Secretary of the State dissolving Son
Singular.
On August 22, 2016, the plaintiff commenced the pres-
ent action against the defendants. On April 24, 2017, the
plaintiff filed a second revised three count complaint.
Count one asserted a fraudulent transfer claim under
CUFTA, specifically, General Statutes § 52-552e. Count
two also asserted a fraudulent transfer claim under
CUFTA, specifically, General Statutes § 52-552f. Count
three asserted a violation of CUTPA. The crux of the
plaintiff’s allegations was that Son Singular had trans-
ferred all of its assets to Sons Plural in order to prevent
the plaintiff from collecting on the 2012 judgment. On
January 23, 2018, the defendants filed an answer deny-
ing the material allegations of the second revised com-
plaint.
The matter was tried to the court, Hon. Taggart D.
Adams, judge trial referee, on January 24 and 25, 2018.
During his case-in-chief, the plaintiff introduced several
exhibits and elicited testimony from Anthony Branca,
an accountant who had performed tax preparation ser-
vices for the defendants. The plaintiff also testified.
On January 25, 2018, after the plaintiff had rested, the
defendants orally moved for a judgment of dismissal
for failure to make out a prima facie case pursuant to
Practice Book § 15-8.4 The court reserved its decision
on the motion to dismiss until the parties had an oppor-
tunity to file memoranda on the motion. On June 11,
2018, after the parties had submitted their respective
memoranda, the court issued a memorandum of deci-
sion denying the motion to dismiss, concluding that
the plaintiff had established a prima facie case for his
fraudulent transfer and CUTPA claims. On July 17, 2018,
the parties appeared before the court, and the defen-
dants’ counsel represented that the defendants had
elected to rest without putting on evidence.
On November 8, 2018, after the parties had submitted
their respective posttrial briefs,5 the court issued a
memorandum of decision rendering judgment in favor
of the plaintiff on all three counts of his second revised
complaint. As to the defendants’ violation of CUFTA,
the court ordered relief pursuant to General Statutes
§ 52-552h, including permitting the plaintiff to attach
property of the defendants in the amount of the 2012
judgment, plus interest. As relief for the defendants’
violation of CUTPA, the court awarded the plaintiff
$18,388 in attorney’s fees under CUTPA. On November
14, 2018, the defendants filed their original appeal chal-
lenging the November 8, 2018 judgment and the denial
of their motion to dismiss.6
On November 28, 2018, the plaintiff filed a motion to
amend his second revised complaint, with an accompa-
nying proposed amended complaint filed the same day,
to conform the pleadings to the proof adduced at trial
(motion to amend). The proposed amended complaint
set forth, as a new fourth count, a purported stand-
alone claim for successor liability, and added into the
prayer for relief a request for a finding of successor
liability. The complaint otherwise was identical to the
second revised complaint. On December 27, 2018, the
defendants objected to the motion to amend. On Janu-
ary 11, 2019, the plaintiff filed a reply brief. On January
14, 2019, the court granted the motion to amend and
overruled the defendants’ objection. Thereafter, no
motion was filed, and no action was taken by the court,
directed to the November 8, 2018 judgment. On January
24, 2019, the defendants filed an amended appeal to
encompass the court’s granting of the motion to amend.
Additional facts and procedural history will be set forth
as necessary.
I
As a preliminary matter, we address, sua sponte,
whether the defendants’ original appeal filed on Novem-
ber 14, 2018, was taken from a final judgment.7 ‘‘The
jurisdiction of the appellate courts is restricted to
appeals from judgments that are final. . . . The policy
concerns underlying the final judgment rule are to dis-
courage piecemeal appeals and to facilitate the speedy
and orderly disposition of cases at the trial court level.
. . . The appellate courts have a duty to dismiss, even
on [their] own initiative, any appeal that [they lack]
jurisdiction to hear. . . . We therefore must always
determine the threshold question of whether the appeal
is taken from a final judgment before considering the
merits of the claim.’’ (Citations omitted; internal quota-
tion marks omitted.) Wolfork v. Yale Medical Group,
335 Conn. 448, 459, 239 A.3d 272 (2020). We conclude
that the original appeal was not taken from a final
judgment, and, therefore, we lack subject matter juris-
diction to entertain it. We nonetheless conclude that
the defendants’ amended appeal, filed on January 24,
2019, is jurisdictionally proper and encompasses all of
their claims on appeal.
Our jurisdictional analysis is governed by Perkins v.
Colonial Cemeteries, Inc., 53 Conn. App. 646, 734 A.2d
1010 (1999). In Perkins, this court dismissed, for lack
of a final judgment, an appeal challenging the denials
of the defendants’ postverdict motions because,
although the defendants had been found liable under
CUTPA by a jury, the trial court had not yet ruled on
the plaintiff’s request for punitive damages under
CUTPA. Id., 649; see also Hylton v. Gunter, 313 Conn.
472, 487 n.15, 97 A.3d 970 (2014) (citing Perkins in
explaining that ‘‘statutory punitive damage awards,
which in many cases may be awarded in addition to
attorney’s fees and costs . . . present unique final
judgment considerations’’ (citation omitted)).
In the present case, the plaintiff requested punitive
damages under CUTPA8 in his second revised complaint
and in his posttrial brief.9 In rendering judgment in favor
of the plaintiff on his CUTPA claim, the court made no
mention of punitive damages; instead, the court
awarded the plaintiff $18,338 in attorney’s fees upon its
determination that the attorney’s fees requested were
reasonable and compensable under CUTPA.10 On
November 29, 2018, after the defendants had filed their
original appeal, the plaintiff filed a motion requesting
that the court award punitive damages, which the court
summarily denied on January 14, 2019.11
Under Perkins, a final judgment was not rendered in
this matter until January 14, 2019, when the court denied
the plaintiff’s motion for punitive damages. Therefore,
the defendants’ original appeal, filed on November 14,
2018, was not taken from a final judgment, and we
dismiss, sua sponte, the original appeal for lack of a
final judgment.
Notwithstanding the jurisdictional defect in the
defendants’ original appeal, the defendants’ amended
appeal, filed on January 24, 2019, is jurisdictionally
proper. See Practice Book § 61-9 (‘‘[i]f the original
appeal is dismissed for lack of jurisdiction, the amended
appeal shall remain pending if it was filed from a judg-
ment or order from which an original appeal properly
could have been filed’’). The amended appeal encom-
passes the claims raised by the defendants in their origi-
nal appeal, in addition to the granting of the plaintiff’s
motion to amend. Accordingly, we may review all of
the defendants’ claims in the context of their amended
appeal. See, e.g., Randazzo v. Sakon, 181 Conn. App.
80, 87 n.7, 189 A.3d 616 (dismissing original appeal
for lack of final judgment but reviewing claims under
amended appeal pursuant to § 61-9), cert. denied, 330
Conn. 909, 193 A.3d 560 (2018); Rosa v. Lawrence &
Memorial Hospital, 145 Conn. App. 275, 282 n.9, 74 A.3d
534 (2013) (same); Midland Funding, LLC v. Tripp,
134 Conn. App. 195, 196 n.1, 38 A.3d 221 (2012) (same).
II
Turning to the defendants’ claims on appeal, we first
address the defendants’ assertion that the trial court
abused its discretion in granting the plaintiff’s motion
to amend. For the reasons that follow, we agree.
‘‘Our standard of review . . . is well settled. While
our courts have been liberal in permitting amendments
. . . this liberality has limitations. Amendments should
be made seasonably. Factors to be considered in pass-
ing on a motion to amend are the length of the delay,
fairness to the opposing parties and the negligence, if
any, of the party offering the amendment. . . . The
motion to amend is addressed to the trial court’s discre-
tion which may be exercised to restrain the amendment
of pleadings so far as necessary to prevent unreasonable
delay of the trial. . . . Whether to allow an amendment
is a matter left to the sound discretion of the trial court.
This court will not disturb a trial court’s ruling on a
proposed amendment unless there has been a clear
abuse of that discretion.’’ (Internal quotation marks
omitted.) Burton v. Stamford, 115 Conn. App. 47, 57,
971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108(2009). ‘‘It is the [burden of the party challenging the
court’s ruling] to demonstrate that the trial court clearly
abused its discretion.’’ (Internal quotation marks omit-
ted.) Berlin Batting Cages, Inc. v. Planning & Zoning
Commission, 76 Conn. App. 199, 211, 821 A.2d 269(2003).
The following additional facts and procedural history
are relevant to our disposition of this claim. In his sec-
ond revised complaint, in support of his claims sound-
ing in violations of CUFTA and CUTPA, the plaintiff
alleged in relevant part that (1) the 2012 judgment had
been rendered in his favor and against Son Singular,12
(2) Robert Katchko formed Sons Plural on or about
August 6, 2012, and (3) Son Singular transferred all of
its assets to Sons Plural. The plaintiff did not expressly
allege that Sons Plural was liable to him for any claim
under a theory of successor liability. In his posttrial
brief, the plaintiff asserted that he was entitled to an
award of damages against Sons Plural under a theory of
successor liability, contending that (1) Robert Katchko
was the principal of both Son Singular and Sons Plural,
and (2) the cessation of Son Singular’s business in July,
2012, and the formation of Sons Plural in August, 2012,
were carried out with an intent to deprive him of his
ability to collect on the 2012 judgment.
The trial court did not render judgment in the plain-
tiff’s favor on any claim predicated upon a theory of
successor liability; however, it found that the plaintiff
had ‘‘shown . . . that a Katchko entity [Sons Plural]
was operating [certain] equipment in 2016 while the
Katchko entity that operated the equipment in 2012 and
against which [the plaintiff] obtained a six figure civil
court judgment [Son Singular] was without assets and
closed.’’ Additionally, in denying the defendants’ motion
to dismiss, on which the court relied in rendering judg-
ment in the plaintiff’s favor, the court found that the
plaintiff had ‘‘submitted evidence of his judgment
against [Son Singular] in 2012, the subsequent cessation
of that entity in the middle of 2012, and the creation
of a new corporate entity, [Sons Plural], in August, 2012,
just days after the [2012] judgment was entered, that
apparently took over the business in full and left the
prior company closed and without assets.’’
On November 26, 2018, after the defendants had filed
their original appeal, they filed with this court a prelimi-
nary statement of the issues in compliance with Practice
Book § 63-4 (a) (1), raising, inter alia, the following
issue: ‘‘Did the trial court err in finding, in essence,
successor liability, when such a claim was neither plead
nor tried before the trial court?’’
Two days later, the plaintiff filed the motion to amend
‘‘to more specifically call for successor liability so as
to conform the pleadings to the proof as found by the
court.’’ The plaintiff asserted that the evidence in the
record and the findings made by the court demonstrated
that Sons Plural ‘‘was a mere continuation of [Son Singu-
lar] and that the transaction was fraudulent.’’ The plain-
tiff further asserted that the defendants were not preju-
diced by the motion to amend as the proposed amended
complaint did ‘‘not add a single new factual allegation
and merely more clearly [set] forth a claim for successor
liability, which has already been properly found by the
court.’’ Additionally, the plaintiff contended that succes-
sor liability was an appropriate remedy under CUTPA.
Finally, the plaintiff stated that, ‘‘[a]lthough the [second
revised complaint] and the proof at trial are likely suffi-
cient anyway, out of an abundance of caution the plain-
tiff is seeking to amend to more clearly set this forth
so the case can fairly be reviewed on its merits rather
than allow the defendants to continue to evade justice
on procedural technicalities.’’ The court, over the defen-
dants’ objection, granted the motion to amend.
In articulating its decision granting the plaintiff’s
motion to amend,13 the court explained that, ‘‘[a]lthough
not stated in those terms, the question of successor
liability has been at issue in this controversy at least
since the defendant’s14 decision to form a new corpora-
tion and change its name shortly after the [2012 judg-
ment]. . . . Previously, in 2011, [Katchko Construction
Services, Inc.] had changed its name by simply filing
an amendment with the Secretary of the State. . . .
‘‘The evidence at trial included very persuasive testi-
monial evidence by the plaintiff that [certain] equipment
at [Sons Plural’s] place of business in late 2016 was the
same equipment he saw working at a residence he was
building in 2005 (work that gave rise to the [2012 judg-
ment]). There was also unrebutted evidence by [Branca]
who prepared tax returns for [Son Singular] showing
that [Son Singular] was ‘closed’ or dissolved as of July
1, 2012, and the company’s equipment was transferred
to some other entity at no gain or loss to [Robert]
Katchko or his business. Therefore, the Katchko busi-
ness entities have a history of transferring valuable
assets from one to another, and this court has already
determined that the defendants have violated the fraud-
ulent transfer statutes. . . . With this background the
court determined that the proposed amendment relat-
ing to successor liability was undoubtedly somewhat
late, but was not unfairly prejudicial to the defendants,
and did not simply appear out of thin air.
‘‘In that connection the court notes that the defen-
dants have declined to present evidence on their own
behalf, and in their motion for articulation have pointed
to no evidence that they have been prevented from
offering. The court also finds the defendants’ contention
that the amended complaint ‘introduces an entirely new
measure of damages’ against them is completely unsup-
ported by any legal or factual argument.’’ (Citations
omitted; footnote added.)
The defendants claim that the court abused its discre-
tion by permitting the plaintiff to amend his complaint
after the court had issued its November 8, 2018 memo-
randum of decision rendering judgment in his favor.
More specifically, the defendants contend that the court
permitted the amendment without identifying any spe-
cial circumstances warranting the amendment follow-
ing the rendering of the November 8, 2018 judgment.
For the reasons that follow, we conclude that the court
abused its discretion in permitting the amendment.15
It is well established that a ‘‘trial court may permit
an amendment to pleadings at any time’’; Maloney v.
PCRE, LLC, 68 Conn. App. 727, 753, 793 A.2d 1118(2002); including, under special circumstances, after a
judgment is rendered. In Burton v. Stamford, supra,115 Conn. App. 47, immediately after the trial court
had granted the defendant’s oral motion for a directed
verdict on the ground of governmental immunity, the
plaintiff made an oral motion to amend his complaint,
which the court denied. Id., 52. Thereafter, the plaintiff
filed a motion to set aside the directed verdict on the
ground that the court had improperly denied his motion
to amend. Id. The court agreed that the motion to amend
should have been granted, whereupon it set aside the
verdict and ordered a new trial. Id., 52–53. The defen-
dant appealed from that judgment,16 contending, ini-
tially, that it was impermissible to file a motion to amend
a pleading after the granting of a directed verdict. Id.,
58. This court rejected that proposition, citing, inter
alia, precedent from our Supreme Court providing that
‘‘an amendment after a verdict has entered may be
allowed under special circumstances, but it will not be
in ordinary cases and that such determination is . . .
a matter of discretion . . . .’’ (Internal quotation marks
omitted.) Id., 59, quoting McAlister v. Clark, 33 Conn.
253, 257 (1866). Relying on McAlister and other appel-
late case law, this court determined ‘‘that the [trial]
court is not prohibited from granting a motion to amend
after judgment is rendered. Rather, the court must
determine whether the particular circumstances man-
date such exercise of its discretion.’’ Burton v. Stam-
ford, supra, 59. Turning then to the merits of the defen-
dant’s claim, this court concluded, upon review of the
record and the arguments of the parties, that the trial
court did not abuse its discretion in permitting the
amendment.17 Id., 61–62; see id. (affirming granting of
postverdict motion to amend when, although plaintiff’s
counsel had been negligent in belatedly requesting
amendment, there was no substantial delay, defendant
was not prejudiced, and court’s initial denial of motion
to amend had ‘‘turned a plaintiff claiming serious injur-
ies out of court without a decision on the merits of his
claim’’ (internal quotation marks omitted)).
We construe Burton as demonstrating that, in exer-
cising their discretion with regard to motions to amend
pleadings filed after a judgment has been rendered, trial
courts must recognize that such amendments should
be permitted sparingly and only when special circum-
stances exist to warrant them. See Burton v. Stamford,
supra, 115 Conn. App. 61–62; see also Ideal Financing
Assn. v. LaBonte, 120 Conn. 190, 195–96, 180 A. 300(1935) (reversing denial of motions to open judgment
and for permission to file amended answer when defen-
dant sought to raise special defense that would have
resulted in complete defense to action); Betts v. Hoyt,
13 Conn. 469, 471 (1840) (advising Superior Court to
deny plaintiff’s motion to amend declaration filed fol-
lowing court’s granting of defendant’s motion for arrest
of judgment, but observing that amendment would have
been permissible if plaintiff had set forth facts in motion
demonstrating that he would suffer ‘‘serious and irre-
trievable loss’’ from refusal of amendment, such as loss
of debt by operation of statute of limitations or dis-
charge of lien created by attachment).
Here, in granting the plaintiff’s motion to amend, the
trial court determined that, although the motion was
untimely, the issue of successor liability had been in
controversy since before the inception of the present
case and the defendants were not prejudiced by the
amendment. Nothing in the record or in the court’s
articulation, however, reflects any special circum-
stances that justified the untimely amendment. More-
over, by granting the motion to amend, the court
enabled the plaintiff to present a claim after judgment
that, standing alone, is not legally cognizable. In the
plaintiff’s amended complaint, the plaintiff added a
fourth count incorporating therein allegations set forth
in the preceding third count and further alleging that
Sons Plural was liable for the debt of Son Singular
under a theory of successor liability. As the plaintiff
acknowledged in his appellate brief, however, our
Supreme Court has stated that ‘‘successor liability does
not create a new cause of action against the [successor]
so much as it transfers the liability of the predecessor
to the [successor].’’ (Emphasis in original; internal quo-
tation marks omitted.) Robbins v. Physicians for Wom-
en’s Health, LLC, 311 Conn. 707, 716, 90 A.3d 925 (2014),
quoting In re Fairchild Aircraft Corp., 184 B.R. 910,
920 (Bankr. W.D. Tex. 1995), vacated on other grounds,
220 B.R. 909 (Bankr. W.D. Tex. 1998). Successor liability
is a theory of liability to be alleged in support of a
claim rather than raised as an independent claim, and,
therefore, it was improper for the plaintiff to plead
successor liability as a stand-alone count in the
amended complaint.
We are mindful that it is rare for this court to disturb
a trial court’s exercise of its discretion in determining
whether to permit an amendment. See Watson Real
Estate, LLC v. Woodland Ridge, LLC, 187 Conn. App.
282, 300, 202 A.3d 1033 (2019) (‘‘[o]n rare occasions,
this court has found an abuse of discretion by the trial
court in determining whether an amendment should be
permitted’’ (internal quotation marks omitted)). Never-
theless, our precedent instructs that amendments fol-
lowing the rendering of a judgment should be granted
only when special circumstances justify them. In the
present case, no special circumstances existed to war-
rant the amended complaint, in which the plaintiff
improperly asserted successor liability as a stand-alone
claim, after the court had rendered the November 8,
2018 judgment.18 Accordingly, we conclude that the trial
court abused its discretion in granting the plaintiff’s
motion to amend.19
III
We next consider the defendants’ claims that the trial
court improperly rendered judgment in favor of the
plaintiff on counts one and two of his second revised
complaint sounding in violations of CUFTA.20 More spe-
cifically, the defendants assert that the court (1) incor-
rectly determined that the plaintiff met his burden to
demonstrate that the defendants had committed a
fraudulent transfer under §§ 52-552e (a) (1) and 52-552f
(a), and (2) committed error in awarding relief to the
plaintiff under CUFTA. We address each of these argu-
ments in turn.
A
The defendants claim that the court erred in
determining that the plaintiff established that they had
committed a fraudulent transfer under §§ 52-552e (a)
(1) and 52-552f (a). We conclude that the court properly
determined that the defendants were liable under § 52-
552e (a) (1) and improperly determined that they were
liable pursuant to § 52-552f (a).
We begin by setting forth the following standard of
review and legal principles governing our review of the
defendants’ claims. ‘‘The determination of whether a
fraudulent transfer took place is a question of fact and
it is axiomatic that [t]he trial court’s [factual] findings
are binding upon this court unless they are clearly erro-
neous in light of the evidence and the pleadings in the
record as a whole. . . . We cannot retry the facts or
pass on the credibility of the witnesses. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . The ele-
ments of fraudulent conveyance, including whether the
defendants acted with fraudulent intent, must be proven
by clear, precise and unequivocal evidence.’’ (Citation
omitted; internal quotation marks omitted.) Certain
Underwriters at Lloyd’s, London v. Cooperman, 289
Conn. 383, 395, 957 A.2d 836 (2008). This standard, also
referred to as the ‘‘clear and convincing’’ standard, ‘‘is
met if the evidence induces in the mind of the trier
a reasonable belief that the facts asserted are highly
probably true, that the probability that they are true or
exist is substantially greater than the probability that
they are false or do not exist. . . . Put another way,
the clear and convincing standard should operate as a
weighty caution upon the minds of all judges, and it
forbids relief whenever the evidence is loose, equivocal
or contradictory.’’ (Citation omitted; internal quotation
marks omitted.) Thurlow v. Hulten, Superior Court,
judicial district of Hartford, Docket No. X04-CV-05-
4059315-S (October 15, 2004) (reprinted at 173 Conn.
App. 698, 718, 164 A.3d 858 (2017)), aff’d, 173 Conn.
App. 694, 164 A.3d 858 (2017).
‘‘To establish that a transfer is fraudulent, the creditor
may, but need not, prove actual fraudulent intent. See
General Statutes § 52-552e (a) (1) and (b) . . . . Liabil-
ity also can be established on the basis of constructive
fraud when a transfer of the debtor’s assets occurs after
the creditor’s claim arose and other circumstances are
present, including that the debtor has not received rea-
sonably equivalent value in exchange for the transfer,
that the transfer renders the debtor insolvent (i.e.,
greater debts than assets), and/or that the transfer is
made to an insider, such as the debtor’s relative. See
General Statutes § 52-552e (a) (2); General Statutes
§ 52-552f (a) and (b) . . . .’’ (Footnotes omitted; inter-
nal quotation marks omitted.) Geriatrics, Inc. v. McGee,
332 Conn. 1, 11–12, 208 A.3d 1197 (2019).
The following additional facts are relevant to our
resolution of the defendants’ claims. In rendering judg-
ment in the plaintiff’s favor, the court relied on the
findings set forth in its decision denying the defendants’
motion to dismiss. In that decision, the court made the
following relevant findings. ‘‘[The plaintiff] testified [at
trial] in a very credible fashion. [The 2012] judgment
against Son [Singular] arose out of excavation work
performed by [Son Singular] . . . in connection with
the construction of a single family residence for invest-
ment purposes on property owned by [the plaintiff] in
Fairfield . . . in 2005. During that project, [the plain-
tiff] visited the site a number of times, sometimes in
the company of his young sons, and had a clear recollec-
tion of the construction equipment [Son Singular] had
on that site in 2005, which included a very large excava-
tor. Specifically, [Son Singular] used two excavators
while working on the foundation and septic system
for the residence, one larger, one smaller, and some
additional trucks. [The plaintiff] testified he was at the
site . . . several times a week and at least one of his
sons climbed on the . . . equipment during one or
more of these visits.
‘‘Subsequently, on November 12 and 13, 2016, [the
plaintiff] drove by [Sons Plural’s] business headquarters
in Stamford . . . and testified at trial in response to
an inquiry by the court that he was ‘absolutely sure’
that the large and small excavators at that location were
the same equipment [Son Singular] used on his property
in 2005. . . . He testified on direct examination that
the very large excavator ‘was the exact same as far as
I could tell it was the exact same machine. It had the
paint, it had the scratches, it had, you know, it had all
the same—the same look and feel as the one we were—
we were next to and riding in consistently.’ . . . The
essence of this testimony was repeated on cross-exami-
nation. In response to questions by [the defendants’]
attorney, [the plaintiff] testified that one piece of equip-
ment used in 2005, ‘was the one with the extended long
arm that is used for big digs, where you have to go
further out and it isn’t just a regular little dump—you
know excavator. So that one is very vivid and clear.
The other was very vivid and clear because [Son Singu-
lar] used it on the septic system.’ . . . When asked
what equipment he had a recollection of his son riding
that provides a ‘special memory’ of the equipment, [the
plaintiff] said, ‘yes one was an excavator and one was
the extended large excavator.’ . . .
‘‘[The plaintiff] continued: ‘But all I know is that the
equipment that [Son Singular] used on my property [in
2005] is the same equipment that [Sons Plural] was
using when I went to [its] place of business in [2016],
and I witnessed the same equipment. Matter of fact
. . . it’s not only the same equipment, it’s the same
writing on the equipment because I’m in the publishing
business, and I was at that time, and have been for
many, many years. . . . So to make it shorter, it was
when I went [to Sons Plural’s place of business] in 2016,
I noticed the same thing I noticed back when [Son
Singular] was working on my property [in 2005], with
the exact same equipment. The fonts on the actual
machines that were written in the back in—in yellow
type on this big green background that says Katchko
were in different fonts on different equipment. And I
remember noticing at that time saying, geesh, [Robert
Katchko] didn’t even use the right font consistently on
his product, on his—the branding. And I just thought
that was odd that one would be more Helvetica and
one would be more of an Arial, Courier look . . . but
that’s kind of one of the memories that came back about
the equipment in particular.’’ (Citations omitted.)
The court further found in relevant part: ‘‘Branca, a
certified public accountant . . . performed accounting
services, including tax return preparation, for [Son Sin-
gular] and related or successor entities up to 2013. . . .
[Plaintiff’s trial] [e]xhibit 5 is a copy of the 2012 federal
income tax return prepared by Branca’s firm for [Son
Singular], an S corporation. . . . Branca . . . testified
that the amount of gross sales or receipts reported on
[e]xhibit 5—$511,696—only represented sales or
receipts for the first half of 2012 . . . . This is con-
firmed by the fact that gross receipts for the full year
2011, were $1,329,971. . . . Branca also testified from
the [Son Singular] records that various pieces of its
equipment were transferred to ‘somebody or some
other entity’ during 2012, at ‘book value,’ i.e., ‘no gain,
no loss.’ . . . The 2012 federal income tax return for
[Son Singular], Form 4562, ‘Depreciation and Amortiza-
tion Report,’ contains an entry for ‘heavy equipment’
put in service in the year 2000, with a cost of $311,585
and fully depreciated by the year 2012. . . . All of the
equipment [was] transferred out of [Son Singular] as
set forth above for no gain or loss. Furthermore there
was no gain or loss to Robert Katchko personally, on
his schedule K-1.’’ (Citations omitted.) The court also
found, on the basis of evidence in the record, that Son
Singular was ‘‘ ‘closed’ ’’ on July 1, 2012, and that Sons
Plural was formed on August 6, 2012.
The court then concluded that the plaintiff had sub-
mitted sufficient evidence to support a prima facie claim
that the defendants had violated CUFTA. Specifically,
the court determined that ‘‘[the plaintiff] has submitted
evidence of his judgment against [Son Singular] in 2012,
the subsequent cessation of that entity in the middle
of 2012, and the creation of a new corporate entity,
[Sons Plural], in August, 2012, just days after the [2012]
judgment was entered, that apparently took over the
business in full and left the prior company closed and
without assets. This transfer meets many of the indicia
of an intent to defraud set forth in [§ 52-552e (b)] and
all of the indicia of a fraudulent transfer set forth in
§ [52-552f (a)]. Specifically, § 52-552e (b) articulates a
minimum of eleven factors to consider in determining
whether there was actual intent to defraud and the
record in this case arguably supports a finding by clear
and convincing evidence that at least seven or eight of
these factors pointing toward a fraudulent intent exist,
i.e., § 52-552e (b) (1) through (4), (5), (7), (9), and (10).
‘‘It is worth noting in this regard that in 2011, before
[the 2012 judgment], [Robert] Katchko simply filed an
amendment to the corporate name [of Katchko Con-
struction Services, Inc.] changing it to [Son Singular].
However, after the judgment was entered, an entirely
new corporate entity was created—[Sons Plural]—a
circumstance that increased the difficulty facing [the
plaintiff] in efforts to collect on the [2012] judgment.
‘‘With respect to liability under § 52-552f (a), [Son
Singular] transferred assets to [Sons Plural] after [the
plaintiff’s] claim arose. [Son Singular] received no
equivalent value in return, and without any assets, sim-
ply ceased doing business thereafter.’’
In its subsequent memorandum of decision rendering
judgment in the plaintiff’s favor, the court stated in
relevant part that, in denying the defendants’ motion
to dismiss, it had ‘‘found that [the plaintiff] testified ‘in
a very credible fashion,’ and specifically quoted [the
plaintiff’s] testimony to point out how specific it was
in describing the defendants’ construction equipment,
which is the subject of this case and the circumstances
that allowed that testimony to be so specific. [The]
court concluded that [the plaintiff’s] testimony and
other evidence supported the court’s finding that his
claim was proven by ‘clear, precise and unequivocal
evidence.’
‘‘The defendants’ [posttrial brief] . . . argued that
[the] plaintiff failed to carry his burden of proving there
was not reasonable value given for the assets trans-
ferred. This is a particularly weak argument. In this
case the plaintiff proved that there was no value given
by [Sons Plural] because [Son Singular] was left without
assets, and the business was closed . . . . The fact
that [the plaintiff] could not definitively give a value to
the transferred equipment is of no moment. He did give
evidence that equipment he saw on the construction
site where his almost $217,000 judgment against [Son
Singular] arose in 2012, was the same as he saw at the
[Sons Plural] facility in Stamford in 2016. This evidence
was persuasive, and no contradictory evidence was
offered. Thus, [the plaintiff] has shown, as found by
this court, that a Katchko entity, [Sons Plural], was
operating the equipment in 2016, while the Katchko
entity that operated the equipment in 2012, and against
which [the plaintiff] obtained a six figure civil court
judgment, [Son Singular], was without assets and
closed. . . .
‘‘[I]n the absence of any countervailing evidence since
[the denial of the defendants’ motion to dismiss], the
court finds that the defendants have violated . . .
§§ 52-552e and [52-552f].’’
The defendants assert that the court improperly
found that they had committed a fraudulent transfer
under both §§ 52-552e (a) (1) and 52-552f (a). They raise
arguments specific to each statute, which we address
subsequently in this opinion. Initially, we consider the
defendants’ contention that the court erred in determin-
ing that they had violated both statutes because the
court incorrectly found that there was a transfer of
assets between Son Singular and Sons Plural. More
specifically, they contend that the plaintiff did not intro-
duce clear and convincing evidence of a transfer of any
specifically identifiable assets. We are not persuaded.
To establish liability for a fraudulent transfer under
either § 52-552e (a) (1) or § 52-552f (a), the plaintiff had
the burden of proving that a transfer had been made
by Son Singular to Sons Plural after the 2012 judgment
had been rendered.21 See General Statutes §§ 52-552e
(a) and 52-552f (a). General Statutes § 52-552b (12)
defines the term ‘‘ ‘[t]ransfer’ ’’ as ‘‘every mode, direct
or indirect, absolute or conditional, voluntary or invol-
untary, of disposing of or parting with an asset or an
interest in an asset, and includes payment of money,
release, lease and creation of a lien or other encum-
brance.’’
The record supports the court’s finding, by clear and
convincing evidence, that Son Singular transferred
assets—specifically, two excavators (subject excava-
tors)—to Sons Plural. First, the plaintiff testified, ‘‘very
credibl[y]’’ according to the court, that he saw the sub-
ject excavators in the possession of Son Singular in
2005, and subsequently in the possession of Sons Plural
in 2016. Second, 2012 federal tax return documents and
2012 state tax return documents admitted into evidence
as plaintiff’s exhibits 5 and 6, respectively, reflect, indi-
vidually or collectively, that (1) at the beginning of 2012,
Son Singular owned assets, including ‘‘heavy equip[-
ment]’’ placed into service in 2000, (2) Son Singular
discontinued its business on July 1, 2012, and (3) Son
Singular owned no assets by the end of 2012. Branca
testified that the 2012 federal tax return documents
‘‘[tell] an educated reader that [Son Singular’s assets
were] transferred at book value’’ to ‘‘[s]omebody or
some other entity’’ in 2012. We conclude that this cumu-
lative evidence, which the defendants elected not to
rebut, supports the court’s finding that Son Singular
transferred the subject excavators to Sons Plural.
We construe the court’s memorandum of decision as
finding that the subject excavators were the only assets
transferred between the defendants, notwithstanding
that the plaintiff had alleged in the second revised com-
plaint that ‘‘all assets of [Son Singular] were transferred
to [Sons Plural].’’ In awarding the plaintiff relief under
CUFTA, the court specifically identified the ‘‘subject
excavators,’’ among other unspecified property, as
being subject to its order of relief. In the event that the
court had found that Son Singular had transferred any
other assets to Sons Plural, the record would not sup-
port such a finding. Our careful review of the record
reveals that the subject excavators were the only assets
shown by the plaintiff to have been transferred by Son
Singular to Sons Plural. On the basis of the evidence
in the record, a finding that any other assets were trans-
ferred by Son Singular to Sons Plural would be based
on assumption and speculation.
1
Having concluded that the court properly found that
a transfer of the subject excavators had occurred
between Son Singular and Sons Plural, we next address
the defendants’ contention that the court improperly
determined that the plaintiff established, by clear and
convincing evidence, that the transfer was fraudulent
under § 52-552e (a) (1).22 Specifically, the defendants
assert that the plaintiff did not produce sufficient evi-
dence of Son Singular having transferred any assets to
Sons Plural with an actual intent to hinder, delay, or
defraud the plaintiff. We are not persuaded.
Section 52-552e (a) provides in relevant part: ‘‘A trans-
fer made or obligation incurred by a debtor is fraudulent
as to a creditor, if the creditor’s claim arose before the
transfer was made or the obligation was incurred and
if the debtor made the transfer or incurred the obliga-
tion: (1) With actual intent to hinder, delay or defraud
any creditor of the debtor . . . .’’
‘‘With respect to finding actual intent as set forth in
§ 52-552e (a) (1), we have stated that, because fraudu-
lent intent is almost always . . . proven by circumstan-
tial evidence, courts may consider numerous factors in
determining whether a transfer was made with actual
intent to defraud.’’ (Internal quotation marks omitted.)
McKay v. Longman, 332 Conn. 394, 422, 211 A.3d 20(2019). Section 52-552e (b) provides that ‘‘[i]n determin-
ing actual intent under subdivision (1) of subsection
(a) of this section, consideration may be given, among
other factors, to whether: (1) The transfer or obligation
was to an insider, (2) the debtor retained possession
or control of the property transferred after the transfer,
(3) the transfer or obligation was disclosed or con-
cealed, (4) before the transfer was made or obligation
was incurred, the debtor had been sued or threatened
with suit, (5) the transfer was of substantially all the
debtor’s assets, (6) the debtor absconded, (7) the debtor
removed or concealed assets, (8) the value of the con-
sideration received by the debtor was reasonably equiv-
alent to the value of the asset transferred or the amount
of the obligation incurred, (9) the debtor was insolvent
or became insolvent shortly after the transfer was made
or the obligation was incurred, (10) the transfer
occurred shortly before or shortly after a substantial
debt was incurred, and (11) the debtor transferred the
essential assets of the business to a lienor who trans-
ferred the assets to an insider of the debtor.’’
In determining that the defendants had violated § 52-
552e (a) (1), the court found that the transfer between
Son Singular and Sons Plural met a number of the indi-
cia of fraud set forth in § 52-552e (b), including that Son
Singular was sued and the 2012 judgment was rendered
before the transfer had been made, and that Son Singu-
lar, which the court found had ceased its business
shortly following the 2012 judgment, was insolvent or
became insolvent shortly following the transfer. The
court also found that the formation of Sons Plural fol-
lowing the rendering of the 2012 judgment ‘‘increased
the difficulty facing [the plaintiff] in efforts to collect
on the judgment.’’ These particular findings are sup-
ported by the record and are sufficient to uphold the
court’s determination that the transfer was made with
an actual intent to hinder, delay, or defraud the plain-
tiff.23 Accordingly, we reject the defendants’ claim that
the court improperly determined that the plaintiff sus-
tained his burden to demonstrate that the defendants
had committed a fraudulent transfer under § 52-552e
(a) (1).
2
The defendants also contend that the court improp-
erly determined that the plaintiff established, by clear
and convincing evidence, that the defendants had com-
mitted a fraudulent transfer under § 52-552f (a). More
specifically, the defendants assert that the plaintiff did
not produce sufficient evidence that (1) Son Singular
had transferred assets to Sons Plural for a reasonably
equivalent value and (2) Son Singular was insolvent at
the time of the transfer or became insolvent as a result
thereof. We agree with the defendants’ latter argument.
Section 52-552f (a) provides: ‘‘A transfer made or
obligation incurred by a debtor is fraudulent as to a
creditor whose claim arose before the transfer was
made or the obligation was incurred if the debtor made
the transfer or incurred the obligation without receiving
a reasonably equivalent value in exchange for the trans-
fer or obligation and the debtor was insolvent at that
time or the debtor became insolvent as a result of the
transfer or obligation.’’
In determining that the plaintiff satisfied his burden
of proof with respect to his § 52-552f (a) claim, the
court found that, following the transfer of the subject
excavators, Son Singular was left without assets and
ceased doing business. Although there is evidence in
the record demonstrating that Son Singular became
insolvent by the end of 2012, sometime following the
transfer, there is no evidence reflecting the date of the
transfer. Thus, it cannot be determined whether Son
Singular was insolvent at the time of the transfer. Addi-
tionally, there is insufficient evidence to make a finding
as to whether the transfer of the subject excavators,
itself, resulted in Son Singular becoming insolvent.
Accordingly, we conclude that the court erred in
determining that the defendants had committed a fraud-
ulent transfer in violation of § 52-552f (a).24
We pause to note that our conclusion that the court
erroneously determined that the defendants had com-
mitted a fraudulent transfer in violation of § 52-552f (a)
has no bearing on the relief that the court awarded
to the plaintiff under CUFTA, which we subsequently
address in part III B of this opinion. As we concluded
in part III A 1 of this opinion, the court properly found
that the defendants had committed a fraudulent transfer
in violation of § 52-552e (a) (1). Section 52-552e (a) (1)
is a distinct, independent basis for fraudulent transfer
liability. See Geriatrics, Inc. v. McGee, supra, 332 Conn.
33 (D’Auria, J., concurring in part and dissenting in
part) (explaining that § 52-552e (a) (1) is one of four
distinct bases for fraudulent transfer liability under
CUFTA). There is nothing in the record to suggest that
the relief awarded by the court under CUFTA was
dependent on the plaintiff proving the defendants’ liabil-
ity under both §§ 52-552e (a) (1) and 52-552f (a). Accord-
ingly, the failure of the plaintiff’s § 52-552f (a) claim
does not affect the relief awarded by the court under
CUFTA.
B
We now turn to the defendants’ claims that the court
committed error in awarding relief to the plaintiff under
CUFTA. More particularly, the defendants contend that
the court improperly (1) granted the plaintiff a provi-
sional order of attachment that was vague and over-
broad and (2) awarded damages under § 52-552h with-
out finding the value of the assets transferred in
accordance with General Statutes § 52-552i (b). We
agree, in part, with the defendants.
Our review of the defendants’ claim requires us to
construe §§ 52-552h and 52-552i (b), as well as the
court’s order of relief, which present questions of law
over which we exercise plenary review. See Alpha Beta
Capital Partners, L.P. v. Pursuit Investment Manage-
ment, LLC, 193 Conn. App. 381, 428, 219 A.3d 801 (2019)
(‘‘The interpretation of a trial court’s judgment presents
a question of law over which our review is plenary.
. . . As a general rule, judgments are to be construed
in the same fashion as other written instruments. . . .
The determinative factor is the intention of the court
as gathered from all parts of the judgment. . . . Effect
must be given to that which is clearly implied as well
as to that which is expressed. . . . The judgment
should admit of a consistent construction as a whole.’’
(Internal quotation marks omitted.)), cert. denied, 334
Conn. 911, 221 A.3d 446 (2020), and cert. denied, 334
Conn. 911, 221 A.3d 446 (2020); Village Apartments,
LLC v. Ward, 169 Conn. App. 653, 664, 152 A.3d 76(2016) (‘‘[t]he interpretation of a statute, as well as its
applicability to a given set of facts and circumstances,
presents a question of law over which our review is
plenary’’ (internal quotation marks omitted)), cert.
denied, 324 Conn. 918, 154 A.3d 1008 (2017).
At the outset, we discuss the scope of the relief
awarded by the court. With regard to CUFTA, the court
entered the following order: ‘‘Pursuant to . . . § 52-
552h, the court orders that [the plaintiff] may, in accor-
dance with the provisions of that statute, seek an attach-
ment in the amount of the [2012 judgment] plus interest
at 6 percent per annum against the subject excavators
or other equipment of the defendants, and the defen-
dants are hereby enjoined from transferring that equip-
ment or any other construction . . . equipment.’’ With
regard to CUTPA, the court awarded the plaintiff
$18,388 in attorney’s fees, for which the defendants
were jointly and severally liable.
The parties’ briefs and/or their statements at oral
argument suggest that they are under the impression
that the court awarded the plaintiff damages in the sum
of the 2012 judgment, plus interest. That belief is belied
by the record. The relief that the court granted was
limited to (1) relief under § 52-552h for the defendants’
violation of CUFTA in the form of (a) an attachment
of the defendants’ property in the sum of the 2012 judg-
ment, plus interest, and (b) an injunction preventing
the transfer of the property, and (2) attorney’s fees for
the defendants’ violation of CUTPA. The court did not
afford any other relief to the plaintiff.
1
The defendants contend that the relief awarded to
the plaintiff under CUFTA was improper because it was
(1) provisional in nature and (2) both vague in failing
to identify the specific property it encompassed and
overbroad in authorizing the attachment of property
that was not subject to this action. We agree with the
defendants that the relief awarded was overbroad, but
we otherwise reject their assertions.
Our Supreme Court has explained that the policy
underlying CUFTA is ‘‘protecting unsecured creditors
from debtors who place assets beyond the reach of
their unsecured creditors . . . .’’ Geriatrics, Inc. v.
McGee, supra, 332 Conn. 15. Section 52-552h, pursuant
to which the court granted the plaintiff relief, sets forth
a variety of remedies that a creditor may obtain in a
fraudulent transfer action brought under CUFTA. Sec-
tion 52-552h provides: ‘‘(a) In an action for relief against
a transfer or obligation under sections 52-552a to 52-
552l, inclusive, a creditor, subject to the limitations in
section 52-552i, may obtain: (1) Avoidance of the trans-
fer or obligation to the extent necessary to satisfy the
creditor’s claim; (2) an attachment or other provisional
remedy against the asset transferred or other property
of the transferee in accordance with the procedure pre-
scribed by chapter 903a;25 (3) subject to applicable prin-
ciples of equity and in accordance with applicable rules
of civil procedure (A) an injunction against further dis-
position by the debtor or a transferee, or both, of the
asset transferred or of other property, (B) appointment
of a receiver to take charge of the asset transferred or
of other property of the transferee, or (C) any other
relief the circumstances may require.
‘‘(b) If a creditor has obtained a judgment on a claim
against the debtor, the creditor, if the court so orders,
may levy execution on the asset transferred or its pro-
ceeds.’’ (Footnote added.)
The defendants assert that the court’s order permit-
ting the plaintiff to attach their property constituted
improper ‘‘provisional’’ relief under CUFTA. We dis-
agree with that construction. Although § 52-552h (a) (2)
provides that a creditor may obtain an attachment as
a provisional remedy, in addition to ‘‘other provisional’’
relief as provided by the statute, § 52-552h (a) (3) (C)
enables a trial court to award ‘‘any other relief the
circumstances may require,’’ and § 52-552h (b) permits
a court to allow a creditor who has ‘‘obtained a judg-
ment on a claim against the debtor,’’ as the plaintiff
had in the present case, to ‘‘levy execution on the asset
transferred or its proceeds.’’ Read logically, the court’s
order of relief allows the plaintiff to attach the defen-
dants’ property and levy execution thereon. Such relief
is well within the court’s authority to grant under § 52-
552h after finding liability for a fraudulent transfer.
We agree with the defendants, however, insofar as
they claim that the relief granted by the court is over-
broad because it applies to ‘‘other’’ property beyond
the subject excavators, which were the only assets that
were properly found, on this record, to have been fraud-
ulently transferred from Son Singular to Sons Plural.
Although we recognize that a creditor’s remedies under
CUFTA are not limited to the assets fraudulently trans-
ferred and proceeds derived therefrom; see Robinson
v. Coughlin, 266 Conn. 1, 8–9, 830 A.2d 1114 (2003);
there is nothing in the record to support the court’s
awarding relief to the plaintiff under CUFTA as to prop-
erty other than the subject excavators, which, on the
basis of the record, remain in the possession of Sons
Plural.
In sum, we find no error in the court’s ordering,
pursuant to § 52-552h, that the plaintiff may attach the
subject excavators in the sum of the 2012 judgment,
plus interest, and that the defendants are enjoined from
transferring the subject excavators, but we conclude
that the court erred in encompassing any other property
within its order of relief under CUFTA.
2
The defendants also contend that the court’s order
of relief under CUFTA is improper because the court
failed to determine the value of the assets transferred
pursuant to § 52-552i (b). More particularly, the defen-
dants assert that the court awarded the plaintiff ‘‘a
measure of damages’’ under § 52-552h, which obligated
the court to make a finding of value in accordance with
§ 52-552i (b). We disagree.
Section 52-552i (b) provides: ‘‘Except as otherwise
provided in this section, to the extent a transfer is void-
able in an action by a creditor under subdivision (1)
of subsection (a) of section 52-552h, the creditor may
recover judgment for the value of the asset transferred,
as adjusted under subsection (d) of this section, or
the amount necessary to satisfy the creditor’s claim,
whichever is less. The judgment may be entered against:
(1) The first transferee of the asset or the person for
whose benefit the transfer was made, or (2) any subse-
quent transferee other than a good-faith transferee who
took for value or from any subsequent transferee.’’
By its plain terms, § 52-552i (b) bestows upon a trial
court the discretion to award, as damages against the
appropriate party, the lesser of the value of the asset
transferred and the amount necessary to satisfy the
creditor’s claim. See Stuart v. Stuart, 112 Conn. App.
160, 179–80, 962 A.2d 842 (2009) (‘‘[u]nder . . . § 52-
552i (b), the [trial] court can award the value of the
asset transferred as damages’’ (emphasis added; foot-
note omitted)), rev’d on other grounds, 297 Conn. 26,
996 A.2d 259 (2010). As we explained earlier in this
opinion, the court did not award damages under
CUFTA. The only monetary sum awarded by the court
was in the form of attorney’s fees under CUTPA, which
had no bearing on the relief afforded by the court under
CUFTA. Accordingly, the defendants’ reliance on § 52-
552i (b) is misplaced.
IV
The defendants’ remaining claim is that the trial court
erred in rendering judgment in favor of the plaintiff on
count three of his second revised complaint sounding
in a violation of CUTPA. This claim is unavailing.
‘‘CUTPA provides that [n]o person shall engage in
unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or com-
merce. . . . It is well settled that whether a defendant’s
acts constitute . . . deceptive or unfair trade practices
under CUTPA, is a question of fact for the trier, to
which, on appellate review, we accord our customary
deference.’’ (Citation omitted; internal quotation marks
omitted.) Pedrini v. Kiltonic, 170 Conn. App. 343, 353,
154 A.3d 1037, cert. denied, 325 Conn. 903, 155 A.3d
1270 (2017).
In denying the defendants’ motion to dismiss as to
the plaintiff’s CUTPA claim, the court stated that, ‘‘[i]n
the third count of his [second revised] complaint, [the
plaintiff] allege[s] that the fraudulent transfers alleged
in the first two counts of his [second revised] complaint
[constitute] violations of [CUTPA] . . . . The court
finds the evidence supporting the claims of fraudulent
transfer support as well a prima facie case that the
defendants also violated CUTPA . . . .’’ In rendering
judgment in favor of the plaintiff on his CUTPA claim,
the court stated that it ‘‘adheres to its earlier decision
that there was prima facie evidence that the defendants
violated CUTPA, and in the absence of any countervail-
ing evidence, [the court] finds that the plaintiff has
proved that they engaged in ‘unfair and deceptive acts
or practices in the conduct of any trade or commence.’
General Statutes § 42-110b (a).’’
The crux of the defendants’ contention is that the
success of the plaintiff’s CUTPA claim was predicated
on the court finding that the defendants had committed
a fraudulent transfer, and, therefore, the CUTPA claim
must fail if we conclude that the court incorrectly deter-
mined that the defendants had committed a fraudulent
transfer. As we concluded in part III A 1 of this opinion,
the court properly determined that the defendants had
engaged in a fraudulent transfer in violation of § 52-
552e (a) (1). Accordingly, we reject the defendants’
assertion that the court committed error in rendering
judgment in the plaintiff’s favor on his CUTPA claim.
The original appeal is dismissed for lack of a final
judgment; as to the amended appeal, the judgment is
reversed only with respect to the plaintiff’s motion to
amend, the second count of the plaintiff’s second
revised complaint, and the order of relief entered under
§ 52-552h insofar as it encompassed property other than
the subject excavators, and the case is remanded with
direction to deny the plaintiff’s motion to amend, to
render judgment in favor of the defendants on count
two of the plaintiff’s second revised complaint, and to
vacate the portion of the relief awarded under § 52-
552h regarding property other than the subject excava-
tors; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
As the record makes apparent, confusion may arise when discerning
Katchko & Son Construction Services, Inc., from Katchko & Sons Construc-
tion Services, Inc. For purposes of clarity, we refer to Katchko & Son
Construction Services, Inc., as Son Singular, to Katchko & Sons Construction
Services, Inc., as Sons Plural, and to both corporate entities collectively as
the defendants.
2
In their principal appellate brief, the defendants also claim that the trial
court improperly denied a motion filed by them seeking a judgment of
dismissal pursuant to Practice Book § 15-8. On March 12, 2020, we ordered
the parties to be prepared to address at oral argument ‘‘ ‘the effect, if any,
of Moutinho v. 500 North Avenue, LLC, 191 Conn. App. 608, 614, cert.
denied, 333 Conn. 928, (2019), on the defendants’ claim that the trial court
erred in denying their motion to dismiss for failure to make out a prima
facie case pursuant to Practice Book § 15-8.’ ’’ During oral argument, the
defendants’ counsel withdrew the claim challenging the denial of the defen-
dants’ motion to dismiss.
3
Katchko Construction Services, Inc., was not a separate and distinct
entity from Son Singular; rather, the certificate of amendment filed on
February 7, 2011, changed the name of Katchko Construction Services, Inc.,
to Son Singular. In an effort to avoid confusion, unless otherwise necessary,
we hereinafter refer to Son Singular when discussing events that the record
attributes to Katchko Construction Services, Inc.
4
Practice Book § 15-8 provides: ‘‘If, on the trial of any issue of fact in a
civil matter tried to the court, the plaintiff has produced evidence and rested,
a defendant may move for judgment of dismissal, and the judicial authority
may grant such motion if the plaintiff has failed to make out a prima facie
case. The defendant may offer evidence in the event the motion is not
granted, without having reserved the right to do so and to the same extent
as if the motion had not been made.’’
5
The defendants filed their posttrial brief on September 14, 2018. The
plaintiff filed his posttrial brief on April 19, 2018, which he also utilized as
a response to the defendants’ motion to dismiss.
6
The denial of the defendants’ motion to dismiss is no longer at issue in
this appeal. See footnote 2 of this opinion.
7
Although the parties have not addressed on appeal whether the defen-
dants’ original appeal is subject to dismissal for lack of a final judgment,
the parties have briefed the finality of judgment issue in the context of the
defendants’ claim that the trial court abused its discretion in granting the
plaintiff’s motion to amend.
8
General Statutes § 42-110g (a) provides: ‘‘Any person who suffers any
ascertainable loss of money or property, real or personal, as a result of the
use or employment of a method, act or practice prohibited by section 42-
110b, may bring an action in the judicial district in which the plaintiff or
defendant resides or has his principal place of business or is doing business,
to recover actual damages. Proof of public interest or public injury shall
not be required in any action brought under this section. The court may,
in its discretion, award punitive damages and may provide such equitable
relief as it deems necessary or proper.’’ (Emphasis added.)
9
In his posttrial brief, the plaintiff stated that he was ‘‘entitled to punitive
damages under [CUTPA] at least in the amount of his total attorney’s fees.
A [h]earing should be scheduled by the court in order to determine the total
amount of [the] plaintiff’s attorney’s fees and costs in order to arrive at
punitive damages . . . and attorney’s fees . . . .’’ We do not construe the
plaintiff’s statements to mean that, if awarded the total amount of attorney’s
fees requested by him, he was not seeking any additional sum in punitive
damages.
10
General Statutes § 42-110g (d) provides in relevant part: ‘‘In any action
brought by a person under this section, the court may award, to the plaintiff,
in addition to the relief provided in this section, costs and reasonable attor-
neys’ fees based on the work reasonably performed by an attorney and not
on the amount of recovery. . . .’’
11
On January 23, 2019, the plaintiff cross appealed from the denial of his
motion for punitive damages, but he later withdrew the cross appeal.
12
The second revised complaint, as well as the amended complaint filed
by the plaintiff in conjunction with his motion to amend, alleged that the
2012 judgment was rendered against Sons Plural. As the trial court noted
in its order granting the plaintiff’s motion to amend, the plaintiff’s reference
to Sons Plural appears to have been made in error.
13
On January 24, 2019, the defendants filed a motion requesting that the
trial court articulate its decision granting the plaintiff’s motion to amend.
On February 22, 2019, the court issued an articulation.
14
We presume that the court was referring to Robert Katchko here as
‘‘the defendant.’’
15
Additionally, the defendants claim that the court’s granting of the plain-
tiff’s motion to amend violated the automatic appellate stay created in
connection with their original appeal pursuant to Practice Book § 61-11. As
we concluded in part I of this opinion, the defendants’ original appeal was
not taken from a final judgment. Accordingly, no automatic appellate stay
was in effect following the filing of the original appeal. See Cunniffe v.
Cunniffe, 150 Conn. App. 419, 430, 91 A.3d 497 (holding ‘‘definitively that
no enforceable appellate stay of execution results from the filing of a jurisdic-
tionally infirm appeal’’), cert. denied, 314 Conn. 935, 102 A.3d 1112 (2014).
16
In Burton, following the filing of the defendant’s appeal, the trial court
vacated its order granting a new trial and directed a verdict in the defendant’s
favor for lack of sufficient evidence. Burton v. Stamford, supra, 115 Conn.
App. 53–54. The plaintiff filed a separate appeal from that judgment, which
was consolidated with the defendant’s appeal. Id., 54. On appeal, this court
held that the defendant’s appeal was not moot notwithstanding the court’s
having vacated its order for a new trial. Id., 56–57.
17
This court also addressed, and rejected, the defendant’s claim that the
plaintiff had improperly failed to file a written motion to amend. Burton v.
Stamford, supra, 115 Conn. App. 59–60.
18
Our determination in part I of this opinion that the November 8, 2018
judgment was not a final judgment until the court had denied the plaintiff’s
motion for punitive damages does not alter our analysis. The November 8,
2018 judgment adjudicated the defendants’ liability under each count raised
in the plaintiff’s second revised complaint. The finality of the November 8,
2018 judgment for purposes of an appeal has no bearing on that fact.
We also observe that, following the granting of the plaintiff’s motion to
amend, none of the parties took any action with respect to the amended
complaint and no judgment was ever rendered thereon. This further bolsters
our determination that no special circumstances were present to justify
the granting of the amendment, as, ostensibly, the amendment was not
considered to be necessary to vindicate the plaintiff’s claims for relief.
19
Our reversal of the court’s decision to grant the motion to amend does
not affect the defendants’ remaining claims on appeal challenging the judg-
ment rendered on the plaintiff’s second revised complaint, as no judgment
was ever rendered on the amended complaint.
20
In his appellate brief, the plaintiff argues that ‘‘[a]ny of the remedies
ordered by the trial court are properly supported by a finding of successor
liability or CUTPA. Thus, if either successor liability or CUTPA [is] affirmed,
a further analysis of the technical niceties of the fraudulent conveyance
statutes could have no practical effect on the outcome of the appeal.’’ This
argument is unavailing because (1) none of the relief awarded by the court
was actually predicated on a finding of successor liability and (2) the relief
granted by the court under CUTPA was limited to attorney’s fees. See part
III B of this opinion.
21
In addition to requiring evidence of a transfer, both §§ 52-552e (a) (1)
and 52-552f (a) require proof that a creditor had a claim that arose prior
to the transfer. See General Statutes §§ 52-552e (a) and 52-552f (a). The
defendants do not raise any cognizable claim on appeal challenging the
court’s finding that the transfer between Son Singular and Sons Plural
occurred after the 2012 judgment had been rendered. Nevertheless, we note
that there is uncontroverted evidence in the record demonstrating that Sons
Plural was formed on August 6, 2012, several months following the 2012
judgment rendered on April 17, 2012. It necessarily follows that the 2012
judgment debt arose prior to any transfer between Son Singular and Sons
Plural.
22
The defendants also assert that the plaintiff failed to demonstrate that
they had committed a fraudulent transfer under § 52-552e (a) (2), which
requires a showing that a debtor made a transfer or incurred an obligation
‘‘without receiving a reasonably equivalent value in exchange for the transfer
or obligation, and the debtor (A) was engaged or was about to engage in a
business or a transaction for which the remaining assets of the debtor were
unreasonably small in relation to the business or transaction, or (B) intended
to incur, or believed or reasonably should have believed that he would incur,
debts beyond his ability to pay as they became due.’’ General Statutes § 52-
552e (a) (2). Pursuant to § 52-552e, a fraudulent transfer may be established
by demonstrating a violation of either § 52-552e (a) (1) or § 52-552e (a)
(2). See General Statutes § 52-552e (a). In the present case, the trial court
determined that the defendants had violated § 52-552e (a) (1), but it did not
consider whether they had also violated § 52-552e (a) (2). Accordingly, we
limit our analysis to the defendants’ claim regarding § 52-552e (a) (1).
23
The defendants do not substantively address each of the factors of fraud
identified by the trial court under § 52-552e (b); instead, they thinly claim
that there was insufficient evidence to support any of the factors.
24
To establish a fraudulent transfer under § 52-552f (a), a creditor must
demonstrate conjunctively that the debtor did not receive reasonably equiva-
lent value in exchange for the transfer and that the debtor was insolvent
at the time of the transfer or became insolvent as a result thereof. Because
we conclude that the plaintiff did not submit sufficient evidence to demon-
strate that Son Singular was insolvent at the time of the transfer or became
insolvent as a result thereof, we need not consider whether the plaintiff
also met his burden to prove that Son Singular received reasonably equiva-
lent value in exchange for the transfer.
25
General Statutes § 52-278a et seq.