author: ALVORD, J.

text:
    ROBERT GOUGH v. SAINT PETER’S EPISCOPAL CHURCH ET AL.
    (AC 34836)
    Robinson, Alvord and Peters, Js.

      Argued March 12
    officially released July 2, 2013

      Vincent M. DeAngelo, with whom, on the brief, was M. Hatcher Norris, for the appellant (plaintiff.

      Jamie M. Landry, with whom was Bradford S. Babbitt, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Robert Gough, appeals from the summary judgment rendered by the trial court in favor of the defendants, Saint Peter’s Episcopal Church of South Windsor, Connecticut (St. Peter’s) and the Episcopal Diocese of Connecticut (diocese), on his claims of negligence and breach of fiduciary duty. On appeal, the plaintiff claims that the court improperly concluded that there were no genuine issues of material fact as to whether the defendants owed the plaintiff a duty because they knew or should have known that Bruce Jacques, a priest employed by the defendants, had or would sexually abuse members of St. Peter’s. We affirm the judgment of the court.

The record reveals the following uncontested facts. St. Peter’s is an ecclesiastical society that is a member of the diocese. Jacques was an ordained priest in the Protestant Episcopal Church (church), and he was employed as a priest at St. Peter’s from September 19, 1976 to September 9, 1984.

The plaintiffs operative complaint, which was filed on June 9, 2011, alleges the following. The plaintiff served as an acolyte at St. Peter’s from 1976 to 1983, beginning when he was twelve years old. During the spring of 1977, the plaintiff was alone at St. Peter’s performing his acolyte duties when he was approached by Jacques. Jacques invited the plaintiff into the priest’s office and told the plaintiff that he was conducting research about how children physically mature. He told the plaintiff that other acolytes at St. Peter’s were participating in the research and asked the plaintiff if he would participate. When the plaintiff agreed, Jacques proceeded to ask the plaintiff sexually related questions, stroke the plaintiffs penis and perform oral sex on the plaintiff (incident). Afterward, Jacques told the plaintiff that he could not tell anyone about what had occurred or else the plaintiff would be removed from the acolyte guild and barred from returning to St. Peter’s. Subsequently, Jacques made two similar advances toward the plaintiff, but the plaintiff avoided further sexual encounters by telling Jacques that he was not feeling well and declining to participate in Jacques’ research. As to these allegations, the defendants’ answers provide that both St. Peter’s and the diocese lacked sufficient information to form a belief as to their truth and, therefore, left the plaintiff to his proof.

The operative complaint contains four counts: (1) negligence as to St. Peter’s; (2) negligence as to the diocese; (3) breach of fiduciary duty as to St. Peter’s; and (4) breach of fiduciary duty as to the diocese. The defendants’ answers advanced special defenses, including that neither St. Peter’s nor the diocese possessed knowledge that would give rise to a duty owed to the plaintiff. On November 30, 2011, the defendants filed a motion for summary judgment, arguing, inter alia, that the plaintiff could not prevail on his negligence or breach of fiduciary duty causes of action because he could not prove that the defendants knew or should have known that Jacques had or would abuse members of St. Peter’s.

In support of their motion for summary judgment, the defendants provided the court with the following materials. Attached to an affidavit of the secretary for the diocese, John W. Spaeth III, the defendants submitted exhibits that were made in the ordinary course of the procedure by which one became an ordained priest in the church. The exhibits included letters recommending Jacques’ application to become a seminary student; a certificate providing that Jacques possessed the moral character to become a deacon signed by the majority of the members of the vestry at St. Peter’s Episcopal Church in Cheshire, Connecticut (St. Peter’s-Cheshire), the church that Jacques attended prior to becoming ordained; letters from the rector of the Christ Church and a bishop of Connecticut recommending that Jacques be ordained; and the testimonials of the standing committee for ordination to the priesthood and the standing committee of the diocese recommending Jacques for ordination to the priesthood. The exhibits also included a document titled “notice of sentence of deposition,” dated September, 1997, which evidenced Jacques’ punishment for two separate violations of the canons of the church, neither of which directly relate to the alleged incident between Jacques and the plaintiff.

The defendants also provided the court with the affidavit of Jacques’ former wife, Martha Sue Jacques, who averred, inter alia, the following. Martha Sue Jacques has known Jacques since she was thirteen years old, when they both were parishioners at St. Peter’s-Cheshire. They married in 1972, and after Jacques was ordained a deacon, he accepted a position at Trinity Episcopal Church in Torrington (Trinity). From 1974 until 1976, Jacques worked at Saint Mary’s Episcopal Church in Manchester (St. Mary’s); from 1976 until 1984, Jacques worked at St. Peter’s; and from 1984 until 1995, Jacques worked at St. John’s Episcopal Church in New Milford (St. John’s). While at St. Peter’s and Trinity, Jacques led groups of teenaged members of the church and chaperoned young church members on activities and trips. During that time, Martha Sue Jacques observed Jacques’ interactions and spoke with parishioners at both St. Peter’s and Trinity, and at no time did any person tell, suggest, intimate or hint to her of—nor did she witness—any behavior suggesting that Jacques had acted or might act inappropriately in any manner, sexually or otherwise, toward any member of the parish or any other person.

The defendants provided eleven additional affidavits from longtime friends of Jacques, fellow clergy who worked alongside Jacques, lay members of the church who served on the vestry or worked with Jacques overseeing the acolyte guild, and members of the calling committee that hired Jacques at St. Peter’s. These eleven people, who knew Jacques during his years at Trinity, St. Mary’s, St. Peter’s and St. John’s, averred much the same as did Martha Sue Jacques—they never witnessed or heard anything suggesting that Jacques might act or had acted inappropriately in any manner, sexual or otherwise, toward any person.

The defendants also provided the court with affidavits of three bishops within the diocese, who averred as to the church’s policies at the time of the incident. The Right Reverend Morgan Porteus averred that, in considering the ordination of a priest, the church required that the candidate undergo two psychiatric examinations and an examination by a ministry commission composed of both lay and ordained members of the church, that a standing commission of the diocese had to be satisfied that the candidate had “lived a sober, honest and godly life,” and that members of the candidate’s home parish—including that parish’s rector— had to attest to the candidate’s moral character. One of the proposes for this thorough process, Porteus averred, was to ensure that the candidate would not pose a threat to members of the church. The Right Reverend Arthur E. Walmsley averred that, pursuant to church policy, any suspected abuse by a member of the clergy was to be promptly reported to the bishop, and that the church does not discourage either the dissemination of information regarding sexual misconduct of priests with minors or compliance with the law requiring such disclosure. The Right Reverend Ian T. Douglas averred that the church had “strong policies in place that prohibited members of the clergy from engaging in any form of abuse of others, including but not limited to sexual abuse of members of the church.” Further, Douglas averred that this policy would have been known to anyone seeking to become ordained, as it was central to the aforementioned process of ordination and it was part of the bishop’s charge of ordination given to a new priest.

In support of their motion for summary judgment, the defendants also submitted excerpts from the deposition testimony of the plaintiff and Shirley Hallin Zeidler. The plaintiff testified that he was sexually abused by Jacques in the spring of 1977 and that he did not tell anyone about the incident until 2000. Further, he testified that allegations of this nature against Jacques did not become public knowledge until 1996, and that he did not believe that anyone at St. Peter’s knew that Jacques sexually abused him or anyone else at any time. Zeidler testified that she and her husband became friends with Jacques and his wife while at St. Mary’s, and that she and her husband worked with Jacques as advisors and chaperones for the acolyte guild. Further, she testified that after the allegations of sexual abuse against Jacques became public in 1995, Zeidler, her husband and Martha Sue Jacques searched through their collective memories for any indications of Jacques’ sexually abusive nature, but they could not remember Jacques presenting any warning signs.

On March 6, 2012, the plaintiff filed an opposition to the defendants’ motion for summary judgment. Attached thereto, the plaintiff submitted as exhibits further exceipts from his deposition testimony, his own affidavit, and further excerpts from Zeidler’s deposition testimony. The plaintiffs testimony and affidavit provided details about the circumstances surrounding the incident, including that the plaintiff was fearful of telling anyone about the incident because of Jacques’ threat, that the plaintiff did not tell his parents when they picked him up from St. Peter’s that day and that the plaintiff did not tell anyone about the incident for the next seventeen years. The testimony of Zeidler provided that, in 1976, she was not aware of any background checks that the church conducted on priests or the existence of “safe church” training, which exists in the church today and includes prohibiting priests from being alone with a child. She averred that, at the time of the incident, the diocese held conferences for youth group leaders, such as leaders of the acolyte guild, but she did not recall any directive by the diocese that priests should avoid one-on-one contact with children.

On July 5, 2012, the court granted the defendants’ motion for summary judgment. The court determined that the evidence presented by the plaintiff was sufficient to create an issue of fact as to whether the defendants had a fiduciary relationship with the plaintiff, but the court concluded that “the undisputed evidence establishes that those who knew Jacques before and during his service at St. Peter’s had no knowledge, no suspicion and no basis for any knowledge or suspicion that Jacques had abused or would abuse anyone. Thus, there is no genuine issue of material fact concerning whether the defendants should have anticipated the harm of the general nature of that suffered was likely to result. ... In other words, it was not reasonably foreseeable to the defendants that Jacques would abuse the plaintiff.” (Citation omitted; internal quotation marks omitted.) Thus, the court concluded that “[although] there may be a fiduciary relationship between the parties, absent a basis for knowing Jacques posed arisk of harm, neither St. Peter’s nor the [d]iocese violated any fiduciary duty to the plaintiff. . . . Therefore, summary judgment is granted for the defendants as to [all] counts . . . .” This appeal followed.

We begin our review of the summary judgment rendered by the trial court by setting forth our well established standard of review. “Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Tarro v. Mastriani Realty, LLC, 142 Conn. App. 419, 427, 69 A.3d 956 (2013).

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [Tjypically [demonstrating a genuine issue requires a showing of eviden-tiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact. . . . Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment.” (Citation omitted; internal quotation marks omitted.) Martin v. Westport, 108 Conn. App. 710, 721-22, 950 A.2d 19 (2008).

It is axiomatic that causes of action sounding in negligence or breach of a fiduciary duty require the existence of a duty owed by one party to another. See Biller Associates v. Peterken, 269 Conn. 716, 723, 849 A.2d 847 (2004) (“[a] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other” [emphasis in original; internal quotation marks omitted]); see also Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012) (“[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury” [internal quotation marks omitted]). “Contained within the . . . element [of] duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty. . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand. . . .

“Duty is a legal conclusion about relationships between individuals, made after the fact .... The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Citation omitted; internal quotation marks omitted.) Sic v. Nunan, supra, 307 Conn. 406-408.

The crux of the present appeal is whether the defendants owed a duty to the plaintiff. The dispositive question, therefore, is whether the specific harm alleged by the plaintiff was foreseeable to the defendants. The first inquiry in the two-pronged test for the existence of a legal duty requires determining whether an ordinary person in the defendants’ positions, knowing what the defendants knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result. In this case, that inquiry is whether St. Peter’s and the diocese knew or should have known that Jacques had or would abuse the plaintiff.

The plaintiff argues that the foreseeability of the harm to the plaintiff is evidenced by the church’s policies with regard to the welfare of its members. Specifically, the plaintiff directs this court to the averments of the three aforementioned bishops, which provided that those policies were implemented to ensure that clergy would not pose a threat of any kind to members of the church. The plaintiff argues that the fact that the church had, as Douglas averred, “strong policies in place that prohibited members of the clergy from engaging in any form of abuse of others, including but not limited to sexual abuse of members of the [c]hurch,” creates an issue of material fact as to the extent of the church’s knowledge of the possibility that harm would be caused by members of the clergy. He argues, “[i]f it is fore-seeably necessary to have in place a policy to prohibit members of the clergy from engaging in sexual abuse of members of the church, it is foreseeable that such might occur in the absence of supervision.” More broadly, he argues that it is foreseeable that some adults will abuse some children, and that therefore it was foreseeable that Jacques would abuse the plaintiff. In short, the plaintiff asks this court to adopt a literal foreseeability test, the result of which would be strict liability for harms occurring in situations where adults are supervising children.

As our Supreme Court has noted, “virtually all harms, in hindsight, are literally foreseeable.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 575, 717 A.2d 215 (1998). For this reason, our Supreme Court has rejected a literal foreseeability test. See id., 576-77 (“[T]he conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care. . . . Many harms are quite literally foreseeable . . . [but] liability attaches only for reasonably foreseeable consequences.” [Citations omitted; emphasis in original; internal quotation marks omitted.]). Thus, without any evidence indicating that it was reasonably foreseeable that Jacques would cause the type of harm that the church’s policies sought to prevent, the plaintiffs argument that the church’s policies created a duty owed to him by the defendants must fail.

The plaintiff did not submit any evidence to controvert the uncontested evidence provided by the defendants that no one who knew Jacques saw, heard or observed anything that alerted them that Jacques would harm anyone in any manner. Further, the plaintiff averred that he did not think that anyone at St. Peter’s was aware of the incident and that he did not disclose to anyone that the incident occurred until decades later. Without any specific facts that reasonably could give rise to an inference that the sexual abuse of the plaintiff was the foreseeable result of any act or omission by the defendants, the plaintiffs allegation that the defendants knew or should have known that Jacques had or would harm the plaintiff is unsupported. Thus, it cannot survive a motion for summary judgment. See Nutt v. Norwich Roman Catholic Diocese, 56 F. Supp. 2d 195, 201 (D. Conn. 1999); Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F. Supp. 110, 120 (D. Conn. 1997). We therefore conclude that the harm that Jacques inflicted on the plaintiff was not foreseeable and, accordingly, that the court correctly determined that there was no genuine issue of material fact as to whether the defendants owed the plaintiff a legal duty.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff averred that, “[a]s an acolyte, we assisted during church service, helped clean the church, helped clean the property, shared meals together, assisted in church fundraising efforts and took trips together, both out of state as well as day trips within the state of Connecticut.”

       The operative complaint provides that the incident occurred in either 1977 or 1978, and it does not provide that the plaintiff was serving in his capacity as an acolyte on the day of the incident. The subsequent affidavit and deposition testimony of the plaintiff provide these details, and the defendants do not contest these facts.

       Specifically, each of the four counts alleged that each defendant: (1) failed to use reasonable care to properly and adequately supervise the activities of Jacques at St. Peter’s in order to prevent the sexual battery of minors; (2) knew or reasonably should have known of Jacques’ inability to control his sexual impulses; (3) retained Jacques as a priest at St. Peter’s despite his exploitation of his position of trust with the acolytes; (4) failed to use reasonable care in evaluating Jacques as to his fitness to work with acolytes and young members of the church; (5) allowed Jacques to act as a priest when they knew or by reasonable care should have known that he had engaged in inappropriate conduct with the plaintiff and others; (6) failed to investigate the conduct of Jacques despite the fact that they knew or by reasonable care should have known that he engaged in inappropriate conduct with the plaintiff and others; (7) failed to both promulgate and enforce adequate policies to prevent clergy such as Jacques from engaging in inappropriate physical contact with parishioners such as the plaintiff; and (8) failed to establish, maintain and enforce a policy of reporting, investigating and removing priests engaged in sexual misconduct and instead adhered to a policy of discouraging the dissemination of information regarding the sexual misconduct of priests.

       Spaeth averred that the incident that gave rise to Jacques’ sentence of deposition was a 1995 complaint from a parishioner of St. John’s Church in New Milford, where Jacques was then employed, that Jacques had solicited sex from the complainant’s son.

       The affidavits were from: (1) a longtime friend and priest; (2) a reverend who ran an educational program and, in that capacity, met with Jacques weekly for nine months; (3) the rector at St. Mary’s from 1974 to 1984 who selected Jacques to serve as assistant rector at St. Mary’s; (4) an attorney who was an active parishioner at St. Mary’s, serving on the vestry and later as warden; (5) a parishioner at St. Mary’s from 1966 to 1987, who served on the vestry and later as warden; (6) a member of the church who worked with Jacques as a leader of the acolyte guild at both at St. Peter’s and St. Mary’s; (7 and 8) two members of the calling committee at St. Peter’s that hired Jacques to the position of vicar; (9 and 10) two active parishioners who knew Jacques when he worked at Trinity; and (11) an ordained bishop in the church who served as rector at St. Peter’s from 1944 to 1971.

       In addition, the plaintiff submitted excerpts from the deposition testimony of Martha Sue Jacques and the defendants’ responses to certain interrogatories.

       Because we determine that there is no legal duty based on our conclusion that the harm was not reasonably foreseeable, it is not necessary to analyze the second prong of the test by undertaking a public policy analysis. See Monk v. Temple George Associates, LLC, 273 Conn. 108, 114-15, 869 A.2d 179 (2005).


source: Caselaw Access Project

author: BEAE, J.

license: Public Domain

text:
    FREDRIK D. HOLTH, SUCCESSOR TRUSTEE, ET AL. v. CHELSEA GROTON BANK
    (AC 34346)
    Lavine, Robinson and Bear, Js.

      Argued April 17
    officially released July 2, 2013

      Dana M. Hrelic, with whom were Brendon P. Levesque and, on the brief, Karen L. Dowd and Thor Holth, for the appellants (plaintiffs).

      Stephen R. Klaffky, with whom, on the brief, was William M. Dolan III, for the appellee (defendant).
   Opinion

BEAE, J.

As alleged in the plaintiffs’ complaint, Frederick Kauppinen and Lillian Kauppinen established a total of nine revocable and spray trusts. The plaintiffs, Kathryn Guinan, successor trustee of eight of the Kaup-pinen trusts, and Kenneth Korsu and Heather Korsu, successor trustees of the Ilona Korsu Spray Trust, the ninth Kauppinen trust relevant to the present case (collectively, trusts), appeal from the judgment of the trial court, rendered in favor of the defendant, Chelsea Gro-ton Bank (bank), following the court’s granting of the defendant’s motion to strike the plaintiffs’ complaint in its entirety. On appeal, the plaintiffs claim that the court improperly struck their complaint after finding that the defendant owed to the plaintiffs no legal duty to investigate a trustee’s use of proceeds from a prior transaction before making its loan to the trusts. We affirm the judgment of the trial court.

The plaintiffs alleged the following relevant facts in their complaint. Prior to the appointment of the plaintiffs as successor trustees, F. Robert LaSaracina held himself out to the bank and to the public as the trustee of the trusts. In April, 2009, LaSaracina, acting as trustee for the trusts, applied to the bank for a $1,300,000 loan that was to be secured by a mortgage on real property and a Uniform Commercial Code (UCC) security interest in other property owned by the trusts. The alleged purpose of the loan was to refinance two secured $600,000 promissory notes that the trusts had given to Flushing Savings Bank, each of which was in default with a default interest rate of 24 percent. The total amount due on the loans was $1,294,797.85. LaSaracina represented to the bank that the purpose of the $1,300,000 loan was to refinance the trusts’ obligations to Flushing Savings Bank. The bank accepted LaSaraci-na’s loan application—which was accompanied only by copies of the trusts’ 1041 tax returns and the K-l tax forms issued to the beneficiaries for 2007 and 2008, and copies of two leases of trust property to commercial tenants—and it processed and approved the loan. The plaintiffs further alleged that if the bank carefully had reviewed LaSaracina’s loan application and other materials, it would have discovered that LaSaracina had used the proceeds from the Flushing Savings Bank loans for his own purposes and that he also was going to use the bank’s loan for his own purposes.

On the basis of these alleged facts, the plaintiffs filed a four count complaint against the bank. In the first count, they alleged that the bank was negligent in handling the loan transaction and that this negligence assisted LaSaracina in breaching his obligations to the trusts. In the second count, the plaintiffs alleged that the bank’s actions constituted a breach of the bank’s contract with the trusts that enabled LaSaracina to breach his fiduciary duties to the trusts. In the third count, the plaintiffs sought to quiet title to the mortgaged real estate by claiming that the bank’s mortgage was invalid due to the wrongful conduct of LaSaracina. In the final count, the plaintiffs alleged that any interest that the bank holds in the mortgaged real estate actually is held in constructive trust for the benefit of the trusts.

On July 21, 2011, the bank filed a motion to strike the complaint in its entirety on the ground that it owed to the trusts no legal duty to investigate LaSaracina before giving a loan to the trusts in exchange for a mortgage on real property and a security interest in other trust property. The bank further argued that the Fiduciary Powers Act, General Statutes § 45a-33 et seq., “unequivocally ‘discharges’ any lender extending a mortgage loan to a trustee from any liability arising from the trustee’s misappropriation of the loan proceeds, and expressly states that no lender shall have any duty to see to the application of the proceeds or any duty to ‘ascertain or inquire’ into the trustee’s puipose or authority for entering the transaction.” Additionally, the bank argued that the trusts’ “indentures similarly provide that any party transacting business with the trustees shall have no duty to inquire into or investigate the trustees’ authority and no duty to see to the application of the transaction proceeds.” In response, the plaintiffs argued that the relevant portion of the Fiduciary Powers Act, specifically General Statutes § 45a-244 (2), did not apply in this case because it was not incorporated by reference or adopted verbatim in the trust indentures as required by General Statutes § 45a-233 (c). In addition, they argued that the trust indentures only relieved the bank of liability for LaSaracina’s action if LaSaracina was acting in furtherance of the trusts’ interests, rather than in furtherance of his own interests. They asserted that pursuant to this state’s common law, the bank owed to the trusts a duty to inquire or investigate.

On January 12, 2012, the court granted the bank’s motion to strike each count of the plaintiffs’ complaint, holding that “the information in the [b]ank’s possession when it entered into the loan transaction with the [t]rusts did not create a duty to investigate LaSaracina’s past wrongful conduct.” The court explained that the plaintiffs alleged in their complaint that “the [b]ank received a pledge of the [t] rusts’ assets in connection with a loan to the [tjrasts, not to LaSaracina personally. Furthermore ... all of the proceeds of the [b]ank’s loan went to reheve the [t]rusts’ obligations to Flushing Savings Bank.” The court concluded that the plaintiffs did not allege that the bank had knowledge of LaSaraci-na’s prior misappropriation of the trusts’ property; rather, the plaintiffs alleged only that the bank had a duty to conduct an inquiry to discover such misappropriation. The court, however, concluded that the law did not support the imposition of such a duty, and it granted the bank’s motion to strike the complaint. Following the plaintiffs’ failure to replead within fifteen days, the bank filed a motion for judgment, which the court granted. See Practice Book § 10-44. The plaintiffs then filed the present appeal.

On appeal, the plaintiffs claim that the court improperly struck their complaint in its entirety after finding that the defendant owed to the plaintiffs no legal duty to investigate. They contend that the court’s “reasoning [was] fatally flawed in that the court misinterpreted and therefore misapplied the law governing when a bank’s duty to investigate attaches.” The plaintiffs argue: “The crux of [our] claim is that the [bank] had constructive knowledge of LaSaracina’s activities by virtue of the fact that it had sufficient information from which it had a duty to conduct further inquiry, and had it conducted such inquiry it would have discovered that it was assisting LaSaracina in his breach of trust.” (Internal quotation marks omitted.) Citing Leake v. Watson, 58 Conn. 332, 343, 20 A. 343 (1890), the plaintiffs contend that “where a party has knowledge that the property being passed to them is trust property, they are ‘put upon inquiry,’ and ‘the law imputes to them such knowledge as they would have obtained had they made inquiry.’ ” They continue: “If the court had performed a correct analysis of [prior case law,] it would have come to the conclusion that the [plaintiffs’] complaint does sufficiently allege the [bank’s] knowledge that it had received trust property. . . . This allegation is all that the [plaintiffs] needed to make in order to establish the creation of a duty of inquiry, which case law shows the [bank] had in the present case, and to therefore survive the [bank’s] motion to strike.” (Emphasis in original.) We are not persuaded.

“Our standard of review is undisputed. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary. ... On a motion to strike, the trial court’s inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly.” (Citations omitted; internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 37, 830 A.2d 240 (2003).

“The test for the existence of a legal duty is twofold. It entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.” (Internal quotation marks omitted.) Del Core v. Mohican Historic Housing Associates, 81 Conn. App. 120, 123-24, 837 A.2d 902 (2004).

In the present case, the plaintiffs set forth only one argument in support of their claim—that to establish a duty to inquire or investigate in the present case, they simply needed to allege that the bank had knowledge that it was receiving trust property and that this allegation alone sufficed to establish a duty to inquire or investigate. During oral argument, this court asked the plaintiffs’ counsel what specific inquiry she was claiming the bank had a duty to make, and she responded that the bank had a duty to conduct an investigation as to the use of the loan proceeds. When this court asked counsel whether the bank knew that the proceeds from the bank’s loan were going to pay off the Flushing Savings Bank loans in order to obtain release of the mortgage held by Flushing Savings Bank on the trusts’ property, counsel initially said no—that the bank gave LaSaracina a check for $1,300,000 for his own use; counsel then acknowledged some confusion about the accuracy of her answer. During her rebuttal argument counsel corrected her statement and acknowledged that the bank loan proceeds were used to pay off the Flushing Savings Bank loans and to obtain a release of the mortgage held by Flushing Savings Bank on the trusts’ property that was securing those loans. Counsel also argued, however, that the bank’s duty to inquire or investigate would require more than just knowing that the loan from the bank was being used to pay off the loans from Flushing Savings Bank; it would require that the bank investigate the purpose, use and status of the Flushing Savings Bank loans. The bank contends that our law does not recognize any duty requiring it to investigate the trustee or any previous transaction in the absence of its knowledge of any wrongdoing.

As to the plaintiffs’ argument that the bank had a duty to conduct an inquiry into the use of the loan proceeds, we conclude that even if there exists such a duty, it is uncontested in this case that the bank knew the intended use of the loan proceeds as the plaintiffs alleged in their complaint, i.e., to pay off the Flushing Savings Bank loans and to obtain the release of the mortgage and UCC security interests securing those loans. As to the plaintiffs’ additional argument that the duty to inquire also required the bank to examine fully the circumstances surrounding the Flushing Savings Bank loans, we conclude that the plaintiffs’ proposition is not supported by our case law.

The plaintiffs primarily rely on the case of Leake v. Watson, supra, 58 Conn. 332, to support their argument that, because the bank knew it was dealing with trust property, it had a duty to investigate the circumstances surrounding the Flushing Savings Bank loans. In Leake, the plaintiff successor trustee brought an action against the defendant brokers to recover the value of trust property that the brokers had received and squandered on stock speculations with the approval of the former trustee and the beneficiary of a life estate in the trust. Id., 332. The court explained: “So long as trust property improperly sold can be traced and identified, the holder taking it with knowledge, it remains trust property. When it is sold pursuant to the terms of the trust, or apparently so, and the purchaser takes it in good faith, he takes it freed from the trust. In this case, the findings show that most of the property passed from the trustee to the defendants as trust property, in gross violation of the trust, with the defendants’ full knowledge. We say with the defendants’ full knowledge, because the defendants, knowing that it was trust property, were put upon inquiry, and the law imputes to them such knowledge as they would have obtained had they made inquiry. The trust, its terms, conditions and limitations, were matters of record. Inquiry, properly directed, would have brought to them full knowledge as to the origin and nature of the trust, and that other parties . . . were interested in it.” (Emphasis added.) Id., 351-52. The court further explained that the defendants knew that the former trustee and the beneficiary of a life estate in the trust “were using the property in hazardous business—stock speculations; that they themselves were taking the only certain profits, their commissions, while doubtful profits, almost certain losses, and probably complete disaster in the end, were the prerequisites of the other party.” Id., 352.

The court in Leake imputed to the defendant brokers a duty to inquire into the origin and nature of the trust, which would have revealed that other parties had an interest in the trust, because the defendant brokers knew that the trust property was being squandered in hazardous business dealings. Id. We conclude that Leake is distinguishable from the present case because the plaintiffs here allege that the bank’s duty of inquiry involved a duty to investigate the circumstances surrounding the creation and use of the Flushing Savings Bank loans in which the bank had no involvement. The duty that the plaintiffs seek to impute to the bank goes well beyond any duty imputed to the defendant brokers in Leake. Accordingly, we conclude that Leake does not support the plaintiffs’ argument that the bank had a duty to investigate the circumstances of the loans that Flushing Savings Bank previously extended to the trusts.

The bank relies, in part, on Goodwin v. American National Bank, 48 Conn. 550 (1881), to support its argument that the trial court’s decision that the bank had no duty to investigate some unknown misconduct on the part of LaSaracina in obtaining the Flushing Savings Bank loans. Rather than address the holding in Goodwin, the plaintiffs argue that “Goodwin is inapposite to the present case because it was decided in 1881, before the landmark Connecticut case that recognizes the duty to investigate where known trust property is concerned .... Leake, which was decided in 1890 ... is still good law . . . and is controlling.” (Emphasis in original.) We are not persuaded that Leake overruled Goodwin or that it called into question the holding in Goodwin, and, accordingly, we conclude that Goodwin remains good law and that it is relevant to the present case.

In Goodwin, L. T. Pitkin had two accounts with the defendant, American National Bank. Goodwin v. American National Bank, supra, 48 Conn. 550. The first account was a personal account, and the second account was held in his capacity as town treasurer (town account). Id., 552. Pitkin, at times, transferred money between these two accounts. Id., 553. He also withdrew more than $8000 from the town account with checks payable to bearer. Id. After the death of his father, Pitkin was appointed executor of his father’s estate. Id., 551. As executor, Pitkin applied for a $10,000 loan from the defendant, using stock of the estate as collateral. Id., 551-52. He expressed to the defendant that the estate needed the money to pay certain legacies pursuant to the will. Id., 552. The defendant gave Pitkin the loan, which he deposited into his personal account, despite the existence of an account for the estate. Id. The defendant successively renewed the note over a four year period, every four months. Id., 552-53. The note was never paid, and Pitkin fled the state, “largely in default as executor, and also as treasurer of East Hartford.” Id., 554. The defendant transferred the collateral stock to itself and received the dividends thereon. Id., 555.

The plaintiff in Goodwin, the administrator of the estate of Pitkin’s father, brought an action against the defendant to compel the transfer of the stock to himself, as administrator, claiming that the defendant had knowledge that the money it loaned the estate was being used in a fraudulent manner by Pitkin. Id., 551, 564. The plaintiff claimed that the defendant was put on inquiry because Pitkin had deposited the money in his personal account. Id., 564. The court explained that because the defendant acted in good faith, relying on Pitkin’s representation that the money would be used in accordance with his powers as executor, the defendant “came under no obligation to see to the proper application of the money [because it] did not become the insurer of the estate against a devastavit.” Id., 565. The distinction between Goodwin and Leake readily is apparent. The defendant brokers in Leake had a duty to inquire because they knew that the money was being used for an improper purpose, namely, to engage in hazardous business dealings; Leake v. Watson, supra, 58 Conn. 322; while the defendant bank in Goodwin loaned the money to Pitkin on the basis of representations that the money was being used for a proper purpose in accordance with the authority vested in Pitkin as the executor of the estate. Goodwin v. American National Bank, supra, 48 Conn. 565; see also Lowndes v. City National Bank of South Norwalk, 82 Conn. 8, 19, 72 A. 150 (1909) (bank cannot knowingly participate in misappropriation of trust funds but has no duty to supervise and safeguard trust funds or to inquire where mere suspicion might be present).

In the present case, the plaintiffs are attempting to impute a duty to the bank that simply is not cognizable under our law and the facts as alleged in their complaint. The plaintiffs allege and acknowledge that LaSaracina was acting as the trustee of the trusts when he requested a loan from the bank to refinance the existing loans of the trusts with Flushing Savings Bank. The complaint fairly can be read to allege that the bank extended the requested loan to the trusts, paid off the Flushing Savings Bank loans with all of the net loan proceeds, secured release of the mortgage on the trust property held by Flushing Savings Bank and took its own mortgage on that trust property. The plaintiffs do not allege that the bank had any knowledge that LaSaracina may have used the funds from the Flushing Savings Bank loans for an improper purpose, and, without knowledge of any wrongdoing, under our law the bank had no duty to inquire about those prior completed loans before making its loan to the trusts. Accordingly, we conclude that the court properly granted the bank’s motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       Guinan replaced the named plaintiff, Fredrik D. Holth, successor trustee, following his death. Holth and the Korsus had replaced former trustee, F. Robert LaSaracina. The trial court explained that LaSaracina had been removed as trustee after it was discovered that he “had diverted to himself large portions of the res of the [t]rusts.”

       Both parties agree on appeal that the common law applies in this case.

       The court explained that “the plaintiffs’ opposition to the motion to strike [was] based entirely on the theory that the [b]ank was put on inquiry and had a duty to investigate what LaSaracina had been doing with trust assets.”

       The plaintiffs alleged in their complaint that in April, 2009, LaSaracina, acting in his capacity as trustee, applied to the bank for a loan to be secured by a real property mortgage and UCC security interest relating to “[t]rust property in the amount of $1,300,000.00 for an alleged refinance of two alleged prior promissory notes secured by alleged mortgages and security interests to Flushing Savings Bank . . . .”

       The plaintiffs also alleged during oral argument on appeal that if the bank had undertaken a review of the trust documents, it would have learned that a cosigner was required for the bank loan. This allegation, however, is absent from the plaintiffs’ complaint, and we are unable to find mention of it anywhere in the record. The plaintiffs chose to permit judgment to enter in this case, rather than to replead their complaint. We, therefore, are unable to consider this new allegation.

       Devastavit is defined as: “A personal representative’s failure to administer a decedent’s estate promptly and properly, esp. by spending extravagantly or misapplying assets.” Black’s Law Dictionary (7th Ed. 1999) p. 461.


author: PELLEGRINO, J.

text:
    ELIZABETH BAILLERGEAU v. L. BENET MCMILLAN ET AL.
    (AC 34450)
    (AC 34451)
    Lavine, Robinson and Pellegrino, Js.

      Argued November 27, 2012
    officially released July 2, 2013

      L. Benet McMillan, self-represented, and Doloures Denise Codrington McMillan, self-represented, the appellants (defendants).

      James B. McCarthy, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The self-represented defendants, L. Benet McMillan (Benet McMillan) and Doloures Denise Codrington McMillan (Doloures McMillan), appeal from the judgment of the trial court rendered in favor of the plaintiff, Elizabeth Baillergeau, and the subsequent judgments of the trial court denying their motions to open and reargue the underlying judgment. On appeal, the defendants claim that the court improperly found that Benet McMillan fraudulently conveyed property to his wife, Doloures McMillan, to avoid a creditor, and that the judgment should be opened to allow reargument with respect to that finding and the consequent order that the transfer be set aside and title to the property restored to Benet McMillan. We affirm the judgments of the trial court.

The following facts, as found by the court, and procedural history are relevant to this appeal. Kathryn McMillan, the mother of the plaintiff and Benet McMillan, was a teacher in the Stratford school system until she retired in the late 1970s and joined the Peace Corps. When she retired, she had a residence in Stratford (Stratford property) and a savings account, and she was receiving retirement income into a checking account. Before Kathryn McMillan was sent to Africa with the Peace Corps, she arranged for her son Benet McMillan, an attorney specializing in estate law, to have his name put on her checking and savings accounts while she was gone. Benet McMillan also had access to other funds belonging to his mother through a power of attorney.

During his mother’s time in Africa, Benet McMillan took tens of thousands of dollars for his own use from his mother’s savings and checking accounts, as well as other funds that he testified he had obtained with the power of attorney. Of the money taken, $20,000 was used to purchase a residence located at 722 School Drive in Baldwin, New York (722 School Drive).

Kathryn McMillan returned to Connecticut but was confined to a nursing home as a result of dementia. She passed away on April 25, 2006. Prior to her death, Benet McMillan took funds from her account to upgrade the Stratford property for an intended sale. After her death, Benet McMillan applied to be and was appointed administrator of Kathryn McMillan’s estate. There were no claims listed for or against the estate, and the only asset listed in the estate was the Stratford property. The court granted him permission to sell that property for $345,000. On August 10, 2007, Benet McMillan completed the estate sale the Stratford property. After that time, he ignored repeated requests from the Probate Court for the district of Stratford for the payment of probate fees and the filing of an accounting. The Probate Court consequently appointed a successor administrator, who filed a claim against Benet McMillan.

On February 6,2009, Benet McMillan filed a statement in lieu of accounting. The statement indicated a sale price of $320,000 for the Stratford property. After closing expenses, Benet McMillan indicated that the beneficiaries of the estate—he and the plaintiff—were to receive $126,902 each. He represented in the statement that the distribution had been made, but that representation was not true.

The plaintiff commenced the present action and filed a complaint dated July 12, 2010, alleging that, prior to the sale of the Stratford property, the defendants had obtained an oral agreement from the plaintiff under which the defendants would borrow a portion of the monies due to the plaintiff from Kathryn McMillan’s estate so that the defendants could purchase 722 School Drive in Doloures McMillan’s name. According to the complaint, because Doloures McMillan’s purchase of 722 School Drive occurred prior to the sale of the Strat-ford property, the plaintiff allegedly believed that the oral loan agreement “had been abandoned” because her bequest monies were not yet available from the estate. The complaint further asserted that in April, 2006, the plaintiff moved into a residence located at 143 Martin Avenue in Hempstead, New York (Hempstead property), which was owned by Doloures McMillan. The plaintiff and defendants allegedly agreed orally that at some point in the future, the plaintiff would purchase the Hempstead property from Doloures McMillan, and that the money for the down payment for the purchase would come out of the plaintiffs bequest; however, at an unspecified point in time during which the plaintiff resided at the Hempstead property, the plaintiff purportedly decided not to purchase that residence from Doloures McMillan and so notified the defendants.

Additionally, the complaint alleged that after the sale of the Stratford property in August, 2007, the plaintiff periodically requested payment of her bequest and an accounting of the estate from Benet McMillan, but that he always deferred these requests. After the filing of the statement in lieu of accounting in 2009, the plaintiff again requested that Benet McMillan pay her bequest and provide an accounting of the estate, but he again refused. According to the complaint, in the summer of 2009, the plaintiff and Benet McMillan spoke again about payment of the plaintiffs bequest monies, at which time Benet McMillan revealed that the defendants had, in fact, used the bequest to purchase 722 School Drive, and that the only way the defendants could pay the plaintiff her bequest was to sell the Hemp-stead property. Upon the sale of the Hempstead property in December, 2009, Benet McMillan allegedly paid the plaintiff $5700 in moving expenses and deferred any further discussion of payment of the plaintiffs bequest monies, claiming that before any distribution could be made, the parties would have to agree about the proper amount of setoffs resulting from the plaintiffs failure to purchase the Hempstead property herself and for expenses resulting from her tenancy. The complaint further alleged that Benet McMillan had made a false representation to the Probate Court regarding the distribution of the plaintiffs bequest, and that the defendants’ failure to deliver the bequest to the plaintiff constituted a breach of constructive trust and conversion of the bequest funds.

In their answer, the defendants asserted, inter alia, that Benet McMillan had lent Doloures McMillan money from the joint account he held with Kathryn McMillan to purchase 722 School Drive. The defendants claimed that the loan was not part of Kathryn McMillan’s estate because the loan occurred prior to her death, and that there was no oral or written agreement with the plaintiff concerning any of the loaned money. The answer also alleged that the plaintiff owed various rent arrears and other reimbursements stemming from her occupancy at the Hempstead property and the defendants’ purported belief that she would be purchasing that residence from Doloures McMillan, and that the plaintiffs failure to purchase that residence resulted in a decline in its value of approximately $100,000.

During a trial to the court, the court heard testimony from the parties regarding the estate and the various accounts, properties, and transactions underlying the claims alleged in the complaint and answer. The court also heard testimony regarding a transfer of property located at 716 School Drive in Baldwin, New York (716 School Drive). The evidence established that Benet McMillan and Doloures McMillan as tenants by the entirety, by quitclaim deed dated December 31, 2009, conveyed 716 School Drive to Doloures McMillan and her son, Simeon McMillan, as joint tenants with the right of survivorship “in consideration of [t]en [d]ollars and other valuable consideration paid . . . .” Benet McMillan admitted in his testimony that this transfer occurred after he had received letters from the plaintiff’s attorney in November, 2009, regarding the distribution of funds from the estate. The plaintiffs counsel argued that Benet McMillan was insolvent following this transfer of his interest in 716 School Drive to his wife and her son.

The court also heard testimony from Doloures McMillan regarding, inter alia, the transfer of Benet McMillan’s interest in 716 School Drive. She indicated that, prior to the transfer, she had trusted Benet McMillan to be in charge of their finances, and that the transfer occurred after the December 2009 sale of the Hemp-stead property, when she discovered that a foreclosure was pending on her residence and that Benet McMillan owed somebody else money. Doloures McMillan testified that she was “furious” and demanded the transfer of Benet McMillan’s interest in 716 School Drive because she needed more than just an apology from her husband; she “ ‘[needed] something concrete.’ And so that’s why the exchange, and then [she] put [her] son on [the deed].” Doloures McMillan reiterated that the transfer occurred after she “[found] out [she had] a financial disaster,” and that “[i]t had nothing to do with . . . going in cahoots with [her] husband.”

In its memorandum of decision, dated January 9, 2012, the court concluded that the plaintiff never introduced “proper evidence that there was a constructive trust with respect to the purchase of [722 School Drive].” The court found, however, that the transfer of Benet McMillan’s interest in 716 School Drive “for $10.00” was a fraudulent transfer. Although the court found that Doloures McMillan testified credibly about her reasons for seeking to divest her husband’s interest in the property, the court concluded that the “more overriding purpose” was for Benet McMillan to avoid his obligation to the plaintiff and ordered: “The transfer is set aside and the defendants are ordered to restore title to the defendant Benet McMillan within thirty days.” In addition, the court rendered a monetary judgment against Benet McMillan in the amount of $155,893 plus postjudgment interest.

On January 30, 2012, the defendants filed motions to open and to reargue claiming, inter alia, that the court “failed to take into account the plain language on the face of the [quitclaim] deed . . . which provided that the transfer was made ‘in consideration of [t]en [d]ollars and other valuable consideration’ and totally ignored the issue of what was the ‘other valuable consideration.’ ” The defendants asserted that the court had ignored the defendants’ testimony regarding the purpose of the transfer of Benet McMillan’s interest in 716 School Drive, and incorrectly concluded that the transfer was fraudulent based on its assumption that the transfer was for only $10. The defendants also sought to “offer documentation regarding the specific details of the amount of‘other valuable consideration’ ” Doloures McMillan paid to Benet McMillan for the transfer of his interest in the property.

The court heard argument on the defendants’ motions to open and to reargue on February 27, 2012. During argument, Benet McMillan offered to present documents to the court regarding the consideration for the transfer of his interest in 716 School Drive. The court declined to accept the documents, stating, inter alia: “[The documents] weren’t presented at the time . . . this matter was brought up, there was discussion, you referenced them. The idea is that a motion to reargue, the requirements are if you had it available at that time, then you had an obligation to present it. . . . [A]nd at the time, I could decide the credibility of all this stuff. A lot [of] things came in that I didn’t think were credible, to tell you the truth, during this trial. ... So that’s it.” Following the hearing, the court denied the motions to open and to reargue. These appeals followed. Additional facts will be set forth as necessary.

On appeal, the defendants claim that the court erred in: (1) misapprehending the language of the quitclaim deed and the defendants’ testimony regarding the purported “other valuable consideration” given for Benet McMillan’s interest in the property; (2) overlooking the applicability of General Statutes § 52-552b (2), which the defendants claim precludes a finding of fraudulent conveyance with respect to an interest in property held in a tenancy by the entireties; and (3) ordering that title in 716 School Drive be restored to Benet McMillan when Simeon McMillan, one of the transferees of the property, was not a party to the litigation. We will address these claims in turn.

I

The defendants first assert that the judgment should be opened and reargument allowed to correct the court’s misapprehension of the consideration purportedly given to Benet McMillan in exchange for the transfer of his interest in 716 School Drive. According to the defendants, the court ignored both the language on the quitclaim deed indicating that Benet McMillan transferred his interest in the property “in consideration of [t]en [d]ollars and other valuable consideration,” as well as the defendants’ testimony concerning the circumstances of the transfer and the consideration allegedly given. We are not persuaded.

“In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Eremita v. Morello, 111 Conn. App. 103, 105-106, 958 A.2d 779 (2008). Likewise, “[t]he standard of review for a court’s denial of a motion to reargue is abuse of discretion.” (Internal quotation marks omitted.) Fortin v. Hartford Underwriters Ins. Co., 139 Conn. App. 826, 843, 59 A.3d 247, cert. granted on other grounds, 308 Conn. 905, 61 A.3d 1098 (2013). “When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did. . . .

“[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .” (Internal quotation marks omitted.) Id.

In support of their claim that the court misapprehended the value of the consideration given for Benet McMillan’s interest in 716 School Drive, the defendants reiterated the testimony and documentary evidence before the court, asserted that the court wrongly interpreted this evidence, and attempted to provide the court with additional documents purportedly demonstrating the court’s misunderstanding of the facts. The defendants did not assert that this proffered documentation was newly discovered; rather, they simply asserted that they had compiled documents to correct the court’s purported misapprehension of the nature of the consideration. Because this argument is effectively nothing more than an attempt to have an impermissible second bite of the apple with respect to the court’s determination regarding the circumstances of the transfer of 716 School Drive, the court did not abuse its discretion in denying the defendants’ motions. See, e.g., Fortin v. Hartford Underwriters Ins. Co., supra, 139 Conn. App. 843-44 (“In connection with their motions to reargue, the [movants] submitted numerous exhibits to the court. These exhibits were not presented to the court prior to the filing of the motions to reargue. . . . The [movants], on appeal, do not assert that these materials were newly discovered or that, in the exercise of due diligence, they could not have been submitted earlier. Rather, they argue that the submissions would have demonstrated that the court misapprehended material facts. Insofar as the [movants] challenge the court’s determination on appeal, there is no merit to their argument.”); Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640, 655-56, 905 A.2d 1256 (2006) (no abuse of discretion in denying motion to reargue and declining to consider new evidence where “the [movants] through their motion to reargue plainly were seeking the proverbial ‘second bite’ ”).

n

Next, the defendants claim that the court overlooked § 52-552b (2), which the defendants contend precludes a finding of fraudulent conveyance with respect to property held in a tenancy by the entireties. Because this claim was not presented sufficiently to the trial court, we decline to review it.

The following additional facts are relevant to this discussion. In the defendants’ written motions to open and reargue, they relied solely upon the contention that the court erred in ascertaining and valuing the consideration Benet McMillan received from Doloures McMillan in exchange for the transfer of his interest in 716 School Drive. The motions made no mention of § 52-552b (2). During the hearing on the defendants’ motions, Benet McMillan stated: “[The court’s] attention should be directed to the Connecticut Statute § 52-552b (2) which according to my reading, would exclude the residence from the section because it is—it is an asset that’s not included in this section. That’s my reading of the—of the section.” Benet McMillan made no further argument on the applicability of the statute, and neither defendant mentioned the statute again at any other point during the hearing. The court’s decision on the defendants’ motions made no mention of § 52-552b (2), and the defendants did not seek articulation of that decision.

“Connecticut’s appellate courts often have recognized that they are not obligated to consider claims not distinctly raised at trial and decided by the trial court.” 36 DeForest Avenue, LLC v. Creadore, 99 Conn. App. 690, 704-705, 915 A.2d 916 (court did not consider plaintiffs claim where only argument to trial court was “cursory and superficial,” and issue was “submitted to the trial court in a casual and incomplete manner and never was ruled on”), cert. denied, 282 Conn. 905, 920 A.2d 311 (2007); see also Practice Book § 60-5 (“[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial”). The requirement that a claim be “distinctly raised” at trial “means that [the claim] must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis in original; internal quotation marks omitted.) U.S. Bank National Assn. v. Iaquessa, 132 Conn. App. 812, 814-15, 34 A.3d 1005 (2012); see also Remillard v. Remillard, 297 Conn. 345, 351, 999 A.2d 713 (2010) (“issue briefly suggested in trial court is not distinctly raised” [internal quotation marks omitted]).

Here, the only discussion of § 52-552b (2) before the trial court was Benet McMillan’s brief mention of the provision during oral argument on the motions to open and reargue, and his conclusory statement that his interest in 716 School Drive would be excluded under the section “according to [his] reading” of the statute. He did not quote the language of the statutory provision at issue, and neither defendant provided the court with any meaningful analysis of the statute’s alleged relevance to this matter. The court made no response to Benet McMillan’s argument during the hearing, and its decisions on the defendants’ motions were silent as to this purported statutory argument. Under these circumstances, we conclude that the defendants did not “distinctly raise” the issue before the trial court, and, accordingly, we decline to review the merits of this claim.

IE

Finally, the defendants claim that, even assuming the court’s finding of fraudulent conveyance was correct, the court cannot enforce the portion of its order requiring restoration of title to Benet McMillan. Specifically, the defendants argue that because Simeon McMillan was a transferee on the deed to 716 School Drive but was never made party to the litigation or otherwise appeared in the matter, the court has no jurisdiction over him, and thus, the court’s judgment could not be enforced against him. Because the defendants did not present this argument to the trial court, we decline to review it here. See, e.g., Remillard v. Remillard, supra, 297 Conn. 351-52 (“to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court ... to address the claim— would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party” [internal quotation marks omitted]).

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendants originally filed two appeals challenging the court’s underlying judgment and the denial of their motions to open and reargue, respectively. This court sua sponte ordered the consolidation of the appeals on May 7, 2012.

       To the extent that the defendants have asserted that the court ignored and/or assigned improper weight to certain of the evidence before it at trial, we note that it is well settled that determinations as to credibility and weight of the evidence are within the sole province of the trial court as the finder of fact. See, e.g., Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).

       The defendants further suggest on appeal that they did not submit the documents earlier because the court “failed to pursue a financial analysis of [the] transfer” during the trial and did not inform them that the documents were necessary. As the defendants recognize, however, the court mentioned the need for financial information during the hearing on September 21, 2011—yet, the defendants made no offer of the puiportedly relevant documents on that day or when they returned to court on October 28, 2011, for the continuation of the trial.

       General Statutes § 52-552b (2) provides in relevant part that for purposes of the Uniform Fraudulent Transfer Act, General Statutes §§ 52-552a to 52-552l, an “asset” is defined as “property of a debtor, but the term does not include ... an interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.” Because we decline to review the merits of the defendants’ § 52-552b (2) claim, we do not reach the issue of whether this statute is applicable where the property at issue is located outside the state of Connecticut.

       We acknowledge that effectuating the order of the trial court setting aside the transfer of Benet McMillan’s interest in 716 School Drive, which we affirm, will require Doloures McMillan to convey her interest in that property to Benet McMillan and will not affect the interest of Simeon McMillan, who is not a party to the underlying action. After the court-ordered transfer, the title to 716 School Drive will be held by Benet McMillan and Simeon McMillan as joint tenants.

       Similarly, to the extent that the defendants argue for the first time in their reply brief on appeal that New York Civil Practice Law and Rules § 5206 (a) exempts the value of Benet McMillan’s interest in 716 School Drive from the satisfaction of a money judgment in the plaintiff’s favor, and that the court improperly failed to set any limit on the amount of a lien the plaintiff could file against Benet McMillan’s interest in the property, we also decline to address this argument. It is well settled that this court need not consider arguments raised for the first time in a reply brief. See, e.g., Lawrence v. State Board of Education, 140 Conn. App. 773, 780, 60 A.3d 961 (2013).


author: SHELDON, J.

text:
    ESTUARDO REYES ET AL. v. NICHOLAS CHETTA ET AL.
    (AC 34730)
    Beach, Sheldon and Bishop, Js.

      Argued March 12
    officially released July 2, 2013

      Frederick J. Martin, for the appellant (defendant Michael Amoroso).

      Jason P. Gladstone, for the appellees (plaintiffs).
   Opinion

SHELDON, J.

This action involves a claim of tortious interference with a business relationship or expectancy arising under successive contracts for the purchase and sale of a landscaping and snow removal business, first from the defendant Michael Amoroso to the defendant Nicholas Chetta, and then from Chetta to the plaintiff Estuardo Reyes. Amoroso appeals from the judgment of the trial court awarding damages to Reyes in the amount of $50,000 and prejudgment interest in the amount of $20,383.57. We reverse the judgment as to the court’s award of prejudgment interest, but affirm the judgment in all other respects.

The facts of this case are largely undisputed. For six years, Amoroso owned and operated a landscaping and snow removal business known as Down 2 Earth Lawn Care, LLC (business). On August 27, 2007, Amoroso entered into an agreement to sell the entire business, then consisting of eighty-nine landscaping accounts, fifty-nine snow plowing accounts and certain equipment, to Chetta. The agreement, which contained a complete list of the business’ accounts, including the name and address of each customer and the prices of the services to be performed for such customers, was secured by a promissory note in the amount of $85,000, under which Chetta was required to make monthly payments to Amoroso until the entire debt was paid in full. The note provided that Chetta would be in default if he did not pay the full amount of each monthly payment within thirty days from the date on which it was due, and in the event of default by Chetta, Amoroso could accelerate the payment of the entire unpaid balance of the note. The agreement did not provide, however, that the business would revert to Amoroso in the event of a default. The note also provided as follows: “[T]his note shall bind the heirs, executors, administrators, successors and assigns of the Maker, and shall inure to the benefit of the Note Holders, their successors and assigns.” Chetta made his last monthly payment on the note on March 9, 2008.

On January 23, 2008, Reyes purchased from Chetta all of the accounts of the business, which Chetta had previously purchased from Amoroso, for a total price of $50,000. Reyes paid the entire purchase price to Chetta without signing a note or assuming any obligation under Chetta’s prior note to Amoroso.

Sometime during April, 2008, Amoroso saw Reyes performing landscaping services for one of his former customers. Reyes informed Amoroso that he had purchased Chetta’s business for $50,000. Thereafter, on or about May 1, 2008, Amoroso contacted all of his former customers in an effort to get them to rehire him. When making such contacts, Amoroso informed his former customers that he was back in business and wanted their business back, but that they would first have to contact Reyes and cancel their services with him. According to Amoroso, he was able to persuade approximately 70 percent of his former customers to rehire him.

Reyes filed this action against Amoroso and Chetta, claiming breach of contract, tortious interference with a business relationship or expectancy and conversion as to Chetta; tortious interference with a business relationship or expectancy as to Amoroso; and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and civil conspiracy as to both Chetta and Amoroso. Amoroso thereafter filed a cross complaint against Chetta for the unpaid balance due on the $85,000 promissory note.

Following trial and the filing of the parties’ posttrial briefs, the court rendered a judgment of nonsuit as to the civil conspiracy counts against both Chetta and Amoroso, and as to the breach of contract, conversion and tortious interference with business relations counts against Chetta. The court also rendered a judgment of nonsuit against Amoroso on his cross complaint. On June 4, 2012, the court filed a corrected memorandum of decision rendering judgment in favor of Reyes. The court found that Amoroso admitted that he knew that Reyes had paid Chetta $50,000 for the business; that Chetta was not yet technically in default of their contract; that, in the event of a default, the only remedy that their contract provided for was an acceleration of the due date of the balance to be paid in full; and that there was no provision in the contract that provided for the reversion of the business back to him. The court found that Amoroso had decided that he wanted “all of it back” and admitted that he “ ‘took it from [Reyes].’ ” Amoroso “contacted every customer on the list and told them that he was back in business, that he wanted their business back and asked them to cancel their service with [Reyes].” The court further found that Amoroso was aware that Reyes was just beginning to service the business accounts and that he would not have been able to establish an agreement with all of the customers, so it was an opportunity for him “ ‘to get his business back.’ ” The court determined that, in appropriating 70 percent of Reyes’ potential clients, Amoroso “in effect eliminated [Reyes’] purchased business aspirations.” On those bases, the court concluded that Reyes met his burden of proving his tortious interference claim against Amoroso, and thus awarded him damages in the amount of $50,000, plus prejudgment interest in the amount of $20,383.57. The court also found that Amoroso had violated CUTPA with respect to Reyes, but declined to award Reyes damages for that violation because it had awarded him damages for the same losses on his tortious interference claim. This appeal followed.

“A successful action for tortious interference with business expectancies requires the satisfaction of three elements: (1) a business relationship between the plaintiff and another party; (2) the defendant’s intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss.” (Internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 101 Conn. App. 83, 90, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).

On appeal, Amoroso challenges the court’s determination that he tortiously interfered with Reyes’ business relations, its award of damages and its award of prejudgment interest. We address each claim in turn.

I

Amoroso first claims that the trial court improperly concluded that his conduct was tortious. “Our case law has recognized that not every act that disturbs a business expectancy is actionable. [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself. . . . Accordingly, the plaintiff must plead and prove at least some improper motive or improper means. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that . . . the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. ... In the context of a tortious interference claim, the term malice is meant not in the sense of ill will, but intentional interference without justification. ... In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the [defendant].” (Citations omitted; internal quotation marks omitted.) Id., 90-91.

Our analysis of Reyes’ tortious interference claim is further instructed by 4 Restatement (Second), Torts § 767 (1979), which sets forth seven factors to consider in determining whether the interference is improper, namely: “(a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties.” See also Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 702 n.3, 569 A.2d 1157, cert. denied, 214 Conn. 809, 573 A.2d 320 (1990).

In examining the propriety of the court’s judgment, we must determine “whether the court’s conclusions were legally and logically correct and whether they are supported by the facts appearing in the record. . . . [W]e must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the [party or] parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge [and/or] the jury, who saw the witnesses and heard the testimony .... The . . . judgment [will be reversed] only if we find that the [court] could not reasonably and legally have reached [its] conclusion. . . . We apply this familiar and deferential scope of review, however, in light of the equally familiar principle that the [plaintiff] must produce sufficient evidence to remove the [court’s] function of examining inferences and finding facts from the realm of speculation.” (Internal quotation marks omitted American Diamond Exchange, Inc. v. Alpert, supra, 101 Conn. App. 89.

Most of Amoroso’s argument relies upon his contention that the court improperly found that Amoroso told his former customers that he called them to cancel their services with Reyes. That argument, however, is belied by Amoroso’s own testimony, which he quotes in his brief to this court. There, he explicitly stated that “I had them call Reyes and cancel the service and then call me back . . . .”

Amoroso acknowledges that his conduct was intentional, that he called his former customers on the list and he solicited their business, all the while knowing that those accounts had been sold to Reyes, but argued at trial, and continues to argue now, that he was justified in doing so because he was not receiving payments from Chetta. In short, he relies upon the fact that Chetta was not fulfilling his obligations under their agreement as justification for him to go after the accounts that Chetta thereafter had sold to Reyes. Chetta’s default on his obligations to Amoroso, however, does not support Amoroso’s claim that he did not tortiously interfere with Reyes’ business relations; in fact, if Chetta was in default, Amoroso’s agreement with Chetta specifically provided for Amoroso’s remedies, none of which included taking back his customers, and in essence, his business. Amoroso’s argument in this regard also underscores the puzzling fact that he has not pursued any remedy or taken any legal action against Chetta. In that regard, the court further noted: “In addition to successfully appropriating the potential clients of [Reyes], Amoroso had initially filed a cross complaint against Chetta seeking the balance of the sales price for the business he sold to Chetta; summarily attempting to collect the balance of the $85,000 sales price of the business and enjoy a double recovery by simultaneously keeping the business for himself.” The record supports the court’s factual findings. We thus conclude that there is ample evidence in the record from which the court reasonably could have concluded that Amoroso’s conduct was tortious.

II

Amoroso next challenges the court’s award of damages. As previously noted, “it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 33, 761 A.2d 1268 (2000).

“It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). “In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed.” (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006).

Section 774A (1) of 4 Restatement (Second) of Torts provides: “One who is hable to another for interference with a contract or prospective contractual relation is hable for damages for (a) the pecuniary loss of the benefits of the contract or the prospective relation; (b) consequential losses for which the interference is a legal cause; and (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.”

We accord plenary review to the court’s legal basis for its damages award. See First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 603, 724 A.2d 497 (1999). The court’s calculation under that legal basis is a question of fact, which we review under the clearly erroneous standard. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 28, 664 A.2d 719 (1995).

“The amount of a damage award is a matter peculiarly within the province of the trier of fact . . . .” (Internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004). “[W]e cannot disturb the court’s finding as to the amount of damages unless it appears that the court unreasonably exercised the large discretion necessarily vested in it and awarded damages so excessive as to be unreasonable and to amount to an injustice.” (Internal quotation marks omitted.) Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn. App. 619, 635, 548 A.2d 758 (1988).

Amoroso claims that there is no causal connection between his allegedly tortious conduct and Reyes’ loss that would give rise to an award of $50,000. The court, however, specifically found that Amoroso’s conduct deprived Reyes of ever receiving any benefit from his purchase of the business, for which he paid $50,000. In essence, the court found Reyes’ actual loss to be the $50,000 that he paid for the accounts, which Amoroso took from him. Amoroso has not provided any law, nor are we aware of any, that would preclude the court from awarding damages based upon the loss of the price that Reyes had paid for the business that he lost as a result of Amoroso’s tortious conduct.

Amoroso further contends that, “[i]f anything, the loss claimed to have been caused by [him] (which of course is disputed) would be the net profit on the [70 percent] of the customers who returned to [him].” This measure of damages, however, was specifically rejected by this court in American Diamond Exchange v. Alpert, supra, 101 Conn. App. 103 (proper measure of damages in action for tortious interference with business expectancy is not profit to defendant).

Amoroso argues that even if we conclude that the $50,000 that Reyes paid for the business was an appropriate measure of damages, the award should be only 70 percent of that $50,000 purchase price because he testified that he was only able to solicit 70 percent of his customers back. The trial court determined, however, that Amoroso, by his conduct, took the entire business away from Reyes, and thus that Reyes was not able to obtain any benefit from that business, for which he had paid Chetta the price of $50,000. The court found that, in appropriating 70 percent of Reyes’ potential clients, Amoroso, “in effect, eliminated [Reyes’] purchased business aspirations.” It is not unreasonable to conclude that because Reyes was left with only 30 percent of the accounts that he had purchased, those accounts were insufficient to maintain the business, and thus Amoroso’s conduct had resulted in the total loss of the business to Reyes. We thus conclude that the court did not abuse its discretion in awarding damages in the amount of $50,000 to Reyes.

Ill

Finally, Amoroso challenges the court’s award of prejudgment interest in the amount of $20,383.57. The court did not set forth the legal or factual bases for its interest award, and simply stated that it covered the period “from May 1, 2008, to the date of this judgment.” Although Amoroso speculates, in his brief to this court, that the prejudgment interest award “presumably” was based upon General Statutes § 37-1, the prayer for relief in Reyes’ complaint seeks prejudgment interest pursuant to General Statutes § 37-3a. Accordingly, § 37-3a is the only statute upon which the court could have based its award of prejudgment interest and we thus review the court’s award in light of that statute.

“Section 37-3a provides a substantive right that applies only to certain claims. ... It does not allow prejudgment interest on claims that are not yet payable, such as awards for punitive damages ... or on claims that do not involve the wrongful detention of money, such as personal injury claims .... Under § 37-3a, an allowance of prejudgment interest turns on whether the detention of the money is or is not wrongful under the circumstances. . . . There are well established propositions that § 37-3a provides for interest on money detained after it becomes due and payable, that the question under that statute is whether the money was wrongfully withheld .... The statute, therefore, applies to claims involving the wrongful detention of money after it becomes due and payable.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 739-40, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). “To award § 37-3a interest, two components must be present. First, the claim to which the prejudgment interest attaches must be a claim for a liquidated sum of money wrongfully withheld and, second, the trier of fact must find, in its discretion, that equitable considerations warrant the payment of interest.” Ceci Bros., Inc. v. Five Twenty-one Corp., 81 Conn. App. 419, 428, 840 A.2d 578, cert. denied, 268 Conn. 922, 846 A.2d 881 (2004).

Here, Reyes did not assert a claim for a liquidated sum of money that Amoroso wrongfully withheld from him. The court’s award of prejudgment interest therefore was improper.

The judgment is reversed only as to the award of prejudgment interest and the case is remanded with direction to vacate that award. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Chetta is not a party to this appeal.

       The subject business, Down 2 Earth Lawn Care, LLC, also is a plaintiff in this action. In the interest of simplicity, in this opinion we treat Reyes as the sole plaintiff.

       Although it is not clear from the record what became of Reyes’ CUTPA claim against Chetta, that has no bearing on the issues before us because the court rendered a judgment as to all of the causes of action against Amoroso. See Practice Book § 61-3.

       Reyes also sought lost profits in the amount of $32,000, but the court rejected that claim as speculative. That determination has not been challenged on appeal.

       The court did, however, award attorney’s fees under Reyes’ CUTPA claim, and Amoroso has challenged that award on appeal. Because the court has not yet determined the amount of that award, this court dismissed that portion of Amoroso’s appeal for lack of a final judgment. See Stuart v. Stuart, 112 Conn App. 160, 188-89, 962 A.2d 842 (2009), rev’d in part on other grounds, 297 Conn. 26, 996 A.2d 259 (2010).

       At trial, Amoroso testified: “ [0]nce I [came] to terms that I was definitely out of everything, then I started to make phone calls to the customers on— on the list. ... I told [them]—well, basically the conversation went they— most of them knew who I was just by my voice, but I said that you know that I sold the business to [Chetta], now [Chetta] in turn sold the business to somebody else, and [Chetta] stopped paying me. So I said, just to let you know, I have to go back in business. And, you know, a lot of them said, okay, well, put me back on the list, and I, you know, said, I can’t do that. You know, you have to call Eeyes because they were—you know, I didn’t want to show up with both of us on the lawn at the same time. So I—I had the customers call—after they hung up with me, I had them . . . call Eeyes and cancel the service and then call me back so I can make a separate list.”

       As noted herein, the promissory note securing the agreement between Amoroso and Chetta inured to the benefit of each party’s successors and assigns. The agreement thus contemplated that Chetta might transfer the business to a third party, who would acquire all of its customers and good will free from any interference by Amoroso, who retained no right to take the business back if Chetta ceased to operate it himself.

       Because we affirm the judgment of the court as to the tortious interference claim, we need not consider Amoroso’s claims on appeal regarding CUTPA.

       In light of the fact that Amoroso had sold the business to Chetta for $85,000 less than one year prior to taking it back from Reyes, Amoroso does not, and reasonably cannot, argue that the $50,000 exceeds the value of the business.