Lussier v. Christman, No. 50 11 81 (Oct. 7, 1994)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE THIRD, FOURTH, FIFTH AND SIXTH COUNTS OFSECOND AMENDED COMPLAINT OF MARCH 28, 1994 I. Re Third Count

The third count seeks payment of dividends previously declared by Energy Maintenance Corporation (EMC) and Energy Service, Inc. (ESI).

A. As to ESI

The claim against ESI is based on (1) fraud; (2) that the two corporations were consolidated or merged; and (3) that ESI is a "continuation and reincarnation of EMC". Plaintiff has not sustained his burden of proof as to any of those claims.

B. As to EMC and ESI

The plaintiff has failed to sustain his burden of proof in regard to the alleged bonuses and profits being dividends. He has also not proven that any dividends were declared and not paid by EMC.

Plaintiff has also failed to prove that either company was in a financial position to pay dividends. CGS § 33-356(a) and (b). (Also see C.G.S. § 33-357 re distributions.)

II. Re Fourth Count

This count seeks the declaration of dividends by EMC and ESI.

The court makes the same finding as to this fourth count CT Page 10388 as it made in regard to the third count. If a corporation may not pay a dividend it may not declare a dividend. C.G.S. § 33-356(a) and (b).

III. Re Fifth Count

In this count plaintiff seeks to set aside certain claimed "conveyances" as fraudulent under C.G.S. § 52-552. That statute was repealed by PA. 91-297 Sec. 13 effective October 1, 1991. C.G.S. § 2-32. This action was begun September 9, 1991.

The court's findings for the third count are incorporated herein.

Fraud, of course, requires proof by clear and convincing evidence. Beckenstein v. Potter and Carrier, Inc., 191 Conn. 150,153. Plaintiff has failed to sustain his burden of proof even by a preponderance of the evidence.

IV. Re Sixth Count

In this count plaintiff seeks an order for an appraisal of his interest in the two corporations.

The court's findings above are incorporated herein as relevant.

The court finds that plaintiff also has failed to sustain his burden of proof in regard to the allegations in paragraphs 21a.; 22; 23.

Judgment for defendants on all four counts.

N. O'Neill, J.