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Warren v. Cuseo Family, LLC

Court of Appeals of Connecticut

May 3, 2016

ELLIOT R. WARREN, EXECUTOR (ESTATE OF YVONNE B. CUSEO)
v.
CUSEO FAMILY, LLC, ET AL.

Argued February 8, 2016

Appeal from Superior Court, judicial district of Fairfield, Hon. George N. Thim, judge trial referee.

Albert R. Cuseo III, self-represented, the appellant (defendant Albert R. Cuseo III).

Douglas R. Brown, with whom, on the brief, was Daniel B. Fitzgerald, for the appellee (plaintiff).

DiPentima, C. J., and Lavine and Sheldon, Js.

OPINION

LAVINE, J.

This appeal arises from the judgment of the trial court appointing the plaintiff, Elliot R. Warren, [1]as the receiver of the defendant Cuseo Family, LLC (company), a Connecticut limited liability company.[2]On appeal, the defendant[3] Albert Cuseo III claims (1) that the plaintiff lacked standing to bring a receivership action against the company, and (2) that the court erred in appointing the plaintiff as the receiver of the company.

The following facts and procedural history are relevant to this appeal. The decedent, Yvonne Cuseo, was a member of the company who died testate on July 8, 2010. The plaintiff is the executor of her estate. Her surviving son, Peter Cuseo, is a member of the company. The defendant and John Cuseo are the decedent’s grandchildren, who are also members of the company.

The company was formed on September 11, 1995, and its primary asset is commercial real property at 1680 Post Road East in Westport (property). The decedent held a 57 percent ownership interest in the company. The company leased the property to A & J Farm Stand, LLC (tenant), whose principal member is the defendant. The tenant operated a business on the property. In a codicil to her will, the decedent bequeathed her interest in the company to the remaining members, Peter Cuseo, John Cuseo, and the defendant.

On July 17, 2012, the Probate Court approved an interim accounting of the estate submitted by the plaintiff, which the defendant appealed to the Superior Court. The estate did not have sufficient liquid assets to meet its expenses. In the decree, the Probate Court granted the plaintiff permission to bring an action in the Superior Court to dissolve the company. On April 22, 2013, the plaintiff, represented by counsel, commenced the present action seeking dissolution of the company and appointment of himself as the receiver and served the complaint on the company, [4] the defendant, Peter Cuseo, and John Cuseo. The probate appeal and the present receivership action were presented simultaneously in a hearing to the Superior Court. The plaintiff, defendant, and other witnesses testified at the hearing. On July 24, 2014, the court issued a memorandum of decision affirming the interim accounting.[5] On that same date, the court issued a separate memorandum of decision appointing the plaintiff as the temporary receiver of the company.

The trial court found that the company had been dissolved pursuant to the terms of the operating agreement because the decedent’s death constituted an event of dissociation, and a dissolution had occurred because a supermajority of the nondissociated members did not consent in writing to continue the business of the company within ninety days. The court found that since October, 2010, the company’s members had been deadlocked as to the election of a liquidating member, pursuant to the operating agreement, to wind up the company’s affairs and file articles of dissolution with the Office of the Secretary of State. The court also found that the company had not filed income tax returns in 2010, 2011, and 2012, and was not enforcing its rights as landlord to collect rent under a lease agreement. The court concluded that the tenant had not paid rent since the decedent’s death because the defendant unilaterally decided that the tenant would no longer pay the company for use of the property. The court determined that the tenant also had failed to pay $71, 419.09 in real estate taxes as required by the terms of the lease. The court found, as well, that the defendant had been making decisions on behalf of the company without the consent and against the interests of the other members. For these reasons, the court appointed the plaintiff as temporary receiver of the company.[6] The estate has yet to be settled. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the plaintiff lacked standing to bring the receivership action and seek dissolution of the company because the decedent’s estate is not a member of the company. He asserts that the operating agreement prohibited the decedent’s interest in the company from becoming part of her estate upon her death. His argument essentially is that the decedent’s interest in the company is a nonprobate asset, and thus the plaintiff does not have standing to bring the receivership action.

The following legal principles are relevant to this claim. ‘‘It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . ...


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