George Linardos v. Stephen Cuomo et al. (2012)

MEMORANDUM OF DECISION

This matter is before the court as a hearing in damages resulting from the granting of a summary judgment as to liability only as to all the defendants, Stephen Cuomo, Green Energy Solutions, LLC, Clark Curtis, Matthew Smith, Timothy Duffy, Richard McAuliffe, Jr., Peter Derouen and Robert E. Flaherty.

The complaint consists of twelve counts.

First Count against Cuomo for breach of fiduciary duties.

Second Count against the individual defendants for breach of their fiduciary duties.

Third Count against Cuomo for fraud.

Fourth Count against Cuomo for negligent misrepresentations.

Fifth Count against Cuomo for innocent misrepresentations.

Sixth Count against Cuomo for tortuous interference.

Seventh Count against all defendants for breach of contract.

Eighth Count against all defendants for breach of implied covenant of good faith and fair dealing.

Ninth Count against all defendants for declaratory judgment.

Tenth Count against all defendants if the removal of Linardos from GES is deemed valid.

Eleventh Count against all defendants for declaratory judgment if the removal of Linardos from GES is deemed valid.

Twelfth Count against Cuomo and all individual defendants.

The plaintiff has not briefed the claim for a declaratory judgment alleged in the eleventh count and thus it is deemed abandoned.

Exhibits 2, 3, and 4 are billed to Grey Park Associates LLC, an entity that is not a party to this action and therefore a judgment on these bills against the defendant would be inappropriate since the complaint does not allege that Grey Park was the alter ego of Cuomo.

There was testimony by the plaintiff that the claims represented by Exhibits 2, 3, 4 and 5 are personal obligations of the defendant Cuomo.   A fair reading of the plaintiff's twelve count complaint does not indicate that these bills were alleged to be the personal obligations of Cuomo.

An award of damages is controlled by the allegations of the complaint ․ The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to apposing parties ․ It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint ․ The purpose of a complaint is to limit the issues at trial ․ Facts found but not averred cannot be made the basis for a recovery.  Argentinis v. Fortuna, 134 CA 538, 549.

Exhibit 5 is a bill from Northstar Strategies LLC. Northstar is not a party to this case so the court cannot consider this as an element of the plaintiff's damages.

Except for the claims for damages documented in Exhibits 2 thru 5 there is no other alleged evidence of damages.   Plaintiff's claim of damages resulting from the meeting of August 1, 2007 that was held in plaintiff's absence is without evidence of damages.   There is no evidence of the value of plaintiff's interest in Green Energy Solutions on August 1, 2007.   Without such evidence there is no way to determine what damage, if any, was sustained by the plaintiff because of the actions taken by the defendants on August 1, 2007.   The summary judgment established liability but it was still the burden of the plaintiff to prove his damages by credible evidence.   See Stamford Landing Condominium Ass'n, Inc. v. Lermen, 109 Conn.App. 261, 272.   The court awards One Dollar in nominal damages on each count claiming damages.

The plaintiff also claims attorneys fees and disbursement based on the finding of liability resulting from the entry of summary judgment on all counts of the plaintiff's complaint that allege fraud or a breach of fiduciary duty.   This would include Counts One and Two for breach of fiduciary duty by all the defendants and Count Three for fraud by Cuomo.   The total amount of plaintiff's claim for attorney's fees and disbursement contained in plaintiff's post-hearing in damages memorandum dated October 19, 2011 is $74,167.75.   See Exhibit 11.

The authority to overcome the so-called American rule wherein each party is responsible for its own attorney's fees is cited by the plaintiff as Whitaker v. Taylor, 99 Conn.App. 719, 730–31 (2007), for claims of fraud and for breach of a fiduciary duty, Certo v. Fink, Superior Court, District of Hartford No. CV0740276588, August 19, 2011.   The court deems it appropriate that the claim for attorney's fees should be reserved, subject to the parties being heard as to the amount of a reasonable attorney's fee based on the liability resulting from the summary judgment on counts one, two and three.   The parties may schedule argument on a mutual agreed date during the month of July 2012.

STODOLINK, J.T.R.

Stodolink, Edward F., J.T.R.