March 11, 2019
from the Superior Court, Julia L. Aurigemma, J.
[Copyrighted Material Omitted]
A. Moffett, New Haven, for the appellant (plaintiff).
J. McDonnell, Essex, with whom, on the brief, was Michael L.
McGlinchey, for the appellee (named defendant).
Elgo and Bishop, Js.
Conn.App. 3] In this commercial dispute relating to the sale
of certain property belonging to two fitness centers, the
plaintiff, Brant Smith, appeals from the summary judgment
rendered in favor of the defendant Marshview Fitness,
LLC. The trial court concluded that the
defendant was entitled to summary judgment because the
transfer of certain property, in which the plaintiff claims
to have had an economic interest, was not fraudulent, as a
matter of law, under either the common law or the Uniform
Fraudulent Transfer Act (UFTA), General Statutes § 52-552a et
seq. In doing so, [191 Conn.App. 4] the trial court also
rejected the plaintiffs related claim under the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes §
42-110a et seq.
appeal, the plaintiff claims, among other
things, that the trial court improperly (1)
concluded that the transfer at issue was not fraudulent under
the common law or UFTA because the property that was
transferred did not constitute "assets," (2)
rejected his CUTPA claim on the ground that it was based
solely on his allegations of fraudulent transfer, and (3)
denied his motion to reargue. We affirm the judgment of the
trial court set forth the following factual and procedural
history. "The plaintiff was the owner of two fitness
centers that had been operated as Shoreline Health and
Fitness in Clinton and Old Saybrook, Connecticut. On
2010, the plaintiff and his former partners sold the
businesses to Ryan Rothschild. Rothschild bought the
businesses through two separate companies, SHF-Clinton, LLC,
and SHF-Old Saybrook, LLC (SHF entities). The Rothschild/SHF
entities purchase of the plaintiffs fitness centers was
financed by Wells Fargo Bank [Wells Fargo] under a program
sponsored by the United States Small Business Administration
[SBA]. The principal amount of the Wells Fargo loan at the
time of the plaintiffs sale to the SHF entities was $1.2
million. That loan was secured by a security interest in the
assets of the SHF entities, which was prior in right to the
security interest of the plaintiff.
Conn.App. 5] "As part consideration for the sale to
Rothschild, the plaintiff took back a promissory note for
$150,000 and another note for $300,000. Rothschild defaulted
on the notes, and the plaintiff commenced [an action] against
him titled Smith v. Rothschild, [Superior
Court, judicial district of Middlesex, Docket No.
CV-14-6012641-S] (Rothschild action). In that case, the
plaintiff filed a motion for temporary injunction and
court-ordered inspection of company records dated October 21,
2014. That motion sought to enjoin Rothschild from selling
the interests or assets of the SHF entities and an order
permitting the plaintiff to inspect and copy the books and
records of the SHF entities. The plaintiff never sought a
hearing or otherwise proceeded on the foregoing motion.
"In connection with the motion for temporary injunction,
the plaintiff signed an affidavit in which he averred that
the $300,000 note referred to above was secured by a security
agreement [that] gave the plaintiff a continuing security
interest in all of the assets of [the SHF entities]. ...
[The plaintiff] also averred that I maintain that I am
entitled to a right of first refusal with respect to any
proposed sale of the [SHF entities]. ...
"While the plaintiff was litigating his claims against
Rothschild, he was simultaneously negotiating with Rothschild
to purchase the assets of the SHF entities. The plaintiffs
offer to purchase the assets of the SHF entities was accepted
by Rothschild. However, Wells Fargo did not accept the offer
because SBA regulations prohibited repurchase of the assets
by the plaintiff, a former owner. At that time, Rothschild
and the SHF entities owed Wells Fargo in excess of $800,000
on the SBA loan used to purchase the assets ...