KENNETH MARSHALL, JR. v. BRENDA J. SAWICKI, SC 18225

Judicial District of New Haven

 Breach of Fiduciary Duty; Burden of Proof; Whether Appellate Court Properly Concluded that Plaintiff did not Provide Adequate Record for Review.  The plaintiff, who was unable to operate his catering business due to his drug dependency, retained the defendant, a business broker who was related to him by marriage, to help sell his business.  On December 1, 2003, two days prior to the expiration of the parties' contract, the plaintiff entered a rehabilitation facility and remained in that program until September 5, 2004.  In this breach of fiduciary duty action, the plaintiff alleged that the defendant engaged in self-dealing to acquire a one-half interest in the business.  He also alleged that another buyer, Ray Osland, acquired the other half interest and that, subsequently, the business was sold to another party.  The plaintiff claimed that the defendant failed to act fairly and in his best interests in handling these transactions, that he did not receive any part of the consideration when Osland bought his share of the business and, further, that the defendant failed to account for the bills that she claimed were paid on his behalf to continue operating his business.  The defendant counterclaimed for breach of contract.  Among the documents introduced into evidence at trial were two purchase and sales agreements, one between the plaintiff and defendant as sellers and Osland as the buyer, and another between the plaintiff as the seller and the defendant as the buyer.  Both contracts were signed only by the plaintiff.  The trial court rendered judgment for the plaintiff on the complaint and on the counterclaim after finding that the defendant owed a fiduciary duty to the plaintiff, that the burden of proof shifted to the defendant to show fair dealing by clear and convincing evidence, and that the defendant failed to sustain that burden.  The court awarded the plaintiff an amount equal to the value of his business less the commissions he owed to the defendant and the business obligations that she had paid on his behalf.  On appeal to the Appellate Court (108 Conn. App. 418), the defendant claimed that the trial court improperly found that she had acquired an interest in the plaintiff's business and, because of this finding, that it incorrectly determined that the burden of proof had shifted to her to show fair dealing and that she failed to meet that burden of proof.  She asserted that the burden of proof, instead of shifting to a fiduciary to show fair dealing upon a finding that a fiduciary relationship exists, does not shift until a tainted transaction is established and that such a transaction was not shown here.  The court declined to review the defendant's claim because it found that she failed to provide an adequate record for review.  It explained that the record was unclear as to whether the trial court specifically found that the defendant acquired any interest in the plaintiff's business.  The court stated that it could not determine what evidence the trial court relied on to determine that the burden of proof had shifted to the defendant to show fair dealing or the evidentiary basis from which it concluded that the defendant failed to meet her burden.  The Supreme Court will now review whether the Appellate Court properly concluded that the plaintiff did not provide an adequate record for review.