Falcigno v. Falcigno

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DAVID FALCIGNO v. STEPHEN FALCIGNO
(AC 42047)
Lavine, Bright and Sheldon, Js.*

Syllabus

The plaintiff sought to recover damages for breach of fiduciary duty from
the defendant, his brother, in connection with his sale of shares repre-
senting a minority interest in a family business, S Co. The parties were
often at odds with each other, and the plaintiff approached the defendant
about selling his shares of S Co. to him. The parties ultimately agreed
on a price of $200,000 for the plaintiff’s shares. The defendant stated
that he would revisit the compensation he had paid if he later sold S
Co. for ‘‘millions.’’ More than one year later, the defendant sold S Co.
for $8 million. Subsequently, although the plaintiff and the defendant
arranged to meet, they were unable to agree on the plaintiff’s request
for additional compensation. Following a trial to the court, the trial
court found in favor of the defendant on all counts of the plaintiff’s
complaint and in favor of the plaintiff on a counterclaim brought by the
defendant, from which the plaintiff appealed and the defendant cross
appealed to this court. Held:
1. The plaintiff could not prevail on his claim that the trial court’s finding
that the defendant proved by clear and convincing evidence that he
engaged in fair dealing and full disclosure was clearly erroneous and
was inconsistent with its finding that the defendant had made false
representations to the plaintiff that S Co. was a ‘‘dinosaur’’ and was
falling apart; the court rejected the plaintiff’s claims of misrepresenta-
tion, which the plaintiff had not claimed as error, and the evidence
demonstrated that the plaintiff knew that his shares would be worth
more if and when the defendant sold S Co., he knew that his shares
were worth more at the time he sold them to the defendant, the plaintiff
wanted to sell his shares to remove himself from family disputes, he
willingly accepted only $200,000 because he was planning to build a
new home and that this was his mistake, not based on misrepresentations
made by the defendant, the court clearly found that this ‘‘misrepresenta-
tion’’ was not material and that it was not truly a misrepresentation,
and that the plaintiff did not rely on the defendant’s representation that
S Co. was a ‘‘dinosaur.’’
2. The plaintiff could not prevail on his claim that the trial court erred in
finding that the defendant proved by clear and convincing evidence that
he engaged in fair dealing and full disclosure as to his purchase of the
plaintiff’s minority shares of S Co. stock when the evidence demon-
strated that the defendant failed to disclose all relevant information to
the plaintiff, including that he was applying a minority discount to his
purchase of the plaintiff’s shares, and that he would be seeking to profit
from the purchase of those shares upon a future sale of S Co., as the
trial court’s finding that the defendant had met his burden of proving
fair dealing by clear and convincing evidence was not clearly erroneous;
the court specifically found that the defendant explained to the plaintiff
the significance of the minority discount in practical terms, and the
evidence demonstrated that the defendant told the plaintiff that he did
not need his shares because he already had control of S Co., and that
the defendant disclosed all relevant information and gave the plaintiff
access to S Co.’s financial documents and tax returns and advised him
to speak to S Co.’s accountant, and was honest and fair in his interaction
with the plaintiff.
3. The plaintiff could not prevail on his claim that the evidence demonstrated
that the defendant did not prove fair dealing and full disclosure with
clear and convincing evidence under each of the four requirements
set forth in Konover Development Corp. v. Zeller (228 Conn. 206) for
fiduciaries, as the Zeller framework, which permits a more relaxed
fiduciary duty in certain situations, was inapplicable: given that the
Zeller framework is more forgiving to the fiduciary than is the traditional
analysis applied by the court, this court failed to see how the plaintiff
could have benefitted from its application; moreover, the court fully
considered, while applying the correct legal test, all of the facts relied
on by the plaintiff in support of his breach of fiduciary claim.
4. The trial court did not improperly render judgment in favor of the plaintiff
on the defendant’s counterclaim seeking attorney’s fees pursuant to a
certificate of satisfaction signed by the plaintiff when he transferred his
shares to the defendant, as the language of the certificate was clear and
unambiguous, and, pursuant to the plain language, it did not apply to
the case; read in its entirety, the language of the certificate clearly set
forth the plaintiff’s obligation to defend his interest and rights in the
shares from claims made by third parties to those shares, and to hold
the defendant harmless and to protect him from such third-party claims,
and the plaintiff properly characterized the certificate as applicable only
to a third-party claim challenging the plaintiff’s unencumbered interest,
title, and right to his shares and his absolute right to sell his shares to
the defendant.
Argued March 4—officially released August 25, 2020

Procedural History

Action to recover damages for, inter alia, breach of
fiduciary duty, and for other relief, brought to the Supe-
rior Court in the judicial district of New Haven, where
the defendant filed a counterclaim; thereafter, the court,
Ecker, J., granted in part the defendant’s motion for
summary judgment; subsequently, the matter was tried
to the court, Hon. Thomas J. Corradino, judge trial
referee; judgment for the defendant on the complaint
and for the plaintiff on the counterclaim, from which
the plaintiff appealed and the defendant cross appealed
to this court. Affirmed.
Chet L. Jackson, for the appellant-cross appellee
(plaintiff).
Barbara M. Schellenberg, with whom was Robert R.
Lewis, for the appellee-cross appellant (defendant).
Opinion

BRIGHT, J. Following a trial to the court, the plaintiff,
David Falcigno, appeals from the judgment of the trial
court rendered in favor of the defendant, Stephen Fal-
cigno, on his cause of action for breach of fiduciary
duty. The defendant cross appeals from the judgment
of the court, rendered in favor of the plaintiff, on the
defendant’s counterclaim for breach of the representa-
tions and warranties contained in an agreement signed
by the plaintiff. In his appeal, the plaintiff claims that
the court erred in finding that the defendant proved,
by clear and convincing evidence, fair dealing and full
disclosure as to the defendant’s purchase of the plain-
tiff’s minority shares of stock. In his cross appeal, the
defendant claims that the court improperly failed to
award him attorney’s fees pursuant to the agreement
that the plaintiff signed as part of the stock transaction.
We affirm the judgment of the trial court.
The following facts, as found by the court, Hon.
Thomas J. Corradino, judge trial referee, or as uncon-
tested in the record, and the relevant procedural history
assist in our review of the parties’ claims. The parties,
who are brothers, and another brother, Richard Fal-
cigno, together owned individual shares of stock, which
totaled 100 percent of all the stock in a family business,
Statewide Meats and Poultry, Inc. (Statewide). The
defendant owned 60 percent of the shares, with each
of his brothers owning 20 percent of the shares. Over
the years, the defendant, who operated Statewide,
allowed his brothers to get free gas and meat from the
business, and, from approximately 2005 forward, the
defendant paid each of his brothers a $14,000 yearly
consulting fee, although there was no evidence that
they rendered any services in exchange for those fees.1
The plaintiff was aware, since at least 2005, of the
defendant’s ultimate goal to sell Statewide. The broth-
ers often were at odds with each other, and, in 2009,
the plaintiff told the defendant that he wanted to sell
his shares of Statewide to the defendant so that he
could escape the turmoil and be brothers again with
the defendant; he also needed money to build a house.2
The defendant told the plaintiff to contact Matthew
Giglietti, the certified public accountant for Statewide,
who also is a cousin of, and the personal accountant
for, the parties and their brother, Richard, and to get
whatever he needed from Giglietti.3 He encouraged the
plaintiff to exercise due diligence with regard to the
proposed stock sale and told the plaintiff that he could
have access to anything he wanted for that purpose.
The defendant acknowledged at trial that Giglietti had
Statewide’s balance sheets, ledgers, payroll records,
and tax returns.
The plaintiff obtained and reviewed Statewide’s tax
returns, and he discussed selling his shares with Gig-
lietti, telling him that he just wanted the fighting to end
and that he thought selling his shares to the defendant
might accomplish that end. Giglietti repeatedly advised
the plaintiff not to sell his shares. Giglietti told the
plaintiff that he estimated that Statewide was worth $2
million. The plaintiff was aware that Statewide had a
certified Angus beef license (CAB license),4 and that it
repeatedly won awards for being part of the ‘‘million
pound club’’ for substantial sales of high quality beef.
He also was aware of Statewide’s customer base. The
plaintiff had access to Statewide’s balance sheet for
2008, and he had Statewide’s tax returns going back
several years before 2009, which indicated $17 million
to $18 million in gross annual sales, which, the court
found, ‘‘could only result from a strong customer base.’’
On September 9, 2009, the plaintiff and the defendant
met at Luce Restaurant (Luce), along with the family’s
personal stock and bond broker, Fred Mueller, to dis-
cuss the terms of the sale. The plaintiff initially stated
that he wanted $450,000 to $500,000 for his shares, and
the defendant initially offered $100,000. The defendant
explained to the plaintiff that because he was the major-
ity shareholder and already controlled Statewide, he
did not need the plaintiff’s shares. After discussions,
the parties ultimately agreed on a price of $200,000,
and the defendant stated that he would revisit the com-
pensation or cut the plaintiff back in if he later sold
Statewide ‘‘for millions.’’5
The defendant asked Statewide’s attorney, Mark
Sklarz, to draft the necessary paperwork for the stock
transfer. Sklarz drafted documents, including, a certifi-
cate of purchase, a stock power form, a certificate of
satisfaction, and an affidavit of lost certificate.6 Sklarz
then provided the plaintiff with the certificate of pur-
chase and the stock power form, so that he could sign
the documents and have them notarized, which he did
on October 9, 2009. On October 13, 2009, the plaintiff
and the defendant met at Sklarz’ office to close the sale.
In connection with the closing of the sale, the plaintiff
executed the certificate of satisfaction. The certificate
of purchase signed by the plaintiff indicated that the
sale price of the shares was $200,000. After the parties
finished their business with Sklarz, the defendant gave
the plaintiff a paper bag containing $50,000 in cash.7
The court found that ‘‘there [was] not an iota of evidence
[that] the defendant over the years, since he had made
it his goal to sell Statewide, ever tried to induce the
plaintiff to sell his shares.’’
Around September, 2010, at a certified Angus beef
conference, a representative of Sysco Corporation
(Sysco) approached the defendant and asked if he might
be interested in selling Statewide. The defendant told
the representative to call him if Sysco was interested
in buying the company. In January, 2011, a representa-
tive of Sysco met with the defendant. A few months
later, Sysco sent the defendant a letter of intent, indicat-
ing that it was interested in purchasing Statewide. Fol-
lowing subsequent negotiations, Sysco ultimately made
a firm offer of $8 million, consisting of $6 million up
front and an additional $2 million earn-out if Statewide
maintained a certain level of sales.8 Sklarz testified that
he was ‘‘substantially surprise[d]’’ by the offer because
it ‘‘was substantially in excess . . . of what [the defen-
dant and he] . . . anticipated.’’ He also testified that
they had thought that Statewide was worth ‘‘somewhere
in the neighborhood of two to three million dollars
based on the financial statements . . . .’’ The sale
closed on August 12, 2011.9 Giglietti testified that it
appeared that Sysco was not ‘‘terribly interested in the
[Statewide] operation itself. As a matter of fact, they
closed it up soon [after the sale] so they didn’t care
about [the] equipment or [the] trucks or anything like
that. I think the main thing they were looking for was
the customers, and, quite frankly, they were looking at
the CAB license.’’
In or around April, 2012, the plaintiff and the defen-
dant arranged to meet at the Quinnipiac Club in New
Haven. The plaintiff was surprised because the defen-
dant brought Attorney Jeffrey Hellman to their meeting.
Hellman testified that the defendant offered the plaintiff
a ‘‘gift’’ of $100,000, but the plaintiff stated that he was
entitled to more and requested $250,000. By the end of
the meeting, Hellman believed that the plaintiff was
going to accept the $100,000, and, within a day or two,
he drafted an agreement for the parties to sign.
On June 1, 2012, the plaintiff and the defendant met
at Mueller’s office, where the defendant was to give the
plaintiff the $100,000 ‘‘gift.’’ After the parties arrived,
the defendant asked the plaintiff to sign the agreement
prepared by Hellman, which provided in relevant part:
‘‘David Falcigno . . . hereby releases Stephen Fal-
cigno . . . of and from any and all actions . . . claims
. . . agreements, promises . . . or demands . . . of
any kind whatsoever including, but not limited to any
claims concerning the shares of Statewide . . . from
the beginning of the world to the date of this agree-
ment.’’ It does not appear that the plaintiff signed the
agreement. Unbeknownst to the defendant and Mueller
at the time, the plaintiff made an audio recording of
this meeting.
On October 5, 2012, the plaintiff commenced the pres-
ent action. His June 14, 2013 revised complaint was
brought in ten counts: Count one, breach of contract;
count two, promissory estoppel; count three, fraudulent
concealment; count four, fraudulent misrepresentation;
count five, negligent misrepresentation; count six,
breach of fiduciary duty; count seven, breach of the
implied covenant of good faith; count eight, unjust
enrichment; count nine, unlawful conversion; and count
ten, statutory theft in violation of General Statutes § 52-
564. At the time of trial, five of the plaintiff’s counts
remained viable, namely, breach of contract, fraudulent
concealment, fraudulent misrepresentation, negligent
misrepresentation, and breach of fiduciary duty. The
defendant also had a counterclaim that remained viable,
namely, breach of the representations and warranties
contained in the certificate of satisfaction signed by the
plaintiff when he conveyed his shares to the defendant.
In a very thorough memorandum of decision, the court
found in favor of the defendant on all counts of the
plaintiff’s complaint and in favor of the plaintiff on the
defendant’s counterclaim. This appeal and cross appeal
followed. Additional facts will be set forth as necessary.
I
THE PLAINTIFF’S APPEAL
The plaintiff claims that the court erred in rendering
judgment in favor of the defendant on the plaintiff’s
cause of action for breach of fiduciary duty.10 Specifi-
cally, he argues that the court erred in finding that the
defendant proved by clear and convincing evidence that
he engaged in fair dealing and full disclosure as to his
purchase of the plaintiff’s minority shares of Statewide
stock. We are not persuaded.
The trial court’s determination of whether a party
breached his fiduciary duty is a factual finding, and,
therefore, we apply the clearly erroneous standard of
review when assessing that finding. Spector v. Konover,
57 Conn. App. 121, 126, 747 A.2d 39, cert. denied, 254
Conn. 913, 759 A.2d 507 (2000). ‘‘A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that
a mistake has been committed.’’ (Internal quotations
marks omitted.) Id., 126–27.
‘‘In determining whether the court’s decision was
clearly erroneous, we must examine the court’s deci-
sion in the context of the heightened standard of proof
imposed on a fiduciary.’’ Id., 127. ‘‘Once a [fiduciary]
relationship is found to exist, the burden of proving
fair dealing properly shifts to the fiduciary. . . . Fur-
thermore, the standard of proof for establishing fair
dealing is not the ordinary standard of fair preponder-
ance of the evidence, but requires proof either by clear
and convincing evidence, clear and satisfactory evi-
dence or clear, convincing and unequivocal evidence.
. . . Proof of a fiduciary relationship, therefore, gener-
ally imposes a twofold burden on the fiduciary. First,
the burden of proof shifts to the fiduciary; and second,
the standard of proof is clear and convincing evidence.’’
(Internal quotation marks omitted.) Papallo v. Lefebvre,
172 Conn. App. 746, 754, 161 A.3d 603 (2017). ‘‘Although
we have not expressly limited the application of these
traditional principles of fiduciary duty to cases involv-
ing only fraud, self-dealing or conflict of interest, the
cases in which we have invoked them have involved
such deviations.’’ (Emphasis omitted.) Murphy v.
Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998).
‘‘Although not always expressly stated, the basis upon
which the aforementioned burden-shifting and
enhanced burden of proof rests is, essentially, that
undue influence will not be presumed . . . and that
the presumption of fraud does not arise from the rela-
tionship itself. We note, however, that [this] rule is
somewhat relaxed in cases where a fiduciary relation
exists between the parties to a transaction or contract,
and where one has a dominant and controlling force
or influence over the other. In such cases, if the supe-
rior party obtains a possible benefit, equity raises a
presumption against the validity of the transaction or
contract, and casts upon such party the burden of prov-
ing fairness, honesty, and integrity in the transaction
or contract. . . . Therefore, it is only when the confi-
dential relationship is shown together with suspicious
circumstances, or where there is a transaction, con-
tract, or transfer between persons in a confidential or
fiduciary relationship, and where the dominant party is
the beneficiary of the transaction, contract, or transfer,
that the burden shifts to the fiduciary to prove fair
dealing.’’ (Citation omitted; emphasis in original; inter-
nal quotation marks omitted.) Heaven v. Timber Hill,
LLC, 96 Conn. App. 294, 303–304, 900 A.2d 560 (2006).
In the present case, there is no dispute as to whether
the defendant, as the president and majority share-
holder of Statewide, had a fiduciary relationship with
the plaintiff, a minority shareholder. The court also
found, and we agree, that the defendant derived a bene-
fit from obtaining the plaintiff’s shares, and, therefore,
the burden of proving fair dealing shifted to the defen-
dant. We, therefore, need assess only whether the
court’s finding that the defendant had proven, by clear
and convincing evidence, that he acted in a fair and
honest manner in his transaction with the plaintiff was
clearly erroneous. We conclude that the court’s finding
was not clearly erroneous.
‘‘The intentional withholding of information for the
purpose of inducing action has been regarded . . . as
equivalent to a fraudulent misrepresentation. . . . An
officer and director occupies a fiduciary relationship
to the corporation and its stockholders. . . . He occu-
pies a position of the highest trust and therefore he is
bound to use the utmost good faith and fair dealing in
all his relationships with the corporation. . . . Not
honesty alone, but the punctilio of an honor the most
sensitive, is then the standard of behavior. . . . It is
essential to the validity of a contract between a fiduciary
and a beneficiary concerning matters within the scope
of that relationship that a full disclosure be made of
all relevant facts which the fiduciary knows or should
know. . . . [T]hese high standards [are what] the law
demands of fiduciaries.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Pacelli Bros.
Transportation, Inc. v. Pacelli, 189 Conn. 401, 407–408,
456 A.2d 325 (1983).
‘‘Majority or controlling stockholders have a duty not
to take advantage of the minority in purchasing the
latter’s shares. Accordingly, majority stockholders,
when purchasing the stock of minority stockholders,
are under a duty to disclose to them all material facts
known to the majority stockholders by virtue of their
position. Thus, a majority shareholder making an offer
to purchase all remaining outstanding stock owes a
fiduciary duty to minority shareholders, which requires
complete candor in disclosing fully all of the facts and
circumstances surrounding such tender offer; and the
correct standard requires disclosure of all germane
facts rather than mere disclosure of adequate facts.
‘‘Absent nondisclosure, fraud, or oppression, a major-
ity shareholder has no duty to pay a ‘fair’ price for
shares. A shareholder in a closely held corporation does
not breach the shareholder’s fiduciary duties to the
second shareholder by failing to disclose the true value
of the corporation when the second shareholder sold
their interest to the first shareholder, where there is no
evidence that the first shareholder knew the true value
of the corporation, and the second shareholder was
advised, but refused, to obtain an appraisal. However,
a majority stockholder may be held accountable as a
fiduciary, where he or she is in active charge of corpo-
rate affairs and induces a minority stockholder to sell
his or her holdings, concealing the true condition of
corporate finances for the purpose of making a personal
profit, or failing to reveal an offer from a prospective
purchaser for the purchase of all of the stock of the
corporation at a price which is higher than that offered
to the minority holder.’’ (Footnotes omitted.) 18A Am.
Jur. 2d 529–30, Corporations § 662 (2015).
In the present case, the plaintiff argues that the court
erred in finding that the defendant proved by clear and
convincing evidence that he engaged in fair dealing
and full disclosure as to his purchase of the plaintiff’s
minority shares of Statewide stock because the defen-
dant (1) made false representations to the plaintiff by
telling him that the Statewide facility at Long Wharf
was a ‘‘dinosaur’’ and was falling apart, and (2) failed
to disclose relevant information to the plaintiff and
applied a minority discount when he purchased the
plaintiff’s shares. He also argues that the court’s analysis
of his claim was inadequate under the four requirements
of Konover Development Corp. v. Zeller, 228 Conn. 206,
635 A.2d 798 (1994). We will consider each of these
arguments in turn.
A
The plaintiff argues that the court’s finding that the
defendant proved fair dealing and full disclosure was
clearly erroneous and inconsistent with its finding that
the defendant had made false representations to the
plaintiff that Statewide was a ‘‘dinosaur’’ and was falling
apart. He argues that ‘‘it must be highlighted that the
trial court found ‘the defendant represented, falsely by
implication, that Statewide was a dinosaur, [and] he
would only offer $200,000 for the plaintiff’s shares
because the place was falling apart.’ ’’ (Emphasis omit-
ted.) He contends that ‘‘it was misleading for the defen-
dant to tell the plaintiff he would not pay close to the
plaintiff’s asking price of $450,000 because the State-
wide Long Wharf facility was old and falling apart. . . .
[The defendant introduced] no evidence . . . that the
overall physical condition of the meat businesses had
any bearing on Sysco targeting businesses with the CAB
license.’’ (Citations omitted.) The defendant argues that
the court found that the defendant had established that
his representation of Statewide as a ‘‘dinosaur’’ was
meaningless in light of the situation, and, therefore, this
representation was not relevant to the defendant’s fair
dealing. We agree with the defendant.
Judge Corradino rejected the plaintiff’s misrepresen-
tation claims, and the plaintiff did not appeal from that
aspect of the judgment. The court specifically reasoned:
‘‘For the court at least the misrepresentation claim is
not convincing. At the meeting at Luce Restaurant
where the putative sale of the plaintiff’s shares was first
discussed in some detail, the plaintiff said he wanted
$450,000 to $500,000 for his shares. But the defendant
represented, falsely by implication, that Statewide was a
dinosaur, he would only offer $200,000 for the plaintiff’s
shares because the place was falling apart. Also the
defendant said to the plaintiff that he was only a minor-
ity shareholder, the plaintiff’s 20 percent ownership
interest compared to the defendant’s 60 percent owner-
ship interest. The defendant had no need to buy the
plaintiff’s shares since he already owned a majority
interest in Statewide.
‘‘Leaving aside the possibility of a sale and looking
at Statewide as an operating business, it is difficult to
conclude the defendant misrepresented. The court has
examined the tax filings for 2003 through 2007, and
the balance sheet for 2008, the year before the sale of
Statewide to Sysco. The gross receipts are in the range
of $17 million to $18 million but when one takes account
of expenses the taxable income is never higher than
$131,000. The 2008 balance sheet shows net income
before taxes was only $67,275.17. The plaintiff testified
one year showed a loss. [Giglietti], who worked as a
CPA for Statewide for over twenty years said a meat
business like Statewide is not an easy business, you
work on a ‘small margin’ and it is not a business to
make a lot of money in, profits fluctuate.
‘‘But more to the point Sysco in fact bought Statewide
for $8 million over a year and a half after the plaintiff
sold his shares to the defendant. Giglietti testified that
the only way to put a value on a business like Statewide
is what someone is willing to pay for it. Sysco did not
confine itself to profit margins for the existing State-
wide business operations. Giglietti, who was involved
in the sale of Statewide to Sysco, testified Sysco deter-
mined what to offer based on gross sales, Statewide’s
CAB license (license to sell high quality meat), and
mainly Statewide’s customer list. There is nothing to
indicate the defendant misrepresented any of these mat-
ters to the plaintiff.
‘‘Even more importantly the plaintiff always knew
the defendant intended to sell Statewide—he knew this
since 2005, at least. Giglietti and Attorney Sklarz both
testified Statewide was worth in their opinion, between
two and four million dollars upon sale. Giglietti was
[the plaintiff’s] accountant, [and was] also the accoun-
tant for everyone in the family and for Statewide. The
plaintiff was asked if Giglietti ever told him what State-
wide was worth in 2009. The plaintiff first said he did
not remember then said he was told it was worth around
$2 million. He said Giglietti may have told him this
before 2009—i.e., the sale of his shares.
‘‘In the context of the foregoing it is not possible
to conclude that the plaintiff was misled about the
defendant’s description of the business from a day to
day operational point of view as a dinosaur and in
that context his shares were not even worth $100,000.
The point is that there was a prospect of a sale which
both parties were well aware of and both parties knew
that, that sale might reap much more money for share-
holders. Thus, at the Luce meeting the plaintiff asked
what would happen if Statewide was sold—he knew
exactly that if it did and he retained his shares he could
get much more than $200,000. The defendant’s response
was if Statewide sells for millions I’ll cut you back in
according to the plaintiff. How on earth can it be said
that the defendant misrepresented what the worth of
Statewide was in the context of a commodity the defen-
dant, as the plaintiff well knew, intended to sell? It was
in this regard [Giglietti] told the plaintiff not to sell his
shares. He reasoned that if a buyer came along one
could take into account what the buyer offered and
could get much more for his shares than could be gar-
nered from just accepting an offer for his shares prior
to any sale. Later in his testimony, Giglietti was asked
if he specifically told the plaintiff this reasoning. His
response was: ‘You know, I’m sure I might [have]. I
definitely told him not to sell and those would be the
reasons I would have told him not to sell.’
‘‘Finally it is interesting to note that the plaintiff did
his own due diligence to see what he would ask for his
shares at Luce. He said based on the shareholder’s
equity in the tax documents and his 20 percent owner-
ship of Statewide shares he arrived at his figure of
$450,000 to $500,000. Oddly enough this is roughly about
20 percent of the two or three million Giglietti and
Attorney Sklarz, Statewide’s attorney, said Statewide
was worth at the time of the sale of the plaintiff’s shares.
That he accepted only $200,000 and relied on a general-
ized cut you back in or revisit language was his mistake
not based on misrepresentations as to Statewide’s value
or, better put, Statewide’s value if it were to be sold
by the defendant but on his desire to remove himself
from the toxic atmosphere engendered by continuing
involvement in Statewide—especially in light of the fact
that he would be receiving $200,000 at the same time
he was constructing a home which ended up having a
value of over $500,000.’’ (Emphasis altered.)
The plaintiff now argues, focusing only on a single
statement by the court that the defendant ‘‘represented,
falsely by implication, that Statewide was a dinosaur,’’
that the court erred in concluding that the defendant
proved he engaged in fair dealing because the court
found that the defendant made a misrepresentation. We
are not persuaded.
First, the court rejected the plaintiff’s claims of mis-
representation, which the plaintiff has not claimed as
error, specifically holding that ‘‘it is difficult to con-
clude the defendant misrepresented’’ and that ‘‘it is not
possible to conclude that the plaintiff was misled about
the defendant’s description of the business from a day
to day operational point of view as a dinosaur . . .
.’’ (Emphasis added.) Second, the court found that the
evidence demonstrated that the plaintiff knew that his
shares would be worth more if and when the defendant
sold Statewide, and he knew that his shares were worth
more at the time he sold them to the defendant, having
asked for $450,000 after being told by Giglietti that the
company was worth $2 million and that he should not
sell his shares. Third, the court also found that the
evidence demonstrated that the plaintiff wanted to sell
his shares to remove himself from family disputes,11
that he willingly accepted only $200,000 at the same
time he was looking to build a $500,000 home, and that
this was ‘‘his mistake not based on misrepresenta-
tions’’ made by the defendant. (Emphasis added.)
Fourth, the court clearly found that this ‘‘misrepresenta-
tion’’ was not material and that it was not truly a misrep-
resentation. As to the operation of the business, the tax
returns showed little income and showed some losses.
The record also demonstrates that after Sysco bought
Statewide, it closed the old facility and moved to a
new, larger facility in Rhode Island. Further, the court
concluded that the plaintiff did not rely on the defen-
dant’s representation that Statewide was a ‘‘dinosaur’’
because he knew the company had value if it was sold,
and Giglietti told him it would be worth more if sold
later. Accordingly, the defendant’s statement that State-
wide was a ‘‘dinosaur’’ has no bearing on whether he
proved that he engaged in fair dealing when he pur-
chased the plaintiff’s shares.
B
The plaintiff also argues that the defendant failed to
meet his burden of proof because the evidence demon-
strated that the defendant failed to disclose all relevant
information to the plaintiff, including that he was
applying a minority discount to his purchase of the
plaintiff’s shares, and that he would be seeking to profit
from the purchase of those shares upon a future sale
of Statewide.12 The defendant argues that he provided
the plaintiff with all relevant information, including
explaining in layman’s terms that he was applying a
minority discount, giving him access to Statewide’s
financial documents, and telling him to talk to Giglietti
and to do due diligence. The defendant also argues
that the evidence clearly demonstrated that the plaintiff
knew that his shares would be worth more than the
defendant was offering if and when the defendant found
a buyer for Statewide. We agree with the defendant.
The court specifically found that the defendant
explained to the plaintiff ‘‘the significance of the minor-
ity discount . . . in practical terms.’’ This finding is
supported by clear and convincing evidence, which
demonstrates that the defendant told the plaintiff that
he did not need his shares because he already had
control of Statewide. ‘‘The purpose of a minority dis-
count is to adjust for lack of control over the business
entity on the theory that [noncontrolling] shares of
stock are not worth their proportionate share of the
firm’s value because they lack voting power to control
corporate actions.’’ (Internal quotation marks omitted.)
Swope v. Siegel-Robert, Inc., 243 F.3d 486, 495 (8th Cir.),
cert. denied, 534 U.S. 887, 122 S. Ct. 198, 151 L. Ed. 2d
139 (2001).
The evidence further demonstrated that the defen-
dant gave the plaintiff access to Statewide’s financial
documents and told him to talk to Giglietti and to do
due diligence. The tax returns that the plaintiff obtained
from Giglietti showed ‘‘gross profits in the millions
which of course depended on a strong customer base.’’
The court also found that, according to the plaintiff’s
own testimony, he ‘‘knew what a CAB license was
. . . .13 The plaintiff said he examined the tax docu-
ments and took 20 percent of the shareholder’s equity
to formulate his demand of $450,000 to $500,000 which
he initially presented to the defendant at Luce when sale
of the plaintiff’s [shares] was first formally discussed.’’
(Footnote added.) Additionally, although the plaintiff
testified at trial that he had no hesitation about talking
to Giglietti, the court explained that when the plaintiff
picked up the returns, he ‘‘did not ask Giglietti about
the prospective sale and its desirability. His response
as to why this was so seems to be that Giglietti was
always busy and if he ever asked Giglietti anything, it
would get back to the defendant who would raise a
ruckus.’’ The court could not understand the plaintiff’s
professed reluctance in light of the fact that the defen-
dant specifically had told the plaintiff to talk to Giglietti
and to do due diligence. The fact that the plaintiff failed
to make full use of Giglietti’s knowledge is not the fault
of the defendant, who specifically urged him to do due
diligence and to talk to Giglietti. See generally Pacelli
Bros. Transportation, Inc. v. Pacelli, supra, 189 Conn.
408 (‘‘Where a party realizes he has only limited informa-
tion upon the subject of a contract, but treats that
knowledge as sufficient in making the contract he is
deemed to have assumed the risk of a mistake. 1
Restatement (Second), Contracts § 154.’’).
Further, the court noted that ‘‘Giglietti said share-
holder’s equity is not a good basis for valuation of a
company such as Statewide. A company such as State-
wide receives an accurate valuation based on what a
buyer is willing to pay for it. But both Sklarz and Giglietti
estimated [that] the value of Statewide in 2009, before
Sysco’s offer, was two million dollars or three million.
The initial demand the plaintiff came up with [was]
close to 20 percent of a two million valuation figure.’’
The court further noted that the plaintiff, in his posttrial
brief, ‘‘argued that the defendant made no representa-
tions during the negotiations about the value of State-
wide or the plaintiff’s interest. But Giglietti told [the
plaintiff that] the company was worth two million. And
he certainly knew his 20 percent would be worth more
than the $200,000 he was being offered, if Statewide
sold, which he knew had been the defendant’s goal for
years. In fact, he asked the defendant at Luce, what if
Statewide sold—the defendant responded, if it sells for
millions, I will revisit the matter or cut you back in
. . . .’’ The court also found that Giglietti, the accoun-
tant for Statewide and the personal advisor of the plain-
tiff, specifically and repeatedly told the plaintiff not to
sell his shares.
On the basis of the foregoing, the court found that
the defendant had explained in layman’s terms to the
plaintiff that he was applying a minority discount to his
potential purchase of the plaintiff’s shares and that the
plaintiff knew about the possibility of a future sale and
that it would be more advantageous to him if he did
not sell his shares at that time. The court found that
‘‘the plaintiff, having received a $200,000 offer at Luce,
knew by the very asking of the question—what if State-
wide sells—that if he kept his shares, they would be
worth more, and the defendant’s comment of cutting
back in or revisiting the matter only confirmed what
he already knew.’’ It also found that the defendant dis-
closed all relevant information because he gave the
plaintiff full access to Giglietti and the financial docu-
ments and tax returns of Statewide. If the plaintiff had
questions or needed more information, he certainly
could have and should have inquired.
The court found that the evidence demonstrated that
the defendant was honest and fair in his interaction
with the plaintiff, that he gave the plaintiff access to
whatever he needed, including Giglietti, and that the
plaintiff made his own decision. The evidence demon-
strates that no one, including Giglietti, Sklarz, or the
defendant, had any idea that Sysco or anyone else would
offer $8 million for Statewide; Giglietti and Sklarz each
had valued Statewide at approximately $2 million, and
they genuinely were surprised by the offer in 2011, with
Giglietti testifying that he would not have imagined an
$8 million offer ‘‘in [his] wildest dreams.’’ Here, the
court reasoned that ‘‘none of the [defendant’s] actions
. . . [could] be characterized as a plot to force the
plaintiff to sell his shares at a reduced price because
of [some] imminent sale. There were just ongoing ten-
sions in this family, apparently, for a variety of reasons.
There was no evidence . . . that in the fifteen years
before the defendant bought the plaintiff’s shares [the
defendant] even suggested the shares be sold to him
although he had a goal of selling Statewide for years.
The plaintiff made the first specific mention of wanting
to do that in a heated June, 2009 call that had nothing
to do with Statewide . . . . Besides, what kind of
orchestrated squeeze takes place when one of the par-
ties receives free gas and meat on a weekly basis and
$14,000 a year for consultation fees when no consulta-
tion has taken place.’’ All in all, the court ultimately
found that the plaintiff wanted to sell his shares to the
defendant and that the plaintiff’s ‘‘real motive was to
be bought out from Statewide because of the toxicity
of the relations that he felt were engendered by this
family business at a time when he could use any monies
he received for his shares to help construct his new
house.’’ We conclude that the court’s finding that the
defendant had met his burden of proving fair dealing
by clear and convincing evidence was not clearly
erroneous.
C
Although conceding that Zeller does not apply in this
case, and specifically stating that he ‘‘is not himself
invoking the Zeller standard,’’ the plaintiff, neverthe-
less, also argues that the evidence demonstrates that the
defendant did not ‘‘prove fair dealing and full disclosure
with clear and convincing evidence under each of the
four requirements in [Konover Development Corp. v.
Zeller, supra, 228 Conn. 206] for fiduciaries.’’ He also
argues that the defendant failed to prove fair dealing
because he created an ambiguity regarding the terms
of the stock purchase when he told the plaintiff that
he would cut him back in or revisit the compensation
if he sold Statewide for millions. We agree with the
parties that the Zeller framework is inapplicable, and
we decline to consider the ambiguity argument because
it was not raised before the trial court and is inconsis-
tent with the arguments raised by the plaintiff in his
posttrial brief to the trial court.14 See generally Lopiano
v. Stamford, 22 Conn. App. 591, 594, 577 A.2d 1135
(1990) (‘‘[o]ur role on review is to decide whether the
trial court’s decision is clearly erroneous in view of the
evidence and pleadings in the record; Practice Book
§ 4061 [now § 60-5]; and we must dispose of a case on
the theory on which it was tried and decided’’).
It is noteworthy to mention that, although the plaintiff
cited to Konover Development Corp. v. Zeller, supra,
228 Conn. 219, once in his seventy-five page posttrial
brief to the trial court, specifically for the purpose of
characterizing the degree of trust in a fiduciary relation-
ship, he neither raised nor argued to the trial court that
the court should apply the framework adopted by our
Supreme Court in Zeller; see Konover Development
Corp. v. Zeller, supra, 227–28 (adopting framework that
is flexible enough, ‘‘in the context of a commercial
limited partnership [to balance the need] . . . to
ensure that partners with diverse interests will be able
to craft and rely on a partnership agreement that reflects
their common interests’’ with ‘‘the principle of fiduciary
honor’’); or used Zeller as a guideline for his analysis.
Nevertheless, we agree with the parties that the Zeller
framework, which permits a somewhat more relaxed
fiduciary duty in certain situations, does not apply to
this case. See id.; Spector v. Konover, supra, 57 Conn.
App. 128; see also Connecticut Civil Jury Instructions
3.8-2 (B) and (C), available at https://www.jud.ct.gov/
JI/Civil/Civil.pdf (last visited August 18, 2020) (differ-
entiating traditional framework from Zeller framework,
which is employed in cases with ‘‘sophisticated, com-
mercial parties’’ wherein ‘‘parties may contractually
agree that the fiduciary will gain some advantage or
benefit at the expense of the principal’’). In any event,
given that the Zeller framework is more forgiving to
the fiduciary than is the traditional analysis applied by
the court, we fail to see how the plaintiff could have
benefitted from its application in this case.
Furthermore, the trial court fully considered, while
applying the correct legal test, all of the facts relied on
by the plaintiff in support of his breach of fiduciary
duty claim. Before the trial court, regarding his claim
of breach of fiduciary duty, the plaintiff argued in his
posttrial brief that the defendant had the burden of
proving fair dealing, and that the defendant failed to
meet that burden because the evidence demonstrated
that he had ‘‘fail[ed] to disclose relevant information
[that he] knew or should have known,’’ ‘‘appl[ied] a
minority discount on the plaintiff’s shares,’’ and ‘‘com-
mit[ted] a ‘freeze-out’ of the plaintiff as a minority share-
holder . . . .’’ See generally Yanow v. Teal Industries,
Inc., 178 Conn. 262, 272 n.6, 422 A.2d 311 (1979) (‘‘a
‘freeze-out,’ [is] defined broadly as any action by those
in control of the corporation which results in the termi-
nation of a stockholder’s interest in the enterprise, with
the purpose of forcing a liquidation or sale of the share-
holder’s share, not incident to some other wholesome
business goal’’ (emphasis in original)).
Judge Corradino, in turn, painstakingly examined
each and every claim and argument raised by the plain-
tiff in his posttrial brief. He analyzed the reasons set
forth by the plaintiff in his burden shifting argument,
and he then shifted the burden to the defendant, and
thoroughly analyzed each and every argument briefed
by the plaintiff. The plaintiff had argued at various
points in his posttrial brief, including in claims other
than his breach of fiduciary duty claim, that the defen-
dant had (1) referred to Statewide as a ‘‘dinosaur,’’ (2)
failed to inform the plaintiff that he could sell his shares
to someone other than the defendant, (3) failed to
explain the significance of the CAB license, (4) failed
to explain Statewide’s customer base, (5) failed to
inform the plaintiff about the potential sale of State-
wide, and (6) failed to tell the plaintiff that he was
applying a minority discount to his purchase of the
plaintiff’s shares and would sell them for more later.
Judge Corradino found that the defendant’s use of
the word ‘‘dinosaur’’ to describe Statewide was, among
other things, not material. See part I A of this opinion.
As for the operation of the business, the tax returns
showed little income and showed some losses. The
record also demonstrates that after Sysco bought State-
wide, it closed the old facility and moved to a new,
larger facility in Rhode Island. Further, the court con-
cluded that the plaintiff did not rely on that representa-
tion because he knew Statewide would have value if
sold, and Giglietti had explained to him that Statewide
would be worth more if sold later and told him that he
should not sell his shares to the defendant.
As for the plaintiff’s alleged right to sell to others,
we decline to address that argument. See footnote 12
of this opinion.
As for Statewide’s CAB license, the court found that
the plaintiff was aware of the license and knew it was
the ‘‘Mercedes Benz’’ of meat. The evidence also demon-
strated that no one knew what the license was worth
and that the defendant, Sklarz, and Giglietti all were
shocked by the amount Sysco offered to purchase State-
wide. In fact, the court stated that ‘‘Giglietti and Sklarz
were astounded by the fact that Sysco offered
$8,000,000 in 2011 to buy Statewide.’’ Additionally, as
to the customer list, the plaintiff knew the customers
because he had worked at the Statewide facility and
was well aware that Statewide had won awards for
being part of the ‘‘million pound club.’’ The plaintiff
had access to Statewide’s balance sheet for 2008, and
he had its tax returns going back several years before
2009, which indicated $17 million to $18 million in sales,
which, the court specifically found, ‘‘could only result
from a strong customer base.’’ He also had access to
Giglietti, and the defendant had encouraged him to talk
to Giglietti and to get whatever he needed to do any
necessary due diligence before selling his shares.
As for the defendant’s alleged knowledge in 2009 of
a potential sale of Statewide, the plaintiff had known
since at least 2005 that the defendant wanted to sell
the company. This was not a secret. The plaintiff also
knew from Giglietti that a sale could generate more
value for him than if he sold to the defendant in 2009,
and that Giglietti, his accountant and the accountant
for Statewide, opined that he should not sell his shares
to the defendant. Furthermore, in 2009, when the defen-
dant offered to purchase the plaintiff’s shares, there
were no pending offers on the table to purchase State-
wide. An initial inquiry came a year later and the aston-
ishing offer from Sysco came months after that. There
was no evidence that the defendant had any basis to
expect such an offer at the time he purchased the plain-
tiff’s shares. On the related issue of purchasing the
plaintiff’s shares at a minority discount with the inten-
tion of selling them for a higher price later, we have
addressed this more fully in part I B of this opinion.
Overall, the trial court made several subordinate find-
ings of fact to support its ultimate finding that the defen-
dant proved by clear and convincing evidence that he
did not act unfairly when he purchased the plaintiff’s
shares. Importantly, the plaintiff has not challenged any
of those subordinate findings, and they are all amply
supported by the evidence.
This is a sad and troubling case because it concerns
family, including at least two brothers, the plaintiff and
the defendant, who apparently once had a close rela-
tionship. After hearing the evidence and considering
the claims and arguments of the parties, the court found
that the brothers often were at odds with each other,
and, in 2009, the plaintiff told the defendant that he
wanted to sell his shares of Statewide to the defendant
so that he could escape the turmoil and be brothers
again with the defendant. The plaintiff also wanted to
sell because he was building a new home and needed the
money. The defendant agreed to purchase the plaintiff’s
shares and told him to speak with Giglietti, to obtain
whatever he needed, to exercise due diligence, and to
come up with a reasonable price. The plaintiff did so,
and the parties negotiated a price, with the defendant
telling the plaintiff he would revisit the money issue if
he sold Statewide for millions. Nearly two years later,
the defendant sold Statewide for an astonishing $8 mil-
lion. When he offered to give the plaintiff another
$100,000, the plaintiff felt it was not enough, and he
brought this action against the defendant. The trial
court determined that the plaintiff’s claims failed on
their merits. The plaintiff, on appeal, has not established
that the court was wrong. On the basis of the foregoing
analysis, we conclude that the court’s finding that the
defendant proved, by clear and convincing evidence,
fair dealing and full disclosure in his purchase of the
plaintiff’s minority shares of stock was not clearly
erroneous.
II
THE DEFENDANT’S CROSS APPEAL
The defendant claims in his cross appeal that the
court improperly rendered judgment in favor of the
plaintiff on the defendant’s counterclaim seeking attor-
ney’s fees pursuant to the certificate of satisfaction
signed by the plaintiff when he transferred his shares
to the defendant. He argues that, ‘‘[a]t the time the
parties executed the contract for [the] defendant’s pur-
chase of [the] plaintiff’s shares, [the] plaintiff signed a
‘certificate of satisfaction, representations and warrant-
ies and indemnification regarding shares of stock’ (cer-
tificate), in which he agreed to ‘hold harmless and pro-
tect the purchaser from and against any claim of any
party with respect to such shares,’ ’’ and that the court,
therefore, erred in refusing to award attorney’s fees.
The plaintiff argues in relevant part that the plain lan-
guage of the certificate applies only to third-party claims
and does not include attorney’s fees.15 We conclude that
the certificate does not apply in the present case.
We begin with our standard of review. ‘‘[W]here there
is definitive contract language . . . the determination
of what the parties intended by their contractual com-
mitments is a question of law. . . . It is implicit in this
rule that the determination as to whether contractual
language is plain and unambiguous is itself a question
of law subject to plenary review.’’ (Citations omitted;
internal quotation marks omitted.) Cruz v. Visual Per-
ceptions, LLC, 311 Conn. 93, 101–102, 84 A.3d 828
(2014).
‘‘[I]n reviewing a claim that attorney’s fees are author-
ized by contract, we apply the well established principle
that [a] contract must be construed to effectuate the
intent of the parties, which is determined from [its]
language . . . interpreted in the light of the situation
of the parties and the circumstances connected with
the transaction. . . . [T]he intent of the parties is to
be ascertained by a fair and reasonable construction
of the written words and . . . the language used must
be accorded its common, natural, and ordinary meaning
and usage where it can be sensibly applied to the subject
matter of the [writing].’’ (Citation omitted; internal quo-
tation marks omitted.) Heyman Associates No. 5, L.P.
v. FelCor TRS Guarantor, L.P., 153 Conn. App. 387,
415, 102 A.3d 87, cert. denied, 315 Conn. 901, 104 A.3d
106 (2014).
In the present case, the certificate provided in rele-
vant part: ‘‘[The plaintiff] was the sole and exclusive
owner of [his] [s]hares, had the absolute right, power
and authority to sell, transfer, assign and convey such
[s]hares to the [defendant], that the [s]hares were not
subject to any pledge, mortgage, lien, security interest,
option, right of first refusal, restriction, contract or
encumbrance of any kind or manner with respect to the
sale, transfer, assignment and conveyance of [s]hares
to the [defendant], and the [plaintiff] will warrant and
defend such interest, title and right to such [s]hares
and hold harmless and protect the [defendant] from
and against any claim of any party with respect to
such [s]hares.’’
We conclude that the language is clear and unambigu-
ous. We further conclude that, pursuant to the plain
language of the certificate, it does not apply in the
present case. In the certificate, the plaintiff agreed that
he was the sole and exclusive owner of his shares, that
they were unencumbered, and that he had the absolute
right to sell them to the defendant. Additionally, the
plaintiff agreed and warranted that he would ‘‘defend
such interest, title and right to such shares’’; (emphasis
added); and hold the defendant harmless and protected
from and against any claim made with respect to such
shares. Read in its entirety, this language clearly sets
forth the plaintiff’s obligation to defend his interest and
rights in the shares from claims made by third parties
to those shares, and to hold the defendant harmless
and to protect him from such third-party claims. Conse-
quently, we conclude that the plaintiff properly charac-
terizes the certificate as applicable only to a third-party
claim challenging the plaintiff’s unencumbered interest,
title, and right to his shares and his absolute right to
sell his shares to the defendant. Accordingly, it is inap-
plicable to the present case.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Matthew Giglietti, the certified public accountant for Statewide, testified
that the defendant ran Statewide, which was ‘‘an $18 million company, and
[that] it [was] not an easy company. Meat companies by their very nature
are not easy companies. [The defendant] was a one man show. He . . .
was involved with sales. He did most, if not all, of the purchasing. The
biggest problem with the business is collecting your money. When you’re
dealing with restaurants and country clubs, if you’re not on top of that . . .
you could be in big trouble in a big hurry, so . . . he was relentless in
collecting money for the business. So, he had all the headaches [of] operating
an $18 million business . . . .’’
2
The plaintiff testified that he previously had thought about selling his
shares because of the family turmoil, as well.
3
Giglietti testified that he had been the accountant for Statewide since
approximately 1985, and that, while working in that capacity, he did State-
wide’s ‘‘corporate tax returns, [the] payroll . . . and [provided] tax
advice . . . .’’
4
Giglietti testified that the defendant was the person responsible for
acquiring the CAB license, with the hope that it would enhance Statewide’s
business. The defendant testified that he acquired the CAB license in 1994,
after initially having been rejected in 1993.
5
The court specifically found that ‘‘there was some sort of understanding
between the parties that if Statewide were to be sold, the plaintiff might
receive extra money, but there was no understanding of how much additional
money the defendant would give the plaintiff . . . .’’
6
Apparently, the plaintiff had lost his stock certificates.
7
The court specifically stated that it ‘‘[could not] conclude [that] the
$50,000 given to the plaintiff by the defendant was part and parcel of an
understanding between both of them that it would be part of the sale price
for the plaintiff’s shares.’’
8
The defendant explained: ‘‘[T]he actual deal was $6 million and there
was a $2 million earn-out that I had to earn over the next two years. I had
to continue with the level of sales. . . . If I hit the sales, they would give
me $1 million, one of the $2 million. I successfully was able to get the
$2 million.’’
9
The court noted that Sklarz testified that there had been no offers to
buy Statewide in 2009 or 2010. The court also found that ‘‘[n]o evidence
was offered to show the defendant knew that a deal to buy Statewide was
imminent’’ at the time he bought the plaintiff’s shares, and that ‘‘Giglietti
and Sklarz were astounded by the fact that Sysco offered $8 million in 2011
to buy Statewide.’’
10
In its memorandum of decision, the court noted that, in the plaintiff’s
posttrial brief, his ‘‘breach of fiduciary duty claim overlaps, legally and
factually [with his] fraudulent nondisclosure, fraudulent misrepresentation,
and negligent misrepresentation claims.’’ The court found in favor of the
defendant on each of these causes of action. The plaintiff appeals only from
the court’s judgment on his cause of action for breach of fiduciary duty.
11
The court explained the family situation as follows: ‘‘A tense family
situation existed for years, they had not celebrated a holiday together since
1996. A letter was written by the plaintiff . . . to his brothers Richard and
Steven in 2000 . . . . The letter tells of bitter family disputes and attitudes
that interestingly have nothing to do with the operation of Statewide which
is not even mentioned. At one point, after discussing his desire that they
all should be acting like brothers and go to a concert together, [the plaintiff]
says about all his complaints: ‘Stephen, I know this doesn’t apply to you as
much as it does to Richard considering you’ve been attempting to make
some kind of progress in this whole matter.’ ’’
12
The plaintiff also argues that the defendant failed to disclose that the
plaintiff could sell his shares to someone other than the defendant. The trial
court did not address the import, if any, of the defendant not remembering
whether he told the plaintiff that he might be able to sell his shares to
someone else. A review of the plaintiff’s posttrial brief reveals that the
plaintiff included the following statement in his dissertation of the facts:
‘‘Nor does the defendant recall ever informing the plaintiff that since the
defendant was not willing to pay four-fifty that he could sell them to State-
wide or Richard [Falcigno] and if they did not want to pay four-fifty he
could go sell them to anyone else. . . . That said, however, the defendant
admitted ‘I know he had the opportunity to do that.’ ’’ (Citation omitted.)
The plaintiff did not raise this again in the entirety of his posttrial brief,
nor did he analyze it in any way. Accordingly, the trial court did not mention
it in its memorandum of decision. On the basis of the foregoing, we will
not consider this argument in our analysis except to say that there is no
evidence in the record that anyone other than the defendant was interested
in purchasing the plaintiff’s minority shares or what someone would have
offered had there been an interest.
13
The plaintiff testified that he was aware that Statewide had a CAB
license and that such a license was for ‘‘a higher end selected meat. It’s just
kind of the Mercedes Benz of . . . steaks or meat.’’
14
In regard to the plaintiff’s argument on appeal that the defendant failed
to prove fair dealing because he created an ambiguity regarding the terms
of the stock purchase by telling him that he would ‘‘cut [him] back in’’ if
Statewide later sold for millions, the plaintiff did not make such an argument
in his posttrial brief to the trial court, nor in the breach of fiduciary duty
count of his complaint. As a matter of fact, the plaintiff argued in his posttrial
brief that the ‘‘cut you back in’’ or revisit language was part of the parties’
contract or that it formed its own ‘‘definite and certain . . . binding con-
tract,’’ and that it was clear and unambiguous. The trial court determined
that this statement did not form a contract, but the language was not ambigu-
ous, i.e., the plaintiff knew that it meant that the defendant would consider
giving the plaintiff some additional money if he received millions for State-
wide once he found a buyer. Accordingly, we decline to consider this argu-
ment on appeal.
15
We note that the plaintiff, in his posttrial brief to the trial court, did
not make the argument that the certificate applied only to third-party claims.
Rather, he argued in relevant part that because the certificate did not specify
that attorney’s fees were included, the American rule would bar such an
award. Because the parties have fully discussed this issue in their respective
appellate briefs, and because we conclude that the interpretation of the
certificate is a matter of law in this case, the argument of the parties in the
trial court is not controlling.