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Scarfo v. Snow

Court of Appeals of Connecticut

September 27, 2016


          Argued March 2, 2016

         Appeal from Superior Court, judicial district of Middlesex, Epstein, J.

          Michael F. Dowley, with whom, on the brief, was Melissa S. Harris, for the appellant (plaintiff).

          John C. Leary, for the appellees (named defendant et al.).

          Alvord, Prescott and Mullins, Js.


          MULLINS, J.

         The plaintiff, Neil Scarfo, appeals from the judgment of the trial court, rendered in favor of the defendants, Patrick Snow, Cider Hill Associates, LLC (Cider Hill), [1] Premier Building & Development, Inc., Kane Street Associates, LLC, Cobblestone Associates, LLC, Premier Financial, Inc., Sydney Property Management, LLC, and Premier Development, Inc.[2] On appeal, the plaintiff claims that the court erred in concluding that he did not establish his claims of spoliation of evidence, breach of contract, and breach of fiduciary duty against Snow. Although the trial court authored a well written and thorough memorandum of decision, we, nevertheless, conclude that the form of judgment was improper because the plaintiff lacked standing to assert these claims in his individual capacity, and we reverse the judgment and remand the matter with direction to dismiss the case.

         The following extensive facts, as specifically found by the trial court, inform our review. Scarfo ‘‘has been a licensed realtor in the State of Connecticut for almost twenty-eight years and works with the Century 21 agency. . . . Snow . . . has been engaged in construction and real estate development for more than twenty years. The parties had known one another for a period of time before [they entered into] the December, 2004 contract . . . . [Scarfo] had an office across the hall from [Snow] at the time of the contract, and the parties continued to have their business offices in the same building, on the same floor, across from one another, for the entire period of time at issue. . . .

         ‘‘Sometime in 2002 or 2003, Snow saw a Century 21 ad for a ‘raw' piece of land for sale in Cromwell. The owner was Evergreen Realty [(Evergreen)]. Snow consulted with a local planning and zoning attorney with regard to a possible project, but there were difficulties with initial proposals. In the spring of 2004, Snow submitted to the Connecticut Secretary of [the] State papers for registering Cider Hill Associates as a limited liability company, partially for insurance and liability reasons, with the intent of development of the property. One of Snow's companies, Premier Development, entered into a purchase agreement for the land from Evergreen in April, 2004. Scarfo had discussed with Snow the possibility of buying a lot in the planned subdivision, but instead decided to become a partner in the project.

         ‘‘On December 17, 2004, [Cider Hill] filed with the Secretary of [the] State its Articles of Organization.[3] As memorialized in their agreement dated December 30, 2004, Scarfo presented Snow with a cashier's check in the amount of $262, 500 on December 17, 2004, and, on December 20, 2004, the closing took place in which [Cider Hill] purchased the property at issue from Evergreen. As listing agent, Scarfo took a $25, 000 commission on the sale of the property, which Snow admits was a reduced commission. . . . Scarfo contends that Snow never contributed his $262, 500 share of the initial investment. Snow claims that his work in making all of the arrangements to procure the land, investigation, hiring engineers and soil scientists, planning, and incurring other professional fees before the December, 2004 agreement, amount to costs in the range of $250, 000, plus he contributed the option moneys from the November, 2004 agreements.[4] . . .

         ‘‘On December 30, 2004, [Scarfo] and [Snow] signed a written [operating] agreement [(agreement)], calling themselves ‘members, ' with each to have a 50 percent interest in Cider Hill . . . . They further agreed that, as of the date of the agreement, the value to each member was one half of the unpaid obligations of the company plus $262, 500.

         ‘‘The agreement obligated each of the members, at the end of each fiscal year, to ascertain a valuation based primarily upon the opinion of the [certified public accountant] retained by the company, and further provided that, if the members could not agree on the valuation, another certified public accountant was to determine the value of the interest. Neither member to the agreement ever provided an accounting and neither member submitted an inquiry for an accounting to a specially nominated accountant during the pendency of the agreement. However, Snow arranged for the accounting firm of Guilmartin, DiPiro & Sokolowski[5]for [Cider Hill] and Michael DiPiro of that firm prepared all of [Cider Hill's] tax returns and [schedule K-1 tax forms]. One might find that this revealed Snow's compliance with the ‘accounting' portion of the agreement mentioned . . . .

         ‘‘In an ‘Amendment' to the agreement, also dated December 30, 2004, the parties stated that each of them was contributing ‘real property to [Cider Hill] with an agreed upon value of $262, 500.' [Scarfo] and [Snow] further agreed that they would obtain financing to complete the acquisition of real property to develop a project in the estimate amount of $1, 500, 000, and they further agreed to divide equally the costs associated with debt service, taxes, and other expenses. The only specific delineation of responsibilities to either of the partners was that . . . Snow was to be responsible to ‘obtain all required approvals, including but not limited to subdivision approvals, planning and zoning approval, permitting, Cromwell approvals, Department of Transportation approvals, architectural rendering.' . . .

         ‘‘There has been no allegation that Snow did not perform these duties. Instead, [Scarfo] has alleged in his amended complaint . . . that Snow was the ‘managing partner' and [and that he] failed to value the membership annually, failed to notify [Scarfo] of the value of his membership interest, failed to obtain bids, and failed to distribute profits from the sale of the lots on the development property [in breach of the amended agreement].

         ‘‘Neither the agreement, nor the [December 30, 2004] amendment . . . renders [Snow] the ‘manager' of the property. Nor does the agreement require [Snow] to determine a value of the membership and provide it to [Scarfo]. Indeed, each partner had that responsibility to the other. Except for the annual tax returns and K-1s provided by the [Cider Hill] accountant, neither party did so and neither inquired of the other.

         ‘‘Two other provisions of this agreement specifically applicable to this litigation are paragraphs 7 and 8, which provide:

         ‘‘7. All aspects of the construction of the housing units and related structures shall be performed by PREMIER BUILDING & DEVELOPMENT, INC., at a cost plus 5 [percent]. [Cider Hill] shall obtain [three] bids for this work to estimate the fair market value of this work and to agree on the cost of said work.

         ‘‘8. The cost of work performed by PREMIER BUILDING & DEVELOPMENT, INC., or its affiliates or assigns, and PATRICK SNOW, or his affiliates or assigns, shall be paid from the proceeds of the construction loan as customary . . . .

         ‘‘Scarfo contends that he entered the agreement because he relied on a preliminary budget prepared by Snow, which reflected expenditures of $1, 727, 100. The agreement does not make any mention of budgets or reliance thereon. In addition, neither the agreement nor any other document provides any guarantee of profit nor pay-back to an investor in the event of going over budget. Nor does the agreement provide that lots should sell at a certain price or that the partner who actually was negotiating the sale of the lots could not exercise discretion in the sale, depending on the benefit to [Cider Hill] or the difficulty in selling any particular lot on the property.

         ‘‘Snow devoted full-time effort to the development of the [Cider Hill] subdivision and sale of the properties. While he was not designated by the parties in their agreement as the ‘managing partner, ' he was the only one of the two equal partners who worked on developing the property, engaging engineers, pavers, land-scapers, etc.; procuring estimates; considering the contractors and providers to be hired and used, etc.; negotiating the necessary arrangements and business transactions, as well as the loans; and, preparing for and procuring necessary approvals from appropriate authorities. In essence, he was the ‘de facto' managing member, or the operation would never have even begun to get under way. Snow never received any salary or compensation for his efforts.

         ‘‘In November, 2005, the Town of Cromwell Planning and Zoning Commission approved the subdivision, with special and general conditions. In 2006, lots began to be sold; indeed approximately twelve of the twenty-three lots were sold in that year. The number decreased in 2007 and 2008. The real estate market, which had been ‘on a roll, ' began the tumultuous decline from which we are only now beginning to recover, just as is the general economy. As Snow testified, he had high hopes in 2004, and before 2008, he never expected a loss. In an undated supplementary budget, proposed expenditures had increased to $2, 979, 050. This was prepared by Snow, and Scarfo did not ask any questions about it. Snow testified that the property proved to be a very difficult site on which to work. Among other things, trees had to be cleared, there were inclines and declines, a hill, the necessity of the construction of a retaining wall, the soil was a type that was difficult to control and had to be moved.

         ‘‘The income tax returns for [Cider Hill] reflect the following: 2004-no gross receipts or sales; 2005-loss of $455; 2006-profit of $166, 705; 2007-loss of $98, 501; 2008-loss of $230, 048; 2009-loss of $13, 845; 2010- loss of $157, 472, and, 2011-loss of $20.

         ‘‘Snow's ‘bookkeeping' and ‘records' keeping in this project [were] unique. According to Kathy Lehman, the woman who was his bookkeeper, customer service representative and office manager for seven years until 2010, each lot in the twenty-three lot [Cider Hill] subdivision had its own folder, containing the plot plan and closing documents. The records produced at trial certainly confirm that. Invoices from subcontractors were placed in a ‘to be paid' pile and she never paid any bill without an invoice. Thereafter, the payment set-up got confusing. [Cider Hill] did not have a credit card and had little in the way of equity at its commencement. In order to benefit from the delay of having to pay immediately, Snow took advantage of the sixty day payment plan for vendors [and] on various of the other entities' and Snow's credit cards, and those cards were used to pay [Cider Hill] bills. Snow would then later make the credit card payments. Whenever Snow needed to be reimbursed for an expenditure, he would give Ms. Lehman the receipt. According to Ms. Lehman, the credit card statements were at the office when she left.

         ‘‘In the early portion of its existence, [Cider Hill] used a [particular] software package . . . [but], by the time of the commencement of this litigation, it was no ...

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