Shelley Yossi v. Gene Shapiro F/D/B/A Trinity Fine Arts et al (2010)

MEMORANDUM OF DECISION

The following are the relevant undisputed facts.   In April of 2006, Trinity Fine Arts, LLC (Trinity), located in Connecticut, conducted a live auction of various paintings.   An online catalogue listed the paintings and provided the following terms:  “By bidding at our auctions, whether in person, by phone, absentee bid, or on the internet, you agree to be bound by the following terms and conditions.

“4. Bidders are strongly urged to personally examine each lot on which they will be bidding, in order to determine condition, size, and restoration or repair.   All items are sold as-is and where-is.  [Trinity] disclaims any express or implied warranties or guarantees as to the authenticity, condition, merchantability, fitness for a particular purpose, correctness of the [catalogue] or supplemental material, or other description of the physical condition, size, quality, rarity ․ of any property.   No statement made anywhere, by us, our employees, officers, or agents, whether written or verbal, shall be deemed such a warranty of assumption of liability ․ Photographic images of items being offered, whether provided in print or online, as well as references in the catalogue entry or condition report to damage or restoration are for guidance only.   The absence of such a reference does not imply that an item is free from defector restoration ․ Neither [Trinity] nor its consignors are responsible in any way for errors and omissions in the catalogue, or any supplemental material.   All sales are considered final with the following exception:  [Trinity] will agree to a refund of the purchase price if within fourteen (14) days of purchase, the purchaser obtains and sends to [Trinity] a written letter from a mutually recognized expert or authority on the artist stating unequivocally that the work is a forgery or not by the represented artist ․ This exception will only apply to a work signed by the artist and not to an attribution, manner of, school of, circle of or follower of a particular artist ․ Any exceptions to this rule must be specifically approved by [Trinity] ․

“Bidding on any item indicates your acceptance of these terms and conditions, as outlined above.”

The plaintiff, Yossi Shelley, who resided in Israel, contacted Trinity, to inquire about one of the items for auction, listed as a Russian oil painting by Yuliy Klever (the Klever).   Specifically, the plaintiff wanted to know whether Trinity could provide a letter of authentication or any other provenance.¹  The co-defendant, Robert Shapiro, a member of Trinity, responded that the Klever did not have documentation of authenticity, but that “we fully believe it to be authentic.” ²  Thereafter, on April 22, 2006, the plaintiff was the successful bidder of the Klever and another item listed as a Russian oil painting by Nikolai Sverchkov (the Sverchkov).

On April 26, 2006, Shapiro sent the plaintiff an invoice for the purchase.   The email stated that upon payment, the paintings would be delivered to the local United Parcel Service (UPS) for shipping.   In an e-mail exchange to coordinate payment arrangements with the plaintiff's agent, Shapiro stated that “we have absolutely no doubts of the authenticity of the piece ․” However, notwithstanding the language in the catalogue, Shapiro agreed to give the plaintiff until May 20, 2006 ³ to have one of the paintings inspected by the “Tretyakov or other mutually recognized expert.” ⁴

In an e-mail dated May 20, 2006, UPS contacted the plaintiff to inform him that it was Trinity's shipper and to coordinate shipping arrangements.   The Klever was sent to Germany, and the Sverchkov was sent to England.   On July 19, 2006, the plaintiff received an e-mail from an auction house in Germany informing him that the Klever was improperly packed, and as a result, the frame was damaged.   In response to the plaintiff's claim, UPS emphasized that the plaintiff could not take the painting anywhere until the frame was inspected for damages.

In an e-mail dated September 4, 2006, the plaintiff informed Shapiro that he discovered that there had been restorations to the Klever.   He further informed him that various auction houses refused to accept the painting as an original.   The plaintiff requested a refund of his money.   Of note, the plaintiff did not raise any issues regarding the Sverchkov.   Shapiro responded via e-mail that the money could not be returned because the original terms and conditions of the auction stated Trinity would only accept return of the painting within fourteen days of the sale date on the condition that it was accompanied by an expert letter.   Shapiro pointed out that the plaintiff's refund request was more than four months after the sale date, and that the plaintiff did not provide the requisite letter.

The plaintiff commenced this action against Shapiro and Stephen Gass, the other member of Trinity, on June 9, 2009.   The plaintiff's six-count complaint alleges breach of contract, conversion as to both paintings, misrepresentation, a violation of the Connecticut Unfair Trade Practices Act (CUTPA) and civic theft.   On February 24, 2010, the defendants moved for summary judgment.   In support of their motion, the defendants submit the following relevant documents:  Trinity's articles of incorporation;  an affidavit of Shapiro;  e-mail correspondence between the plaintiff's agent and Shapiro;  e-mail correspondence between the plaintiff and Shapiro;  the plaintiff's deposition testimony;  a copy of the catalogue;  the plaintiff's telephone bid;  the plaintiff's interrogatory responses;  and the plaintiff's responses to the defendants' requests for admissions.

On April 2, 2010, the plaintiff filed a memorandum in opposition to the motion.   In support of his opposition he submits the following:  documents showing that Trinity was dissolved on March 28, 2007;  a copy of the catalogue;  the plaintiff's deposition testimony;  printed terms and conditions from other auction houses;  e-mail exchanges between the plaintiff and Shapiro;  e-mail exchanges between Shapiro and the plaintiff's agent;  the plaintiff's receipt for the paintings;  e-mail exchanges between the plaintiff and UPS;  a report from Dr. Elena Basner stating that the Sverckov has had some restoration;  and the plaintiff's affidavit.⁵

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

I. Claims against Gass

The defendants argue, and the court agrees, that summary judgment is appropriate for the defendant Gass on all counts because the plaintiff has only established that Gass was a member of the limited liability company.  “Much like the liability protection offered to shareholders in a corporation, members of a limited liability company have been traditionally exempt from liability based on their membership in a limited liability company while they remain personally liable for their individual conduct.   Generally, limited liability means only that a member or manager is not liable for debts and liabilities of the business solely by virtue of being such a member or manager.   It does not protect the members or managers from direct individual liability for their own wrongs, such as torts and professional malpractice.”  (Internal quotation marks omitted.)  Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 730, 924 A.2d 816 (2007).

There is no dispute that Trinity was incorporated as a limited liability company at the time of the auction.   There is also no dispute that even though Gass was a member of the limited liability company, he never had any contact with the plaintiff.   Moreover, Shapiro's affidavit states that Gass did not participate in the consignment of either painting, and the plaintiff has not presented any evidence to contest this assertion.   In fact, the plaintiff concedes that he named Gass as a defendant merely because he was a member of the limited liability company.   This, however, is not a sufficient reason to impose liability.   Accordingly, the court enters summary judgment for the defendant Gass on all counts.

II. First Count:  Breach of Contract

The defendants assert that there is no genuine issue of material fact with respect to the plaintiff's breach of contract claim.   Specifically, the defendants point out that the contractual relationship was only between Trinity and the plaintiff.   They further point out that it is undisputed that Shapiro only acted in his capacity as Trinity's representative and that Gass did not participate at all in the transaction.   Thus, they argue that summary judgment is appropriate, because as individuals, they were not parties to the transaction.

The plaintiff concedes that the contract was formed between him and Trinity.   However, he responds that Trinity is a dissolved corporate entity.   Therefore, he argues that General Statutes §§ 34-212, 34-213 and 34-214,⁶ which provide remedies for claimants seeking damages from a dissolved limited liability company, allows him to sue Shapiro and Gass individually.   In certain circumstances, § 34-214 would allow the plaintiff to sue the defendants for a claim against Trinity because the limited liability corporation has been dissolved.   Nevertheless, that statute is inapplicable in the present case.   Here, the complaint alleges that he entered into a contract with both Shapiro and Gass. The undisputed facts show that he did not.   In other words, the plaintiff does not claim that Trinity breached the contract and that, as a consequence, the individual defendants are liable for damages in their capacity as members of the dissolved limited liability corporation.   The fact that there was no contract between the plaintiff and the defendants cannot support his contractual claim against them.   Accordingly, the court must grant the motion for summary judgment with respect to the first count.

III. Second Count:  Conversion as to the Klever

The court next addresses whether there is a genuine issue of material of fact regarding the plaintiff's claim of conversion as to the Klever.  “[C]onversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights.”  (Internal quotation marks omitted.)  Miller v. Guimaraes, 78 Conn.App. 760, 778, 829 A.2d 422 (2003).   To establish a prima facie case of conversion, the plaintiff has to establish that (1) the money given to Shapiro belonged to the plaintiff, (2) Shapiro deprived the plaintiff of his funds for an indefinite period of time, (3) Shapiro's conduct was unauthorized and (4) Shapiro's conduct harmed the plaintiff.   See id. (listing elements of conversion).   “[T]here are two general classes of conversion:  (1) that in which possession of the allegedly converted goods is wrongful from the onset;  and (2) that in which the conversion arises subsequent to an initial rightful possession.”   (Internal quotation marks omitted.)  Id. The Appellate Court has held that soliciting money under false pretenses makes the possession wrongful from the onset.   See id.

Viewing the evidence in the light most favorable to the nonmoving party, there is a question of fact with respect to whether Shapiro's possession of the money was wrongful from the onset.   The catalogue listed the painting as original artwork without any qualifiers such as “school of,” “manner of,” “circle of,” or “attributed to.”   Moreover, the plaintiff claims that, in addition to the e-mail exchanges, Shapiro asserted in a separate conversation that both paintings were from “a good house” and that, if purchased, he would get a “good deal.”   In his affidavit and in his deposition testimony, the plaintiff claims that the absence of a qualifier, coupled with Shapiro's assurances, led him to believe that, notwithstanding the disclaimers, the artwork was, in fact, authentic.   Moreover, in his responses to the defendant's request for admissions, the plaintiff states that the Klever was determined to be a “fake” by a “simple check of ultraviolet light” that is conducted by “every single auction house” to detect restorations and re-painting.   Thus, this raises an issue of fact with respect to whether Shapiro conducted such a test and, if so, whether the test revealed any restoration.   Accordingly, the motion for summary judgment with respect to the Klever painting must be denied.

IV. Third Count:  Conversion as to the Sverchkov

On the other hand, the plaintiff has not demonstrated a genuine issue of fact with respect to whether Shapiro's conduct was unauthorized in the Sverchkov transaction.   Admittedly, the plaintiff has submitted a report from Dr. Basner that questions the painting's authenticity.   The plaintiff, however, concedes in his deposition testimony that he does not claim that Shapiro knew that the painting was “fake.”   Moreover, he does not challenge the painting's provenance.   He merely claims that Shapiro should have done “more expertise.”   While he states that it is an industry custom to do this, he also states that Christies, another auction house, was willing to accept and auction the painting on the basis of the painting's provenance, which is exactly what Trinity did.   Therefore, as the plaintiff has not raised a genuine issue of fact, the defendants' motion for summary judgment for conversion with respect to the Sverchkov transaction is granted.

V. Fourth Count:  Misrepresentation

The defendants argue that the court must grant summary judgment with respect to the plaintiff's claim for misrepresentation because the undisputed facts demonstrate that the plaintiff did not rely on any representation by the defendants.   They assert that he accepted the conditions of the sale, which encouraged him to examine each lot prior to purchase in order to determine authenticity.   They also point out that he had the opportunity to inspect the paintings following the auction.   They argue that the catalogue specifically stated that the items were sold “as-is” and that the catalogue descriptions did not imply that the items were free from defect.   Thus, they argue that this placed the plaintiff on notice that there was a possibility that the item was defective.   Finally, they assert that the fact that the plaintiff communicated his intent to independently investigate the paintings' authenticity established that he did not rely on Shapiro's representations.

The plaintiff counters that the contract is void because it was entered into through Shapiro's misrepresentation.   Therefore, he argues that the court cannot look to its terms to determine Shapiro's liability.

“It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree.   This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence of the execution of the contract.   Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability ․ In addition, in the absence of a claim of mistake, fraud or unconscionability, a clause disclaiming reliance by the buyer on the seller's representations is a valid contract term.”   (Internal quotation marks omitted.)  Martinez v. Zovich, 87 Conn.App. 766, 772-73, 867 A.2d 149, cert. denied, 274 Conn. 908, 876 A.2d 1202 (2005).   Nevertheless, “[f]raud vitiates all contracts, written or otherwise ․ Accordingly, fraud cannot be contracted against.”  (Citations omitted;  internal quotation marks omitted.)  Id., 778.

“A cause of action for intentional misrepresentation is essentially a claim of fraud.”  Id. “The elements of fraudulent misrepresentation are as follows:  (1) a false representation must be made as to a statement of fact;  (2) the statement was untrue and known by the defendant to be untrue;  (3) the statement was made to induce the plaintiff to act;  and (4) the plaintiff acted on the false representation to [his] detriment.”  (Internal quotation marks omitted.)  Wellington System, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 164-65, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).  “The determination of what acts constitute fraud is a question of fact ․” Miller v. Guimares, supra, 78 Conn.App. 781.

In this case, there is a question of fact with respect to whether the Klever is authentic and the extent of Shapiro's knowledge regarding its authenticity.   If he knew that the painting was not authentic, then, the statement “we fully believe it to be authentic” would qualify as an untrue statement known by the defendant to be untrue.   Moreover, there is a question of fact as to whether that statement induced the plaintiff to purchase the painting.   If Shapiro's statements fraudulently induced the plaintiff to purchase the paintings, then the contract is vitiated.   Therefore, the issue of whether the plaintiff actually had the paintings inspected within the contractual window is irrelevant.   See Martinez v. Zovich, supra, 87 Conn.App. 778 (disclaimer clause invalid when plaintiffs only entered into contract because of defendant's misrepresentations).   Accordingly, the court cannot grant the defendants' motion for summary judgment with respect to the claim for misrepresentation against Shapiro.

VI. Count Five:  CUTPA

The next question is whether summary judgment should enter for Shapiro on the CUTPA claim.   The defendants argue that the undisputed record establishes that Shapiro did not engage in any unfair acts because he only availed himself of his rights afforded under the terms of the sales agreement.   Thus, they assert that summary judgment is appropriate as to the CUTPA claim.   The plaintiff counters that the issue of whether Shapiro's representations were deceptive is an issue of material fact that cannot be resolved in a motion for summary judgment.

“CUTPA provides in relevant part that ‘[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.’  General Statutes § 42-110b(a).   Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers (or competitors or other businessmen) ․ Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy ․

“An act or practice is deceptive if three conditions are met.   First, there must be a representation, omission, or other practice likely to mislead consumers.   Second, the consumers must interpret the message reasonably under the circumstances.   Third, the misleading representation, omission, or practice must be material-that is, likely to affect consumer decisions or conduct ․ Whether a practice is unfair and thus violates CUTPA is an issue of fact.”   (Citations omitted;  internal quotation marks omitted.)  Miller v. Guimares, supra, 78 Conn.App. 775.

As stated above, there is a question of fact with respect to whether Shapiro knew that the Klever was a “fake.”   If he did, then there would be a legitimate question of whether failing to disclose, notwithstanding the plaintiff's ability to inspect and authenticate the paintings before and after the auction, constitutes an unfair and deceptive practice.   The plaintiff correctly points out that this determination is a question to be determined by the trier of fact.   Moreover, although not well articulated, the plaintiff has brought up a question of fact with respect to whether Shapiro knew that it would not be possible for him to authenticate the paintings within the contractual window.   For instance, Shapiro promised to deliver the paintings to the local UPS store upon payment.   However, the evidence shows that UPS first contacted the plaintiff regarding shipping arrangements on May 20, 2006, the authentication deadline.   In addition, the plaintiff has submitted terms and conditions from two other auction houses that offer buyers more time for authentication.   If the industry is aware of the difficulties that arise in international auctions, the implication is that it may be an unfair trade practice to operate otherwise.   Accordingly, the court must deny the defendants' motion for summary judgment with respect to the CUTPA count against Shapiro.

VII. Sixth Count:  Civic Theft

Finally, the court addresses whether there is a question of fact with respect to the plaintiff's claim of “civic theft,” or more commonly referred to as civil theft.⁷  The defendants argue that the plaintiff's claim for civil theft merely incorporates the allegations of the previous counts.   Thus, they argue that, because those claims fail, the civil theft count must also fail.   In the same vein, the plaintiff argues that because there is an issue of material fact as to his conversion claims, it follows that there is an issue of fact regarding the allegation of civil theft.  General Statutes § 52-564 provides:  “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”  “The elements that the [plaintiff] must prove to obtain treble damages under the civil theft statute, § 52-564, are the same as the elements required to prove larceny, pursuant to General Statutes § 53a-119 ․ The elements of civil theft are also largely the same as the elements to prove the tort of conversion, but theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion ․ A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner ․ It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner ․ The essential cause of action is a wrongful exercise of dominion over personal property of another.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Sullivan v. Delisa, 101 Conn.App. 605, 619-20, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007).

As stated above, there is an issue of fact with respect to whether the Klever is authentic and whether Shapiro failed to disclose this to the plaintiff.   Thus there is a question of fact regarding whether he wrongfully obtained the plaintiff's property.   Moreover, the question of Shapiro's intent is to be determined by the fact finder.   Accordingly, the court must deny the defendants' motion for summary judgment with respect to the claim of civil theft against Shapiro.

CONCLUSION

For the foregoing reasons, the court grants the motion for summary judgment with respect to all counts against the defendant Gass. Additionally, the court grants the motion for summary judgment with respect to the first and third counts against Shapiro, and denies the motion with respect to the second, fourth, fifth and sixth count against Shapiro.

Hale, JTR.

FOOTNOTES

FN1. A provenance is the ownership history of valued artwork.   See Webster's Collegiate Dictionary (10th Ed.1993)..  FN1. A provenance is the ownership history of valued artwork.   See Webster's Collegiate Dictionary (10th Ed.1993).

FN2. There is a question of fact with respect to whether the plaintiff inquired about another painting.   The e-mail exchange submitted by the plaintiff shows that he only inquired about the Klever.   However, in an affidavit, the plaintiff attests that he inquired about both the Klever and another item listed as a Russian oil painting by Nikolai Sverchkov..  FN2. There is a question of fact with respect to whether the plaintiff inquired about another painting.   The e-mail exchange submitted by the plaintiff shows that he only inquired about the Klever.   However, in an affidavit, the plaintiff attests that he inquired about both the Klever and another item listed as a Russian oil painting by Nikolai Sverchkov.

FN3. The e-mail exchange states that Shapiro agreed to give additional time for the Klever.   However, in his deposition testimony, the plaintiff claims that the extension was for the Sverchkov..  FN3. The e-mail exchange states that Shapiro agreed to give additional time for the Klever.   However, in his deposition testimony, the plaintiff claims that the extension was for the Sverchkov.

FN4. It is unclear whether Shapiro was referring to the Tretyakov State Gallery in Moscow, Russia.   See http://www.tretyakovgallery.ru/en/ (accessed June 28, 2010)..  FN4. It is unclear whether Shapiro was referring to the Tretyakov State Gallery in Moscow, Russia.   See http://www.tretyakovgallery.ru/en/ (accessed June 28, 2010).

FN5. Neither party objected to the admissibility of the evidence submitted.   The general rule is that, “[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005).   Our Supreme Court, however, has recognized that parties may “knowingly [waive] compliance with the procedural provisions of the Practice Book relating to motions for summary judgment.”  Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003).   Our Supreme Court has also stated, “[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.”  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).   Therefore, as in a trial, some Superior Court judges will accept and consider the evidence in a motion for summary judgment if there has been no objection.   See, e.g., American Home Assurance Co. v. Scalise, Superior Court, judicial district of New Britain, Docket No. CV 980491778 (December 18, 2000, Shapiro, J.) (28 Conn. L. Rptr. 647);  see also Martin v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4002886 (January 17, 2007, Tobin, J.).   Accordingly, this memorandum has considered all of the evidence submitted by the parties..  FN5. Neither party objected to the admissibility of the evidence submitted.   The general rule is that, “[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005).   Our Supreme Court, however, has recognized that parties may “knowingly [waive] compliance with the procedural provisions of the Practice Book relating to motions for summary judgment.”  Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003).   Our Supreme Court has also stated, “[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.”  Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003).   Therefore, as in a trial, some Superior Court judges will accept and consider the evidence in a motion for summary judgment if there has been no objection.   See, e.g., American Home Assurance Co. v. Scalise, Superior Court, judicial district of New Britain, Docket No. CV 980491778 (December 18, 2000, Shapiro, J.) (28 Conn. L. Rptr. 647);  see also Martin v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4002886 (January 17, 2007, Tobin, J.).   Accordingly, this memorandum has considered all of the evidence submitted by the parties.

FN6. Section 34-214 provides:  “Any claim not barred pursuant to Sections 34-212 and 34-213 may be enforced by a claimant, legal representative or assignee against:  (1) The dissolved limited liability company to the extent of its undistributed assets, or (2) if the assets of a dissolved limited liability company have been distributed in liquidation, against one or more members of the dissolved limited liability company to the extent of their pro rata shares of the claim or the assets of the limited liability company distributed to them in liquidation, whichever is less, but no member's total liability for all claims under this section shall exceed the total amount of assets distributed to that member.”.  FN6. Section 34-214 provides:  “Any claim not barred pursuant to Sections 34-212 and 34-213 may be enforced by a claimant, legal representative or assignee against:  (1) The dissolved limited liability company to the extent of its undistributed assets, or (2) if the assets of a dissolved limited liability company have been distributed in liquidation, against one or more members of the dissolved limited liability company to the extent of their pro rata shares of the claim or the assets of the limited liability company distributed to them in liquidation, whichever is less, but no member's total liability for all claims under this section shall exceed the total amount of assets distributed to that member.”

FN7. In determining whether the facts would support a cause of action, the facts, and not the label affixed to them by the parties, are dispositive.   Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.)..  FN7. In determining whether the facts would support a cause of action, the facts, and not the label affixed to them by the parties, are dispositive.   Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.).

Hale, Robert J., J.T.R.