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Michael Schulze v. Rocky Fella's, LLC
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 122, MOTION TO STRIKE # 123 AND MOTION TO STRIKE # 124
FACTS
On October 21, 2009, the plaintiff, Michael Schulze, filed an amended complaint against the defendants, Rocky Fella's, LLC, Kenneth Large, Linda Large and Martin Meltzer, seeking a dissolution of Rocky Fella's and an accounting of the corporation's assets. In response to the amended complaint, Kenneth Large, Linda Large and Martin Meltzer each filed an answer and counterclaims against Schulze, alleging breach of contract, corporate misconduct and conversion.1
On February 9, 2010, Schulze filed a motion to strike (# 122) counts two through eight of Meltzer's second amended counterclaim and a motion to strike (# 123) counts two through eight of Kenneth Large's second amended counterclaim. He also moved to strike paragraphs one, two and five through nine of Meltzer's and Kenneth Large's prayers for relief. On February 9, 2010, Schulze also filed a motion to strike (# 124) counts two through six of Linda Large's amended counterclaim, and paragraphs one, two and four though six of her prayer for relief. On March 15, 2010, Meltzer filed a memorandum in opposition to Schulze's motion to strike. All parties appeared at short calendar on March 29, 2010. At this time, Kenneth Large and Linda Large objected to Schulze's motions to strike, and they expressly adopted the arguments set forth by Meltzer in his memorandum in opposition.
DISCUSSION
“[A] plaintiff can [move to strike] a ․ counterclaim.” Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). “[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action ․ A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim.” (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008). “It is fundamental that in determining the sufficiency of a complaint challenged by a ․ motion to strike, [that] all well-pleaded facts ․ are taken as admitted.” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
Compliance with Practice Book § 10-41
Before addressing the merits of Schulze's motions to strike, the court must first address the counterclaimants' argument that the court should deny Schulze's motions to strike for his failure to comply with the Practice Book. “Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency ‘shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.’ Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective ․ and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself.” (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). “Simply stating that all of the counts ‘are legally insufficient’ and that they ‘fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10-41.” Id., 862.
In the present case, Schulze seeks to strike count two from Meltzer's and Kenneth Large's counterclaims on the ground that the count “fails to allege the necessary elements of promissory estoppel.” Merely saying that Meltzer and Kenneth Large failed to allege a legally sufficient claim of promissory estoppel does not distinctly specify the reason or reasons for the claimed insufficiency. Accordingly, Schulze's motions to strike count two of Meltzer's and Kenneth Large's counterclaims are hereby denied.
Schulze has also moved to strike paragraphs one, two and five through nine of Meltzer's and Kenneth Large's prayers for relief and has moved to strike paragraphs one, two and four through six from Linda Large's prayer for relief on the ground that the defendants “seek relief to which the defendant[s] ․ [are] not entitled.” 2 While “Practice Book ․ § 10-39, allows for a claim for relief to be stricken ․ if the relief sought could not be legally awarded;” Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998); the party that filed the motion to strike must comply with the requirements of Practice Book § 10-41. The reason or reasons why the relief sought cannot be awarded must be distinctly specified on the face of the moving party's motion. Merely stating that the claimant is seeking “relief to which the defendant is not entitled” is not sufficient. Accordingly, Schulze's motions to strike the defendants' prayers for relief are denied.
Schulze's remaining challenges to the defendants' counterclaims comply with Practice Book § 10-41 and will therefore be considered below.
Mismanagement of New Age Rock's Books and Business Accounts
In count two of Linda Large's amended counterclaim and in count three of Meltzer's and Kenneth Large's second amended counterclaims, the defendants allege the following relevant facts. Meltzer, Kenneth Large, Linda Large and Schulze formed the limited liability company New Age Rock, LLC for the purpose of owning and managing the business On the Rocks Pub & Grill, located at 36 Main Street, Versailles, Connecticut. Meltzer, Kenneth Large, Linda Large and Schulze also formed the limited liability company Rocky Fella's, LLC for the purpose of owning, renovating and managing the commercial property and rental units located at 36 Main Street, Versailles, Connecticut. To fund the renovation of the property at 36 Main Street (the Rocky Fella's project), all members of Rocky Fella's agreed to and entered into a promissory note for a construction loan in the amount of approximately $400,000 with Eastern Federal Bank.
At the inception of the business ventures, Schulze insisted that he maintain and control the books and business accounts of Rocky Fella's and New Age Rock. All other members agreed, as long as Schulze supplied them with monthly reports and maintained the books in good and proper order. From January 2006 to January 2008, Schulze assured the members of Rocky Fella's and New Age Rock that the books and accounts of the companies would be properly managed and reconciled monthly, with the members receiving monthly accountings. Schulze failed to satisfy his assurances to the members, and upon physically obtaining the books and accounts of the companies, Meltzer, Kenneth Large and Linda Large found the following: (1) great discrepancies in the accounts receivables and expenditures; (2) an unorthodox method of accounting that did not properly keep track of receivables, expenditures and profits and losses; (3) errors that made the membership liable for $100,000 in tax liability; (4) un-deposited revenues; (5) sub-accounts in the name of Schulze that received moneys for the two companies, for which accountings were never provided to the membership; and (6) a complete mismanagement of the books and accounts of Rocky Fella's and New Age Rock. The failure of Schulze to properly maintain the books and accounts of New Age Rock was a major contributing cause for the failure of the limited liability company. The members of New Age Rock unanimously agreed to close On the Rocks Pub & Grill and dissolved the limited liability company. Because of Schulze's mismanagement of the books and accounts of New Age Rock, Meltzer, Kenneth Large and Linda Large now seek the return of their $10,000 investments, lost rent and profits from On the Rocks Pub and Grill and future profits from New Age Rock.
Schulze has moved to strike this count from the defendants' counterclaims on the ground that Meltzer, Kenneth Large and Linda Large have not alleged actionable conduct pursuant to General Statutes § 34-141. Schulze contends that § 34-141 bars an action by one member against another member on the ground of management unless management duties were expressly assigned by the operating agreement. Because the defendants have failed to allege that New Age Rock's management duties, including the management of the company's books, were assigned to Schulze in the operating agreement, Schulze contends the counterclaims should be stricken. Meltzer, Kenneth Large and Linda Large object on the ground that they have alleged facts which demonstrate that Schulze was assigned the management responsibilities of keeping the books and records of New Age Rock pursuant to the agreement of all members of the company. Further, the defendants object on the ground that they have alleged facts which demonstrate that Schulze did not act in good faith or as a reasonably prudent person in a like position would have acted in keeping the books and accounts of New Age Rock.
General Statutes § 34-141(a) provides that “[a] member or manager shall discharge his duties under section 34-140 and the operating agreement,3 in good faith, with the care an ordinary prudent person in a like position would exercise under similar circumstances, and in the manner he reasonably believes to be in the best interests of the limited liability company, and shall not be liable for any action taken as a member or manager, or any failure to take such action, if he performs such duties in compliance with the provisions of this section.” Further, “[i]n discharging his duties under section 34-140 and the operating agreement, a member or manager shall not be liable to the limited liability company or to any other member for actions or failures to act based on his good faith reliance on the provisions of the “operating agreement.” General Statutes § 34-141(d).
In the present case, Meltzer, Kenneth Large and Linda Large have neglected to allege that Schulze was assigned specific management duties under the operating agreement with respect to New Age Rock's books and accounts. Absent such an allegation, the management duties of New Age Rock's books and accounts are charged to all members of the limited liability company. The defendants cannot bring a claim seeking to hold Schulze liable for mismanagement of the books, which allegedly included neglecting to deposit revenues, failing to account for all expenditures and receivables, and making errors that led to $100,000 in tax liability, without first alleging that Schulze was assigned such duties under the operating agreement. For this reason, the court grants Schulze's motion to strike count two of Linda Large's amended counterclaim and grants Schulze's motions to strike count three of Meltzer's and Kenneth Large's second amended counterclaims.
Mismanagement of Rocky Fella's Books and Business Accounts
In count three of Linda Large's amended counterclaim and in count four of Meltzer's and Kenneth Large's second amended counterclaims, the defendants reallege the above mentioned facts regarding the mismanagement of Rocky Fella's books and accounts, and they seek to recover lost income of more than $75,000 for the delay in the completion of the Rocky Fella's project. Schulze has moved to strike the defendants' counterclaims on the ground that the counterclaims do not allege facts constituting any cause of action. Schulze argues that the defendants have merely realleged what had already been pleaded in previous counts and added one new fact-”the completion of Rocky Fella's Project was delayed for more than a year causing a loss of income [of] more than $75,000.” The defendants maintain that they have properly alleged a cause of action for mismanagement of the corporate books and records of Rocky Fella's.
The court hereby grants Schulze's motion to strike count three of Linda Large's amended counterclaim and grants his motions to strike count four of Meltzer's and Kenneth Large's second amended counterclaims for the reasons discussed above. The defendants cannot bring a claim seeking to hold Schulze liable for damages stemming from the mismanagement of Rocky Fella's books and accounts without first alleging that Schulze was assigned such management duties pursuant to the operating agreement.
Billing by Schulze Landscaping
In count five of their second amended counterclaim, Meltzer and Kenneth Large allege the following relevant facts. Schulze owns a company called “Schulze Landscaping.” Schulze, individually, and not as an agent of Rocky Fella's, hired Schulze Landscaping to perform unauthorized work on the Rocky Fella's project. The work performed by Schulze Landscaping, under the control and supervision of Schulze, was unnecessary, unauthorized and was not included as a budget item in the estimate for the building renovation at the Rocky Fella's project site. Schulze, by and through Schulze Landscaping, billed Rocky Fella's for alleged work done by Schulze Landscaping. The billing was vague and did not provide the information which is customary for the work done. Even though it was requested, a proper itemized billing was never provided.
Schulze has moved to strike this counterclaim on the ground that “[c]ount [f]ive fails to allege any harm to defendant[s] Meltzer [and Kenneth Large].” Meltzer and Kenneth Large argue that the count sets forth a viable claim for corporate misconduct. In his written objection to Schulze's motion to strike count five, Meltzer argues that “Schulze, without authorization and not as an agent of Rocky Fella's, LLC, hired himself individually, and/or Schulze Landscaping (owned by him) to perform unauthorized work on the Rocky Fella's project. He later billed the corporation which depleted its resources to the detriment of the Rocky Fella's project and caused financial damages to [his] investment.”
“In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The court cannot consider facts imported from outside the record. See Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008). For this reason, the court cannot consider any argument made by Meltzer or Kenneth Large that the billing by Schulze or Schulze Landscaping depleted Rocky Fella's resources or caused damages to the defendants' investments in the Rocky Fella's project. The court is limited to those facts alleged, and, as it is pleaded, count five of Meltzer's and Kenneth Large's second amended counterclaim does not allege that the defendants suffered harm.4 Accordingly, Schulze's motion to strike count five of Meltzer's second amended counterclaim and his motion to strike count five of Kenneth Large's second amended counterclaim is hereby granted.5
Rocky Fella's Project Delay
In count four of Linda Large's amended counterclaim and in count six of Meltzer's and Kenneth Large's second amended counterclaims, the defendants allege the following relevant facts. Schulze, the owner of a company called “Schulze Landscaping,” individually and not as an agent of Rocky Fella's, hired Schulze Landscaping to perform unauthorized work on the Rocky Fella's project. The work performed by Schulze Landscaping, under the control and supervision of Schulze, was sub-standard, unnecessary and unauthorized and was not included as a budget item in the estimate for the building renovation in the Rocky Fella's project. Schulze, by and through Schulze Landscaping, billed Rocky Fella's for alleged work done by Schulze Landscaping. The billing for the unauthorized work diminished the funds available for the Rocky Fella's project. Schulze's actions caused the Rocky Fella's project to substantially run over budget, which caused Eastern Federal Bank to stop disbursing the construction loan funds. As a result of the discontinuation of the funds, the Rocky Fella's project stalled and the building deteriorated significantly throughout the winter months. Of particular note was a roof that was structurally unsound and leaked, as well as windows that leaked both water and cold air infiltration. As a result of the deterioration, the building, which was the major asset of Rocky Fella's suffered extreme depreciation in value, thereby financially damaging the defendants.
Schulze moved to strike this counterclaim on the ground that “depending on interpretation, [the count] either fails to allege harm to [the] defendant[s] or fails to allege actionable conduct pursuant to C.G.S. § 34-141.” Schulze contends that while the exact nature of this count is unclear, the defendants appear to be alleging one of two things: (1) the landscaping work done by Schulze or by another agent of Schulze Landscaping was substandard and this substandard work led to a billing that ultimately caused harm to the defendants, or (2) Schulze mismanaged the affairs of Rocky Fella's when he made an unauthorized decision to hire and accept bills from Schulze Landscaping, which ultimately caused harm to the defendants. Regardless, Schulze contends that the defendants cannot maintain their cause of action as they have not alleged how a mere billing for services rendered caused harm to the defendants. Further, with respect to whether Schulze mismanaged Rocky Fella's affairs in hiring and accepting bills from Schulze Landscaping, Schulze contends that the defendants “cannot allege mismanagement without alleging that ․ [Schulze] was charged with management [under] ․ the operating agreement.” Meltzer, Kenneth Large and Linda Large maintain, however, that they have adequately alleged a claim for corporate misconduct. They contend that they have alleged facts sufficient to hold Schulze liable for the mismanagement of Rocky Fella's business as they have alleged that Schulze hired and made payments on behalf the limited liability company to Schulze Landscaping as a way of tunneling funds away from Rocky Fella's.
The court hereby grants Schulze's motions to strike count four of Linda Large's amended counterclaim and count six of Meltzer's and Kenneth Large's second amended counterclaims. The defendants have failed to allege facts demonstrating how receiving a billing for landscaping services caused harm to the defendants. Although Meltzer argues in his memorandum of law in opposition to Schulze's motion to strike that Schulze made payments on behalf of Rocky Fella's to Schulze Landscaping as a way of tunneling funds away from Rocky Fella's, Meltzer, Kenneth Large and Linda Large do not make such allegations within their complaint. Absent allegations of payment by Schulze, on behalf of Rocky Fella's, the defendants' counterclaims fail to allege harm actionable under § 34-141.
Lost Income of Pub
In count five of Linda Large's amended counterclaim and in count seven of Meltzer's and Kenneth Large's second amended counterclaims, the defendants reallege the above facts regarding Schulze's decision to hire Schulze Landscaping. In addition to the harm alleged above, the defendants allege that the physical deterioration of the building substantially contributed to the decline and loss of business of On the Rocks Pub & Grill. The defendants allege that the discomfort of the patrons played a significant cause in the decision to close the pub. The closing of the pub caused the defendants the loss of their investment in New Age Rock, LLC, rental fees, and a loss of profits and future profits that might have been derived from New Age Rock, LLC.
Schulze has moved to strike this counterclaim on the ground that it fails to allege facts constituting a new cause of action. Schulze argues that the defendants have merely realleged what has already been pleaded in previous counts and has sought to add additional consequences or damages in this count. Schulze contends that even if the additional consequences were true, they do not amount to an independent cause of action.
For the reasons stated above, the court grants Schulze's motion to strike count five of Linda Large's amended counterclaim and grants his motions to strike count seven of Meltzer's and Kenneth Large's second amended counterclaims. The defendants cannot maintain their cause of action without alleging facts demonstrating how receiving a billing for landscaping services caused harm to the defendants.
Conversion by Schulze
In count six of Linda Large's amended counterclaim and in count eight of Meltzer's and Kenneth Large's second amended counterclaims the defendants allege the following pertinent facts. Schulze, by or through Schulze Landscaping, without authorization, removed, sold or traded materials from the Rocky Fella's project site. Schulze never gave an accounting or remuneration for the material or property owned by Rocky Fella's, even though the defendants made numerous requests. Those materials improperly removed from the Rocky Fella's project site were assets of Rocky Fella's, LLC. Schulze is liable for an accounting of the material removed and for repayment to Rocky Fella's for any money or financial gain drawn from the materials removed.
Schulze moves to strike this count on the ground that the defendants have not alleged any conduct by the plaintiff. Schulze contends that the defendants' claims must fail because they seek to hold him liable for actions taken “by or through Schulze Landscaping” without alleging facts that would allow them to pierce the corporate veil of Schulze Landscaping. The defendants contend, however, that they have adequately alleged the tort of conversion, and that it is not necessary to pierce the corporate veil as Schulze can be held individually liable for his tortious behavior.
As an initial matter, the court notes that the defendants' counterclaims do not allege that Schulze Landscaping is a corporation. Rather, the defendants merely allege that Schulze “owns an excavation company named ‘Schulze Landscaping.’ “ Because there was no allegation that Schulze Landscaping was incorporated as a limited liability company or that it holds itself out as a corporate entity, the court need not consider whether the defendants have alleged facts sufficient to pierce the corporate veil. The court need only determine if the defendants have alleged conduct on behalf of the plaintiff that is sufficient to maintain a cause of action for conversion.
“The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights ․ Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm ․ The term owner is one of general application and includes one having an interest other than the full legal and beneficial title.” (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).
In the present case, the defendants have alleged conduct on behalf of Schulze. The defendants have alleged that Schulze, without authorization, removed, sold or traded materials and assets belonging to Rocky Fella's, LLC. Accordingly, Schulze's motion to strike count six of Linda Large's amended counterclaim and his motions to strike count eight of Meltzer's and Kenneth Large's second amended counterclaims are hereby denied.
CONCLUSION
For the foregoing reasons, the court denies Schulze's motion to strike (# 122) counts two and eight, as well as paragraphs one, two and five through nine, of Meltzer's second amended counterclaim, but grants Schulze's motion to strike counts three, four, five, six and seven of Meltzer's second amended counterclaim.
The court also denies Schulze's motion to strike (# 123) counts two and eight, as well as paragraphs one, two and five through nine, of Kenneth Large's second amended counterclaim, but grants Schulze's motion to strike counts three, four, five, six and seven of Kenneth Large's second amended counterclaim.
The court denies Schulze's motion to strike (# 124) count six and paragraphs one, two and four through six of Linda Large's amended counterclaim, but grants Schulze's motion to strike counts two, three, four and five of Linda Large's amended counterclaim.
Martin, J.
FOOTNOTES
FN1. Linda Large filed a six-count amended counterclaim on December 21, 2009. Meltzer filed an eight-count second amended counterclaim on January 19, 2010. Kenneth Large filed an identical eight-count second amended counterclaim on January 20, 2010. Although Linda Large's counterclaim contains two fewer counts than her co-counterclaimants, the allegations contained in all three counterclaim complaints are essentially the same in nature. Meltzer, Kenneth Large and Linda Large will be referred to collectively as “the defendants.”. FN1. Linda Large filed a six-count amended counterclaim on December 21, 2009. Meltzer filed an eight-count second amended counterclaim on January 19, 2010. Kenneth Large filed an identical eight-count second amended counterclaim on January 20, 2010. Although Linda Large's counterclaim contains two fewer counts than her co-counterclaimants, the allegations contained in all three counterclaim complaints are essentially the same in nature. Meltzer, Kenneth Large and Linda Large will be referred to collectively as “the defendants.”
FN2. Meltzer and Kenneth Large seek to recover the following damages in their prayers for relief: “(1) [An order requiring] Schulze to reimburse ․ [the] members of Rocky Fella's, LLC the total amount of ․ Schulze's financial obligations to Rocky Fella's, LLC with interest; (2) [an order requiring] Schulze to pay damages to ․ [the defendants] for loss of ․ [their] rental fees, potential profits, and any consequent damage as the result of the failure of New Age Rock, LLC ․ (5) [an order requiring] Schulze to provide a proper accounting of the books and accounts of Rocky Fella's and New Age Rock while they were under his control and supervision; (6) [an order requiring] Schulze to provide a proper accounting and reimbursement of payment for any and all unauthorized work done by him individually or through Schulze Landscaping; (7) [an order requiring] Schulze to provide an accounting and payment of revenue derived from unauthorized removal of materials from the Rocky Fella's Project; (8) [an order requiring] Schulze to pay ․ [the defendants] the additional funds with interest [that the defendants] ․ had to extend to pay for ․ Schulze's breach of contract; and (9) an award of the following money damages with interest (a) compensatory, (b) punitive, (c) consequential losses, (d) fees and costs and (e) such other relief the [c]ourt deems appropriate.”Linda Large seeks to recover the following damages in her prayer for relief: “(1) [An order requiring] Schulze to reimburse Linda Large and the other members of Rocky Fella's, LLC the total amount of ․ Schulze's financial obligations to Rocky Fella's, LLC with interest; (2) [an order requiring] Schulze to pay damages to ․ Linda Large for loss of ․ her rental income and any consequent damage as a result of the failure of New Age Rock, LLC. (4) [an order requiring] Schulze to provide an accounting and payment of revenue derived from [the] unauthorized removal of materials from the Rocky Fella's Project; (5) [an order requiring] Schulze to provide an accounting and reimbursement of payment for any and all unauthorized work done by him individually or through Schulze Landscaping; and (6)[an] award [of] money damages to Linda Large for any consequential losses, attorneys fees and costs and such other relief the [c]ourt deems appropriate.”. FN2. Meltzer and Kenneth Large seek to recover the following damages in their prayers for relief: “(1) [An order requiring] Schulze to reimburse ․ [the] members of Rocky Fella's, LLC the total amount of ․ Schulze's financial obligations to Rocky Fella's, LLC with interest; (2) [an order requiring] Schulze to pay damages to ․ [the defendants] for loss of ․ [their] rental fees, potential profits, and any consequent damage as the result of the failure of New Age Rock, LLC ․ (5) [an order requiring] Schulze to provide a proper accounting of the books and accounts of Rocky Fella's and New Age Rock while they were under his control and supervision; (6) [an order requiring] Schulze to provide a proper accounting and reimbursement of payment for any and all unauthorized work done by him individually or through Schulze Landscaping; (7) [an order requiring] Schulze to provide an accounting and payment of revenue derived from unauthorized removal of materials from the Rocky Fella's Project; (8) [an order requiring] Schulze to pay ․ [the defendants] the additional funds with interest [that the defendants] ․ had to extend to pay for ․ Schulze's breach of contract; and (9) an award of the following money damages with interest (a) compensatory, (b) punitive, (c) consequential losses, (d) fees and costs and (e) such other relief the [c]ourt deems appropriate.”Linda Large seeks to recover the following damages in her prayer for relief: “(1) [An order requiring] Schulze to reimburse Linda Large and the other members of Rocky Fella's, LLC the total amount of ․ Schulze's financial obligations to Rocky Fella's, LLC with interest; (2) [an order requiring] Schulze to pay damages to ․ Linda Large for loss of ․ her rental income and any consequent damage as a result of the failure of New Age Rock, LLC. (4) [an order requiring] Schulze to provide an accounting and payment of revenue derived from [the] unauthorized removal of materials from the Rocky Fella's Project; (5) [an order requiring] Schulze to provide an accounting and reimbursement of payment for any and all unauthorized work done by him individually or through Schulze Landscaping; and (6)[an] award [of] money damages to Linda Large for any consequential losses, attorneys fees and costs and such other relief the [c]ourt deems appropriate.”
FN3. General Statutes § 34-140(a) provides that “the business, property and affairs of a limited liability company shall be managed by its members.” Management responsibilities may be altered by provisions contained in the operating agreement; General Statutes § 34-140(c); or by an amendment to the articles of organization that vests management of the limited liability company's business, property and affairs in a manager or managers. General Statutes § 34-140(b) and (d). However, absent an amendment to the articles of organization or an agreement set forth in the operating agreement, management duties are shared by all members of the limited liability company.. FN3. General Statutes § 34-140(a) provides that “the business, property and affairs of a limited liability company shall be managed by its members.” Management responsibilities may be altered by provisions contained in the operating agreement; General Statutes § 34-140(c); or by an amendment to the articles of organization that vests management of the limited liability company's business, property and affairs in a manager or managers. General Statutes § 34-140(b) and (d). However, absent an amendment to the articles of organization or an agreement set forth in the operating agreement, management duties are shared by all members of the limited liability company.
FN4. Meltzer and Kenneth Large have failed to allege that they or Rocky Fella's had paid Schulze or Schulze Landscaping for the alleged work done by Schulze Landscaping. Further, Meltzer and Kenneth Large have not alleged financial damages or any other damages as a result of Schulze Landscaping's billing.. FN4. Meltzer and Kenneth Large have failed to allege that they or Rocky Fella's had paid Schulze or Schulze Landscaping for the alleged work done by Schulze Landscaping. Further, Meltzer and Kenneth Large have not alleged financial damages or any other damages as a result of Schulze Landscaping's billing.
FN5. Meltzer and Kenneth Large also argue that they had initially included a damages clause within count five of their original counterclaims but removed it in their second amended counterclaims in response to Schulze's request to revise. They argue that because they removed the damages provision at Schulze's request, Schulze's motions to strike should be denied under the doctrine of equitable estoppel. The court finds Meltzer's and Kenneth Large's argument to be without merit. Practice Book §§ 10-35 through 10-38 govern requests to revise. Pursuant to Practice Book § 10-35, “[w]henever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial, or otherwise improper allegations in an adverse party's pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party's pleading, the party desiring such amendment in an adverse party's pleading may file a timely request to revise that pleading.” Schulze complied with the Practice Book requirements. Had Meltzer or Kenneth Large believed Schulze's request to revise count five was improper, they should have filed an objection to the request and waited upon the court's ruling before filing a substitute pleading. See Practice Book § 10-37.. FN5. Meltzer and Kenneth Large also argue that they had initially included a damages clause within count five of their original counterclaims but removed it in their second amended counterclaims in response to Schulze's request to revise. They argue that because they removed the damages provision at Schulze's request, Schulze's motions to strike should be denied under the doctrine of equitable estoppel. The court finds Meltzer's and Kenneth Large's argument to be without merit. Practice Book §§ 10-35 through 10-38 govern requests to revise. Pursuant to Practice Book § 10-35, “[w]henever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial, or otherwise improper allegations in an adverse party's pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party's pleading, the party desiring such amendment in an adverse party's pleading may file a timely request to revise that pleading.” Schulze complied with the Practice Book requirements. Had Meltzer or Kenneth Large believed Schulze's request to revise count five was improper, they should have filed an objection to the request and waited upon the court's ruling before filing a substitute pleading. See Practice Book § 10-37.
Martin, Robert A., J.
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Docket No: CV094009822
Decided: August 18, 2010
Court: Superior Court of Connecticut.
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