Rubin v. Brodie

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Rubin v. Brodie

EITAN RUBIN ET AL. v. BARNETT
BRODIE ET AL.
(AC 46348)
Alvord, Elgo and Prescott, Js.

Syllabus

Pursuant to the rule of practice (§ 61-11 (a)), an automatic appellate stay
applies to ‘‘proceedings to enforce or carry out the judgment.’’
The plaintiffs, three individuals, including R and G, and three limited liability
companies, including E Co., commenced this civil action to recover
damages from the defendants for, inter alia, breach of fiduciary duty.
The plaintiffs’ complaint alleged that the defendant B had engaged in
certain ultra vires actions that constituted self-dealing, and, therefore,
breached his fiduciary duties in managing the LLCs. Prior to the com-
mencement of this action, the parties’ dispute was submitted to a binding
rabbinical arbitration proceeding in which B sought to buy out the
interests of R and G in E Co. The arbitrators’ decision, which ordered
R and G to sell their interests in E Co. to B, was issued approximately
one month after this action had been commenced. B, in the same action,
filed an application to confirm the arbitration award pursuant to statute
(§ 52-417 et seq.). B and the other defendants thereafter filed motions
to dismiss the action. The parties agreed that the trial court should
resolve the motions to dismiss prior to the hearing on the application
to confirm. The court granted the motions to dismiss for lack of subject
matter jurisdiction and rendered judgment thereon, from which the
plaintiffs appealed to this court. Subsequently, B attempted to reclaim
his application to confirm the arbitration award. The clerk issued an
order indicating that no hearing would be scheduled, as the case was
‘‘stayed during the pendency of appeal.’’ B and various other defendants
filed a motion for review, asking this court for an order clarifying whether
Practice Book § 61-11 (a) automatically stayed proceedings in the Supe-
rior Court on the pending application to confirm. Held that the motion
for review was granted and the relief requested was granted in accor-
dance with this court’s prior order: contrary to the plaintiffs’ claim,
the application to confirm the arbitration award, a special statutory
proceeding, survived the dismissal of the plaintiffs’ complaint, as there
was no dispute that B could have secured affirmative relief had he filed
the application to confirm in a separate action, and, thus, assuming the
conditions of § 52-417 et seq. have been met, the application to confirm
can proceed to judgment separately from the judgment on the complaint;
moreover, the present appeal from the judgment dismissing the com-
plaint did not automatically stay proceedings before the court on the
application to confirm the arbitration award because proceedings on
that application will not ‘‘enforce or carry out the judgment’’ dismissing
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Rubin v. Brodie
the complaint pursuant to Practice Book § 61-11 (a), the court having
dismissed the entirety of the complaint, which sought damages from
the defendants under various theories of liability, for lack of subject
matter jurisdiction, and, should that judgment ultimately be reversed
by this court, the action would be restored to the pleading stage; further-
more, the court’s resolution of B’s application to confirm the arbitration
award will result in a separate judgment with its own appeal period,
and, although the present appeal from the judgment of dismissal resulted
in an automatic stay as to that judgment, this appeal did not have any
effect on the eventual judgment on the application to confirm, and it
did not deprive the court of authority to act on the application to confirm.
Considered February 14—officially released April 30, 2024

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 named defendant filed an application to confirm an
arbitration award; thereafter, the court, Jongbloed, J.,
granted the defendants’ motions to dismiss, and ren-
dered judgment thereon, from which the plaintiffs
appealed to this court; subsequently, the named defen-
dant et al. filed a motion for review. Motion for review
granted.
Jack G. Steigelfest, in support of the motion.
Ridgely Whitmore Brown, in opposition to the
motion.
Opinion

PRESCOTT, J. The issues before this court are
whether an application to confirm an arbitration award
filed in a pending civil action survives the dismissal of
the civil action and, if so, whether an appeal from the
judgment dismissing the civil action operates to auto-
matically stay proceedings on the application to confirm
the arbitration award. We reject the argument that the
application to confirm did not survive the dismissal of
the complaint and conclude that this appeal does not
automatically stay proceedings before the Superior
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Rubin v. Brodie

Court on the pending application to confirm an arbitra-
tion award filed by the named defendant, Barnett Bro-
die. Accordingly, we grant the motion for review filed
by Brodie and other defendants and grant the relief
requested in accordance with this court’s February 14,
2024 order.1
On February 15, 2022, the individual plaintiffs, Eitan
Rubin, Reuven Gidanian, and Eitan Rubin by power of
attorney on behalf of George Rohr,2 on their own behalf
and purportedly on behalf of the plaintiff limited liability
companies (LLCs)—E.R. Holdings, LLC; L.E. Ventures,
LLC; and Whalley Group, LLC—commenced this civil
action. The plaintiff LLCs owned land and rental proper-
ties in and around New Haven (assets). Brodie was the
managing member of the plaintiff LLCs and owned a
30 percent membership interest in each of those enti-
ties. The individual plaintiffs, Rubin, Gidanian and Rohr,
owned the remaining membership interests in the plain-
tiff LLCs. Brodie also owns or controls five additional
business entities that were named as defendants (Bro-
die defendants).3
In the first count of their complaint, the plaintiffs
sought damages for Brodie’s alleged ultra vires actions
and breaches of his fiduciary duties in his management
of the plaintiff LLCs. They alleged that Brodie acted
beyond the scope of his authority under the relevant
1
On February 14, 2024, this court granted the motion for review and
granted the relief requested, in part, by clarifying that Practice Book § 61-
11 (a) does not automatically stay proceedings before the Superior Court
on the pending application to confirm the arbitration award. Our order
indicated an opinion would follow. This opinion explains our reasons for
that determination.
2
One contested issue in this appeal is whether George Rohr is properly
a party plaintiff to this action. Rohr’s party status, however, is not relevant
to the automatic stay issue, and we decline to address it.
3
The Brodie defendants include Brodie and the following defendant enti-
ties: Reichman Brodie Real Estate, LLC; RBC DE2, LLC; Sperry Group DE2,
LLC; Riley Group DE2, LLC; and TZ DE2, LLC.
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Rubin v. Brodie

operating agreements and engaged in self-dealing by
dissolving and merging the plaintiff LLCs ‘‘into the
downstream Brodie controlled entities,’’ and by improp-
erly obtaining mortgages on the assets.
The plaintiffs named additional defendants in this
action, including holders of mortgages on the underly-
ing assets, CoreVest American Finance Lender, LLC,
formerly known as Colony American Finance Lender,
LLC (CoreVest), and 5 Arch Funding Corporation (5
Arch), as well as Attorney Lawrence Levinson. In the
second count of the complaint, which is directed to the
Brodie defendants, CoreVest, and 5 Arch, the plaintiffs
sought to quiet title to the listed asset properties. In
count three, they sought to recover damages from all
defendants for their alleged violations of the Connecti-
cut Unfair Trade Practices Act, General Statutes § 42-
110a et seq. Finally, count four alleged legal malpractice
by Levinson arising out of his representation of the
plaintiff LLCs.
The dispute at the heart of the plaintiffs’ complaint
was also the subject of a binding rabbinical arbitration
proceeding in which Brodie sought to buy out the inter-
ests of Rubin and Gidanian in E.R. Holdings, LLC. Hear-
ings before the arbitrators occurred prior to the com-
mencement of this action and terminated on February
15, 2022, the day this action was commenced. The deci-
sion of the arbitrators was issued on March 23, 2022,
approximately one month after the plaintiffs com-
menced this action. The arbitrators ordered that Rubin
and Gidanian sell their interests in E.R. Holdings, LLC,
to Brodie for $168,425. On March 24, 2022, in this civil
action, Brodie filed an application to confirm the arbi-
tration award pursuant to General Statutes § 52-417
et seq.4
4
E.R. Holdings, LLC’s 2014 operating agreement predates October 1, 2018;
thus, the Revised Uniform Arbitration Act, General Statutes § 52-407aa et
seq., does not apply.
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On March 28, 2022, the Brodie defendants filed a
motion to dismiss the plaintiffs’ complaint for lack of
personal and subject matter jurisdiction. The other
defendants—Levinson, CoreVest and 5 Arch—sepa-
rately moved to dismiss the plaintiffs’ complaint. The
plaintiffs objected to these motions, and the defendants
filed replies. The court scheduled a hearing on Brodie’s
application to confirm the arbitration award. The par-
ties ultimately agreed that the court should resolve the
motions to dismiss prior to hearing the application to
confirm.
On December 23, 2022, the court, Jongbloed, J.,
granted the defendants’ motions to dismiss and dis-
missed the entirety of the plaintiffs’ complaint for lack
of subject matter jurisdiction. The court determined
that the individual plaintiffs did not have standing to
commence the suit as a derivative action and that they
failed to plead facts that met the statutory prerequisites
to demonstrate that the plaintiff LLCs had authorized
the commencement of the action. This appeal followed.
After the plaintiffs filed this appeal, Brodie attempted
to reclaim his application to confirm the arbitration
award for a hearing before the Superior Court. The
plaintiffs objected. On November 3, 2023, the clerk
issued an order indicating that ‘‘[n]o hearing to be
scheduled at this time as matter is stayed during pen-
dency of the appeal. Party may reclaim.’’
The Brodie defendants filed a motion to reargue on
November 8, 2023. They argued that the automatic
appellate stay of Practice Book § 61-11 applies to pro-
ceedings to ‘‘enforce or carry out the judgment’’ but
does not stay all activity before the Superior Court.
Instead, they argued that the court has continuing juris-
diction over the application to confirm. Accordingly,
the Brodie defendants requested that the application
to confirm be scheduled for argument and disposition.
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The plaintiffs filed an opposition, in which they argued
that ‘‘[a]ny subject matter jurisdiction that the trial court
may have had over the application to confirm the arbi-
tration award was lost when the plaintiffs’ case was
dismissed, and the automatic appellate stay operates
to preclude any further action in the case.’’
On November 24, 2023, the court, Frechette, J., denied
the Brodie defendants’ motion and sustained the plain-
tiffs’ objection. The Brodie defendants filed a timely
motion for review of the court’s decision, asking this
court for an order clarifying whether Practice Book
§ 61-11 (a) automatically stays proceedings in the Supe-
rior Court on the pending application to confirm. The
plaintiffs filed an opposition, renewing their arguments
that the Superior Court lost jurisdiction over the appli-
cation to confirm when it dismissed the plaintiffs’ com-
plaint and, alternatively, that further proceedings are
automatically stayed during the pendency of their
appeal.
Before reaching the applicability of an appellate stay,
we must first address the plaintiffs’ claim that Brodie’s
application to confirm the arbitration award did not
survive the dismissal of the plaintiffs’ complaint. We
conclude that the application to confirm survived the
dismissal of the plaintiffs’ complaint.
‘‘Judicial enforcement of an arbitration award in Con-
necticut is governed by statute. Section 52-417 controls
applications for confirmation of an arbitration award
and states in relevant part: ‘At any time within one year
after an award has been rendered and the parties to the
arbitration notified thereof, any party to the arbitration
may make application to the superior court . . . for
an order confirming the award. . . .’ The specific steps
for applying for confirmation of an arbitration award
are set out in [General Statutes] § 52-421 (a), which
provides: ‘Any party applying for an order confirming,
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Rubin v. Brodie

modifying or correcting an award shall, at the time the
order is filed with the clerk for the entry of judgment
thereon, file the following papers with the clerk: (1)
The agreement to arbitrate, (2) the selection or appoint-
ment, if any, of an additional or substitute arbitrator
or an umpire, (3) any written agreement requiring the
reference of any question as provided in section 52-415,
(4) each written extension of the time, if any, within
which to make the award, (5) the award, (6) each notice
and other paper used upon an application to confirm,
modify or correct the award, and (7) a copy of each
order of the court upon such an application.’ [General
Statutes §] 52-420 (a) directs the trial court to handle
arbitration issues in an efficient manner, providing: ‘Any
application under section 52-417, 52-418 or 52-419 shall
be heard in the manner provided by law for hearing
written motions at a short calendar session, or other-
wise as the court or judge may direct, in order to dispose
of the case with the least possible delay.’ ’’ Windham
v. Doctor’s Associates, Inc., 161 Conn. App. 348, 353–34,
127 A.3d 1082 (2015).
In Windham, the plaintiff claimed that the ‘‘court
improperly confirmed the arbitration award because a
proper application to confirm the award was not before
the court. [The defendant] requested that the court con-
firm the award, but it did not file a separate and distinct
application to confirm.’’ Id., 352. Instead, the defendant
had included its application to confirm the award as
an opposition to the plaintiff’s application to vacate the
award and, therefore, did not pay a filing fee. Id. The
plaintiff claimed that this was fatal to the judgment
confirming the award in favor of the defendant.
This court in Windham determined that the trial court
did not improperly confirm the arbitration award. Id.,
355. In support of its conclusion, this court reasoned:
(1) the defendant had provided sufficient notice of its
request to confirm the award; (2) the defendant’s
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motion ‘‘was filed within one year of the date of the
arbitration award’’ as required by § 52-417; (3) the mate-
rials required by § 52-421 were before the court; and
(4) the court’s decision to consider both the application
to vacate and application to confirm ‘‘simultaneously,
in furtherance of judicial economy, is a reasonable way
to ‘dispose of the case with the least possible delay’ ’’
as required by § 52-420 (a). Windham v. Doctor’s Asso-
ciates, Inc., supra, 161 Conn. App. 354–55.

Here, Brodie’s application to confirm was filed in the
Superior Court within days of the issuance of the award.
It will be for that court to determine, in the first instance,
whether the essential conditions prescribed by § 52-417
et seq. have been met. Under the rationale of Windham,
however, the Superior Court has the authority to con-
sider the application, even though the application was
not filed independently but, instead, was made in a
pending civil action. See also, e.g., Lemma v. York &
Chapel, Corp., 204 Conn. App. 471, 475–76, 254 A.3d
1020 (2021) (rejecting defendant’s argument, made for
first time on appeal, that Superior Court lacked jurisdic-
tion over application to confirm arbitration award when
application was filed in same docket as earlier statutory
proceeding between parties).

The fact that the plaintiffs’ complaint subsequently
was dismissed does not alter our analysis. Proceedings
to confirm or vacate arbitration awards are special stat-
utory proceedings. Pickard v. Dept. of Mental Health &
Addiction Services, 210 Conn. App. 788, 795, 271 A.3d
178 (2022). The statutes relating to arbitration ‘‘[confer]
a definite jurisdiction upon a judge and [define] the
conditions under which such relief may be given . . . .
[J]urisdiction is only acquired if the essential conditions
prescribed by [the] statute are met.’’ (Internal quotation
marks omitted.) Id.
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Principles pertaining to ordinary civil actions are nev-
ertheless helpful in framing this discussion. ‘‘[A] coun-
terclaim is a cause of action . . . on which the defen-
dant might have secured affirmative relief had he sued
the plaintiff in a separate action.’’ (Internal quotation
marks omitted.) Historic District Commission v. Sci-
ame, 152 Conn. App. 161, 176, 99 A.3d 207, cert. denied,
314 Conn. 933, 102 A.3d 84 (2014). ‘‘The term [counter-
claim] itself is a general and comprehensive one, natu-
rally including within its meaning all manner of permis-
sible counterdemands. . . . [T]he word counterclaim
was intended to be the generic term for all cross
demands other than setoffs, whether in law or in
equity.’’ (Citations omitted; internal quotation marks
omitted.) 98 Lords Highway, LLC v. One Hundred
Lords Highway, LLC, 138 Conn. App. 776, 798, 54 A.3d
232 (2012); cf. Gattoni v. Zaccaro, 52 Conn. App. 274,
279–80, 727 A.2d 706 (1999) (trial court had jurisdiction
to consider defendant’s motion for injunctive relief,
despite plaintiffs’ withdrawal of complaint, where ‘‘trial
court properly treated that motion as a counterclaim’’).
‘‘A final judgment on a [complaint] establishes a distinct
appeal period from the appeal period related to the
judgment on a [counterclaim] in the same case. See
Practice Book §§ 61-2 and 61-3.’’ Sovereign Bank v.
Licata, 178 Conn. App. 82, 99, 172 A.3d 1263 (2017).
There can be no dispute that Brodie could have
secured affirmative relief had he filed the application
to confirm the arbitration award in a separate action.
The plaintiffs have offered no authority for the proposi-
tion that the dismissal of their complaint, by itself, strips
the Superior Court of jurisdiction to consider Brodie’s
application filed in the same case. Assuming the condi-
tions of § 52-417 et seq. have been met, the application
to confirm, like a counterclaim, can proceed to judg-
ment separately from the judgment on the complaint.
We therefore reject the plaintiffs’ argument that the
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Rubin v. Brodie

application to confirm the arbitration award did not
survive the dismissal of their complaint.
We must next determine whether this appeal from
the judgment dismissing the plaintiffs’ complaint oper-
ates to stay proceedings in the Superior Court on Bro-
die’s application to confirm the arbitration award. We
conclude that it does not.5
The automatic appellate stay delineated in Practice
Book § 61-11 (a) applies to ‘‘proceedings to enforce or
carry out the judgment . . . .’’ Our appellate courts
regularly draw distinctions between proceedings to
enforce or carry out a judgment, which are automati-
cally stayed; e.g., RAL Management, Inc. v. Valley View
Associates, 278 Conn. 672, 683–84, 899 A.2d 586 (2006)
(law days in foreclosure actions are automatically
stayed because they carry out judgment of strict foreclo-
sure); and trial court proceedings that do not enforce
or carry out the judgment. E.g., All Seasons Services,
Inc. v. Guildner, 89 Conn. App. 781, 787–88, 878 A.2d
370 (2005) (filing judgment lien and engaging in post-
judgment discovery do not violate § 61-11 (a)).
Proceedings on Brodie’s application to confirm do
not enforce or carry out the judgment dismissing the
plaintiffs’ complaint. The plaintiffs filed a civil action
5
Our conclusion is limited to the question presented here, namely, whether
Practice Book § 61-11 (a) automatically stays trial court proceedings on the
application to confirm. We conclude that it does not. We express no opinion
as to whether the Superior Court, in the exercise of its discretion, may
impose a stay of proceedings on the application to confirm for the duration
of this appeal. ‘‘We are mindful of the well established principle that [t]he
power to stay proceedings is incidental to the power inherent in every court
to control the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants. How this can best be done
calls for the exercise of judgment, which must weigh competing interests
and maintain an even balance.’’ (Internal quotation marks omitted.) Fairlake
Capital, LLC v. Lathouris, 214 Conn. App. 750, 774, 281 A.3d 1240 (2022).
But see General Statutes § 52-420 (a) (trial court is to ‘‘dispose of the case
with the least possible delay’’).
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seeking damages from the defendants under various
theories of liability. The Superior Court dismissed the
entirety of their complaint for lack of subject matter
jurisdiction. Should that judgment of dismissal ulti-
mately be reversed by this court, the plaintiffs’ action
will be restored to the pleading stage.
The court’s resolution of Brodie’s application to con-
firm the arbitration award will result in a separate judg-
ment with its own appeal period. ‘‘Our rules of practice
unquestionably establish that, for purposes of filing an
appeal, a final judgment disposing of a counterclaim is
separate and distinct from a judgment on the associated
complaint. . . . For example, a judgment rendered on
an entire counterclaim is an immediately appealable
independent judgment even if an undisposed complaint
remains in the case. . . . Such a final judgment on a
counterclaim establishes a distinct appeal period from
the appeal period related to the judgment on a com-
plaint in the same case.’’ (Citations omitted.) Sovereign
Bank v. Licata, supra, 178 Conn. App. 99.
‘‘As a result of these different appeal periods, differ-
ent appellate stays of execution arise, and any auto-
matic stay that is extended as the result of filing an
appeal from a counterclaim will not stay proceedings
to enforce or carry out the judgment on the complaint.’’
Id. The present appeal from the judgment of dismissal
resulted in an automatic stay as to that judgment. This
appeal does not have any effect on the eventual judg-
ment on the application to confirm.
This pending appeal also does not deprive the Supe-
rior Court of authority to act on the application to
confirm. It is well settled that ‘‘the filing of an appeal
does not stay a trial court’s continuing authority to
adjudicate any properly filed motions to reargue, recon-
sider or open the judgment that is the subject of the
appeal; see Practice Book § 11-11; irrespective of the
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possibility that the trial court’s action on such a motion
potentially could render the appeal moot. See Ahneman
v. Ahneman, 243 Conn. 471, 482–84, 706 A.2d 960 (1998).
Said another way, although the filing of an appeal may,
in certain instances, result in a stay of actions to enforce
or carry out the judgment on appeal . . . any such
appellate stay does not affect a court’s authority to rule
on motions filed with the trial court . . . .’’ (Citation
omitted; emphasis omitted.) 307 White Street Realty,
LLC v. Beaver Brook Group, LLC, 216 Conn. App. 750,
762 n.8, 286 A.3d 467 (2022).
We conclude that proceedings before the Superior
Court on Brodie’s application to confirm the arbitration
award would not run afoul of the automatic appellate
stay described in Practice Book § 61-11 (a) because
such proceedings would not ‘‘enforce or carry out’’ the
judgment dismissing the plaintiffs’ complaint.
The motion for review is granted and the relief
requested is granted in accordance with this court’s
February 14, 2024 order.
In this opinion the other judges concurred.