Featherston v. Katchko & Son Construction Services, Inc., 122220 CTCA, AC 42280

Docket Nº:AC 42280
Opinion Judge:MOLL, J.
Party Name:PETER FEATHERSTON v. KATCHKO & SON CONSTRUCTION SERVICES, INC., ET AL.
Attorney:David W. Rubin, with whom was Jonathan D. Jacob-son, for the appellants (defendants). Brenden P. Leydon, with whom, on the brief, was Mark Sank, for the appellee (plaintiff).
Judge Panel:Moll, Alexander and Suarez, Js.
Case Date:December 22, 2020
Court:Appellate Court of Connecticut

PETER FEATHERSTON

v.

KATCHKO & SON CONSTRUCTION SERVICES, INC., ET AL.

No. AC 42280

Court of Appeals of Connecticut

December 22, 2020

Argued September 14, 2020

Procedural History

Action to recover damages for, inter alia, the defendants' alleged fraudulent transfer of assets, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk where the matter was tried to the court, Hon. Taggart D. Adams, judge trial referee; judgment for the plaintiff, from which the defendants appealed to this court; thereafter, the court, Hon. Taggart D. Adams, judge trial referee, granted the plaintiff's motion to amend the complaint and denied the plaintiff's motion for an order of punitive damages, and the defendants amended their appeal. Appeal dismissed in part; reversed in part; judgment directed.

David W. Rubin, with whom was Jonathan D. Jacob-son, for the appellants (defendants).

Brenden P. Leydon, with whom, on the brief, was Mark Sank, for the appellee (plaintiff).

Moll, Alexander and Suarez, Js.

OPINION

MOLL, J.

The defendants, Katchko & Son Construction Services, Inc. (Son Singular), and Katchko & Sons Construction Services, Inc. (Sons Plural), 1 appeal from the judgment of the trial court rendered in favor of the plaintiff, Peter Featherston. On appeal, the defendants claim that the court (1) abused its discretion in granting the plaintiff's motion to amend his second revised complaint, (2) improperly rendered judgment in favor of the plaintiff on counts one and two of his second revised complaint sounding in violations of the Connecticut Uniform Fraudulent Transfer Act (CUFTA), General Statutes § 52-552a et seq., and (3) improperly rendered judgment in favor of the plaintiff on count three of his second revised complaint sounding in a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.2 We dismiss, sua sponte, the defendants' original appeal for lack of a final judgment; see part I of this opinion; and, with respect to the amended appeal, we affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In 2006, the plaintiff commenced a civil action against, among other parties, Katchko Construction Services, Inc., raising claims sounding in, inter alia, breach of contract. See Featherston v.

Tautel & Sons Consulting, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-06-5002924-S (2006 action). On February 7, 2011, while the 2006 action was pending, Robert Katchko, the president of Katchko Construction Services, Inc., filed a certificate of amendment with the Secretary of the State changing the name of Katchko Construction Services, Inc., to Son Singular. On April 17, 2012, the trial court, Tyma, J., rendered judgment in favor of the plaintiff on his breach of contract claim against Son Singular3in the amount of $216, 972.83 (2012 judgment). Son Singular appealed from the 2012 judgment, but the appeal was dismissed on December 12, 2012.

Less than three months after the judgment, on July 1, 2012, Son Singular ceased doing business. On August 6, 2012, a certificate of incorporation was filed with the Secretary of the State forming Sons Plural. On January 27, 2014, Robert Katchko filed a certification of dissolution with the Secretary of the State dissolving Son Singular.

On August 22, 2016, the plaintiff commenced the present action against the defendants. On April 24, 2017, the plaintiff filed a second revised three count complaint. Count one asserted a fraudulent transfer claim under CUFTA, specifically, General Statutes § 52-552e. Count two also asserted a fraudulent transfer claim under CUFTA, specifically, General Statutes § 52-552f. Count three asserted a violation of CUTPA. The crux of the plaintiff's allegations was that Son Singular had transferred all of its assets to Sons Plural in order to prevent the plaintiff from collecting on the 2012 judgment. On January 23, 2018, the defendants filed an answer denying the material allegations of the second revised complaint.

The matter was tried to the court, Hon. Taggart D. Adams, judge trial referee, on January 24 and 25, 2018. During his case-in-chief, the plaintiff introduced several exhibits and elicited testimony from Anthony Branca, an accountant who had performed tax preparation services for the defendants. The plaintiff also testified. On January 25, 2018, after the plaintiff had rested, the defendants orally moved for a judgment of dismissal for failure to make out a prima facie case pursuant to Practice Book § 15-8.4 The court reserved its decision on the motion to dismiss until the parties had an opportunity to file memoranda on the motion. On June 11, 2018, after the parties had submitted their respective memoranda, the court issued a memorandum of decision denying the motion to dismiss, concluding that the plaintiff had established a prima facie case for his fraudulent transfer and CUTPA claims. On July 17, 2018, the parties appeared before the court, and the defendants' counsel represented that the defendants had elected to rest without putting on evidence.

On November 8, 2018, after the parties had submitted their respective posttrial briefs, 5 the court issued a memorandum of decision rendering judgment in favor of the plaintiff on all three counts of his second revised complaint. As to the defendants' violation of CUFTA, the court ordered relief pursuant to General Statutes § 52-552h, including permitting the plaintiff to attach property of the defendants in the amount of the 2012 judgment, plus interest. As relief for the defendants' violation of CUTPA, the court awarded the plaintiff $18, 388 in attorney's fees under CUTPA. On November 14, 2018, the defendants filed their original appeal challenging the November 8, 2018 judgment and the denial of their motion to dismiss.6

On November 28, 2018, the plaintiff filed a motion to amend his second revised complaint, with an accompanying proposed amended complaint filed the same day, to conform the pleadings to the proof adduced at trial (motion to amend). The proposed amended complaint set forth, as a new fourth count, a purported standalone claim for successor liability, and added into the prayer for relief a request for a finding of successor liability. The complaint otherwise was identical to the second revised complaint. On December 27, 2018, the defendants objected to the motion to amend. On January 11, 2019, the plaintiff filed a reply brief. On January 14, 2019, the court granted the motion to amend and overruled the defendants' objection. Thereafter, no motion was filed, and no action was taken by the court, directed to the November 8, 2018 judgment. On January 24, 2019, the defendants filed an amended appeal to encompass the court's granting of the motion to amend. Additional facts and procedural history will be set forth as necessary.

I

As a preliminary matter, we address, sua sponte, whether the defendants' original appeal filed on November 14, 2018, was taken from a final judgment.7 ‘‘The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. . . . The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear. . . . We therefore must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.'' (Citations omitted; internal quotation marks omitted.) Wolfork v. Yale Medical Group, 335 Conn. 448, 459, 239 A.3d 272 (2020). We conclude that the original appeal was not taken from a final judgment, and, therefore, we lack subject matter jurisdiction to entertain it. We nonetheless conclude that the defendants' amended appeal, filed on January 24, 2019, is jurisdictionally proper and encompasses all of their claims on appeal.

Our jurisdictional analysis is governed by Perkins v.

Colonial Cemeteries, Inc., 53 Conn.App. 646, 734 A.2d 1010 (1999). In Perkins, this court dismissed, for lack of a final judgment, an appeal challenging the denials of the defendants' postverdict motions because, although the defendants had been found liable under CUTPA by a jury, the trial court had not yet ruled on the plaintiff's request for punitive damages under CUTPA. Id., 649; see also Hylton v.

Gunter, 313 Conn. 472, 487 n.15, 97 A.3d 970 (2014) (citing Perkins in explaining that ‘‘statutory punitive damage awards, which in many cases may be awarded in addition to attorney's fees and costs . . . present unique final judgment considerations'' (citation omitted)).

In the present case, the plaintiff requested punitive damages under CUTPA8 in his second revised complaint and in his posttrial brief.9 In rendering judgment in favor of the plaintiff on his CUTPA claim, the court made no mention of punitive damages; instead, the court awarded the plaintiff $18, 338 in attorney's fees upon its determination that the attorney's fees requested were reasonable and compensable under CUTPA.10 On November 29, 2018, after the defendants had filed their original appeal, the plaintiff filed a motion requesting that the court award punitive damages, which the court summarily denied on January 14, 2019.11

Under Perkins, a final judgment was not rendered in this matter until January 14, 2019, when the court denied the plaintiff's motion for punitive damages. Therefore, the defendants' original appeal, filed on November 14, 2018, was not taken from a...

To continue reading

FREE SIGN UP