Clinton v. Aspinwall

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             JOHN B. CLINTON v. MICHAEL E.
                   ASPINWALL ET AL.
                       (SC 20543)
                       (SC 20544)
                  Robinson, C. J., and McDonald, D’Auria,
                        Kahn, Ecker and Keller, Js.

                                   Syllabus

The plaintiff sought to recover damages from the defendants for their alleged
   breach of contract and of their fiduciary duties in voting to, inter alia,
   amend the operating agreement of a limited liability company, C Co.,
   in which the defendants held a controlling interest and of which the
   plaintiff had been a member. The parties had organized C Co. pursuant
   to the operating agreement, which was governed by Delaware law. In
   addition to a claim concerning the allegedly improper vote to amend
   the operating agreement, the plaintiff also claimed that the defendants
   improperly had removed him as a member of C Co. and improperly had
   maintained a sizable capital reserve fund, even though it was no longer
   needed. The case was tried to a jury, which was directed, pursuant to
   a jury verdict form, to decide the plaintiff’s breach of contract claims
   first and to decide the breach of fiduciary duty claims only if it found
   in favor of the defendants on the breach of contract claims. The plaintiff
   did not object to the jury verdict form. Thereafter, the jury found in
   favor of the plaintiff on his breach of contract claims but did not reach
   the fiduciary duty claims, which remained unadjudicated and never were
   disposed of by the trial court. The defendants filed two separate appeals
   with the Appellate Court, which affirmed the trial court’s judgment as
   to the plaintiff’s capital reserve fund claim but reversed the judgment
   as to the plaintiff’s claims regarding the vote to amend the operating
   agreement and his removal as a member of C Co. The Appellate Court
   remanded the case with direction to render judgment for the defendants
   on the latter claims. On the granting of certification, the plaintiff and
   the defendants filed separate appeals with this court. Held that the
   Appellate Court lacked subject matter jurisdiction over the defendants’
   appeals to that court because there was no final judgment in the trial
   court, and, accordingly, this court vacated the Appellate Court’s judgment and remanded the case with direction to dismiss the defendants’
   appeals: the issue of whether the defendants appealed from a final
   judgment was controlled by Connecticut procedural law, pursuant to
   which a trial court that has not disposed of all of the causes of action
   against an appellant is presumed to have implicitly disposed of any
   legally inconsistent, but not legally consistent, alternative theories; moreover, Delaware law controlled the substantive issues in the present case,
   and, although that state’s law requires courts to dismiss fiduciary duty
   claims that have no independent basis apart from breach of contract
   claims, nothing about that policy suggested that the plaintiff’s breach
   of contract and fiduciary duty claims were legally inconsistent, insofar
   as establishing the elements of one of those causes of action did not
   preclude liability with respect to the other cause of action under either
   Delaware or Connecticut law; accordingly, rather than being legally
   inconsistent, breach of contract and breach of fiduciary duty were more
   akin to legally consistent but alternative theories that prevent double
   recovery, and the issue of whether the plaintiff’s fiduciary duty claims
   could proceed under Delaware law was left to the trial court; furthermore, the plaintiff did not withdraw or unconditionally abandon his
   fiduciary duty claims, even though he neither objected to the verdict
   form nor appealed from the Appellate Court’s conclusion that he had
   abandoned his fiduciary duty claims by failing to object, and this court
   stressed that, to promote judicial economy, trial courts overseeing jury
   trials should always have the jury decide all counts of a complaint,
   except when doing so would result in a legally inconsistent finding that
   would require a new trial.
         Argued April 27—officially released September 20, 2022
                      Procedural History

   Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Robaina, J., granted the plaintiff’s motion for
summary judgment with respect to the defendants’
counterclaim; thereafter, the case was tried to the jury
before Shapiro, J.; verdict for the plaintiff; subsequently, the defendants appealed to the Appellate Court;
thereafter, the court, Shapiro, J., denied the defendants’
motions to set aside the verdict and for judgment notwithstanding the verdict and rendered judgment in
accordance with the verdict, and the defendants filed
an amended appeal; subsequently, the court, Hon.
Robert B. Shapiro, judge trial referee, granted the plaintiff’s motion for attorney’s fees and costs, and the defendants filed a second amended appeal and a separate
appeal with the Appellate Court, which consolidated
the appeals; thereafter, the Appellate Court, Lavine,
Alvord and Harper, Js., reversed the trial court’s judgment in part and remanded the case with direction to
render judgment in part for the defendants and for
further proceedings; subsequently, the defendants and
the plaintiff, on the granting of certification, filed separate appeals with this court. Vacated; judgment directed.
  Garrett S. Flynn, with whom was Barbara M. Schellenberg, for the appellants-appellees (defendants).
  Glenn W. Dowd, with whom was Howard Fetner, for
the appellee-appellant (plaintiff).
                          Opinion

   D’AURIA, J. When a court renders judgment in a
multicount civil action with fewer than all counts of a
plaintiff’s complaint accounted for in that judgment,
jurisdictional alarm bells should ring if any party files
an appeal, alerting the parties and the trial court to a
potential final judgment problem. Before the parties
and the appellate courts expend resources resolving the
appeal, it is important to examine the rules of practice,
statutes and our case law to determine whether an
appeal can be taken from that judgment. See General
Statutes §§ 51-197a and 52-263; Practice Book §§ 61-2
through 61-5. In Meribear Productions, Inc. v. Frank,

, 

 (2018), we held in the
context of a court trial that, when legally consistent
theories of recovery have been litigated but not all theories have been ruled on, there is no final judgment. The
present appeals require us to determine whether the
same threshold jurisdictional rule applies in the context
of civil jury trials. We hold that it does and are therefore
compelled to vacate the judgment of the Appellate
Court and to remand this case to that court with direction to dismiss the appeals for lack of subject matter
jurisdiction.
  The Appellate Court’s opinion contains the relevant
facts and procedural history of this case, which we
briefly summarize. The plaintiff, John B. Clinton, and
the defendants, Michael E. Aspinwall, Steven F. Piaker,
and David W. Young, organized CCP Equity Partners,
LLC (CCP), as a Delaware limited liability company and
executed an amended operating agreement. Clinton v.
Aspinwall, 

, 207, 

 (2020).
The parties founded CCP ‘‘to provide management services to, and serve as the general partner of, certain
private equity funds. Pursuant to the [operating] agreement, each member was to serve as a manager . . .
on the board of managers (board).’’ 

 207–208. The
operating agreement entrusted the board, but not the
members, with the management of CCP. See 

 208
n.2. The board also created a capital reserve fund of
$3 million to fund future expenses of the company.

.
   Subsequently, ‘‘the members decided not to raise
investor capital to create another private equity fund. The
members expected all CCP operations to close and that
substantially all portfolio companies would be liquidated . . . .’’ 

 The defendants, ‘‘who controlled 61
percent of the interests of CCP, voted to amend § 8.1
of the [operating] agreement, over the objections of the
plaintiff’’ and another member, Preston Kavanagh. Id.
‘‘Before the amendment, § 8.1 provided that general
distributions [from the capital reserve fund] shall be
made pro rata among the members, in proportion to
their capital accounts. The amendment added language
to the section, providing that distributions could other-
wise be determined by the consent of all members. The
defendants [enacted] this amendment pursuant to § 2.51
of the [operating] agreement.’’ (Footnote added; footnote omitted.) Id., 208–209.
   Kavanagh then sued CCP and the remaining members. Id., 209. The defendants held a meeting to vote
to remove Kavanagh from CCP. Id. At the same meeting,
‘‘the plaintiff challenged the necessity of CCP’s $3 million capital reserve. The defendants explained that the
reserve was necessary to meet CCP’s obligations to
investors for several more years, to defend against
Kavanagh’s lawsuit, and for the possibility that the
plaintiff [might] take legal action against CCP.’’ Id. Several years later, ‘‘the defendants voted to remove the
plaintiff as a member of CCP, also pursuant to § 2.5 of
the [operating] agreement.’’ Id., 210.
   The plaintiff then brought the present action. After
motion practice and amendment, there remained a two
count complaint at the time of trial. The operative complaint alleged that the defendants breached their contractual and fiduciary duties based on their having voted
to amend the operating agreement (amendment claim),
voted to remove the plaintiff as a member of CCP (member removal claim), and maintained a capital reserve
fund of $3 million when it was no longer needed (capital
reserve claim). Id. The plaintiff alleged that, because
of their acts, the defendants had breached the fiduciary
duties they owed to him under Connecticut or Delaware
law, and breached § 3.4 of the operating agreement,
which requires managers to exercise their best judgment in operating the company. Id., 210–11.
   Prior to trial, the defendants moved to strike the
complaint. Citing Nemec v. Shrader, 

 (Del.
2010), the defendants argued that the breach of fiduciary duty claims failed because Delaware law forecloses those claims when they seek to override contractual terms. The trial court denied the motion, ruling
that it did not matter if Connecticut or Delaware law
governed the breach of fiduciary duty claims because,
in either jurisdiction, members and managers of limited
liability companies owe each other fiduciary duties, and
the plaintiff had alleged facts sufficient to establish a
breach of those duties.
  The parties tried the case to a jury. See Clinton v.
Aspinwall, supra, 

. ‘‘The jury verdict
form first asked the jury to decide the three breach of
contract counts. Only if the jury found in favor of the
defendants on those counts . . . was it then asked to
address the two breach of fiduciary duty counts, related
to the member removal and the capital reserve.’’ (Footnote omitted.) Id., 212–13.2 The plaintiff did not object
to the jury instructions or the verdict form.3 ‘‘[T]he jury
returned its verdict in favor of the plaintiff on the three
breach of contract counts. The jury, therefore, did not
reach the two breach of fiduciary duty counts.’’ Id., 214.
   The jury awarded the plaintiff $146,901 for breach of
contract on the amendment claim, $672,208 for breach
of contract on the member removal claim, and $303,426
for breach of contract on the capital reserve claim.
Id. The trial court denied the defendants’ motions for
judgment notwithstanding the verdict and to set aside
the verdict and, after an evidentiary hearing, granted
the plaintiff’s motion for attorney’s fees and costs pursuant to the operating agreement, awarding the plaintiff
$716,200 in attorney’s fees and $6118.75 in costs. See
id. Judgment therefore was rendered in the plaintiff’s
favor on the breach of contract claim contained in count
two. No judgment of any kind was rendered on the
fiduciary duty count.
   The defendants appealed to the Appellate Court,
which affirmed in part and reversed in part the judgment
of the trial court and remanded the case for a new
hearing on the issue of attorney’s fees and costs. See
id., 229. Specifically, the Appellate Court reversed the
judgment as to the plaintiff’s amendment and member
removal claims and ordered the trial court to render
judgment in favor of the defendants on those two
claims. Id., 222. The Appellate Court affirmed the judgment as to the plaintiff’s capital reserve claim. Id., 228.
In a footnote, the Appellate Court also declined the
plaintiff’s invitation to remand the case to the trial court
with direction to render judgment in favor of the plaintiff on the parallel fiduciary duty claim in the event that
the judgment as to any of the three breach of contract
claims was reversed. See id., 222 n.19. The Appellate
Court concluded that, because the plaintiff had not
objected to the verdict form instructing the jury to
bypass the fiduciary duty counts, ‘‘the plaintiff failed
to preserve [that] claim.’’ Id.
   The plaintiff and the defendants sought certification
to appeal from the Appellate Court’s judgment. We
granted both petitions.4 Prior to oral argument before
this court, and citing Meribear Productions, Inc. v.

, we ordered the parties to
file supplemental briefs providing ‘‘reasons, if any, why
the appeal[s] should not be dismissed for lack of a final
judgment because the jury did not reach, and the trial
court did not render judgment on, the first count of
the complaint, which alleged that the defendants had
breached their fiduciary duty.’’5 We now determine that
the defendants did not appeal from a final judgment,
and, therefore, the Appellate Court lacked jurisdiction
to hear the defendants’ appeals.
                             I
  To address the question of appellate jurisdiction
properly, we must first determine whether Connecticut
or Delaware law guides our final judgment analysis. In
their supplemental briefs to this court, both parties
agree that Connecticut law applies to the question of
whether there is an appealable final judgment. We agree
with the parties. Notwithstanding which substantive
law might apply to the merits of a dispute, it is well
established that we apply the procedural law of Connecticut to ‘‘matters of judicial administration and procedure.’’ Reclaimant Corp. v. Deutsch, 

, 

 (2019). Thus, Connecticut law governs
procedural issues, such as standing, which affect our
subject matter jurisdiction to hear appeals. See, e.g.,
Ferri v. Powell-Ferri, 

, 

(2017). It is similarly well established that, because the
right of appeal is purely statutory, ‘‘[t]he lack of a final
judgment is a jurisdictional defect that mandates dismissal.’’ Blondeau v. Baltierra, 

, 135, 

 (2020). Connecticut law therefore governs
whether the defendants appealed from a final judgment
in this case, in which there has never been an adjudication of the fiduciary duty count. The jury, following the
trial court’s instructions, never considered the count
containing the fiduciary duty claims because it found
in favor of the plaintiff on his breach of contract claims.
The court never disposed of the fiduciary duty count
in any fashion.
   Under Connecticut law, a judgment that ‘‘disposes of
only a part of a complaint is not final, unless it disposes
of all of the causes of action against the appellant.’’
Meribear Productions, Inc. v. 

. When the ‘‘trial court disposes of one count in the
plaintiff’s favor, such a determination implicitly disposes of legally inconsistent, but not legally consistent,
alternative theories.’’ 

. Claims are legally inconsistent, or mutually exclusive, when establishing the
elements of one claim precludes liability on the other
claim; it is then ‘‘fair to infer that a judgment in favor
of the plaintiff on one count legally implies a judgment
in favor of the defendant on the other count.’’ (Emphasis
omitted.) 

. On the other hand, the plaintiff may
establish legally consistent alternative theories but may
not recover twice for the same injury. 

 In that case,
a ruling in the plaintiff’s favor on one count ‘‘does not
imply as a matter of fact or law whether the plaintiff
has established the defendant’s liability under the other
count’’; 

; and, therefore, presents a final judgment problem.
   Although Connecticut procedural law governs the
final judgment issue, both parties also appear to agree
that Delaware law applies to the substantive claims
pursuant to the choice of law provision contained in
the operating agreement. We agree with the parties that
Delaware law governs the substantive matters in the
present case, including whether the plaintiff’s breach
of contract and breach of fiduciary duty counts are
legally consistent or inconsistent. See 

 (looking
to elements necessary to establish claims to determine
whether claims are legally consistent or inconsistent).
We therefore must determine whether, under Delaware
law, a claim of breach of contract and a claim of breach
of fiduciary duty are legally inconsistent, such that
establishing the elements of one claim precludes liability on the other claim.
   Whether contractual or fiduciary principles govern a
particular claim is a fact specific and contextual determination that does not lend itself to a bright line rule.
Moore Business Forms, Inc. v. Cordant Holdings Corp.,
Docket No. Civ. A. 13911, 

, *6 (Del. Ch.
November 2, 1995). The leading Delaware case is Nemec
v. 

, in which the plaintiffs
raised claims of breach of the implied covenant of good
faith and fair dealing, breach of fiduciary duty, and
unjust enrichment. 

. The defendants moved to
dismiss the complaint on grounds including that the
plaintiffs’ breach of fiduciary duty claim had to be adjudicated as a breach of contract claim. See 

. The Court of Chancery granted the defendants’
motion and dismissed the complaint. 

. In upholding the judgment of the Court of Chancery, the Delaware
Supreme Court explained that, when ‘‘a dispute arises
from obligations that are expressly addressed by contract, that dispute will be treated as a breach of contract
claim. In that specific context, any fiduciary claims
arising out of the same facts that underlie the contract
obligations would be foreclosed as superfluous.’’ 

; see 

 1129 n.31, citing Blue Chip Capital Fund
II Ltd. Partnership v. Tubergen, 

 (Del.
Ch. 2006). The Delaware Court of Chancery has
explained the reasoning behind this rule: to allow a
fiduciary duty claim to ‘‘coexist in parallel with [a contractual] claim’’ would undermine ‘‘the primacy of contract law over fiduciary law in matters involving . . .
contractual rights and obligations.’’ (Internal quotation
marks omitted.) Grayson v. Imagination Station, Inc.,
Docket No. Civ. A. 5051-CC, 

, *7 (Del.
Ch. August 16, 2010), quoting Gale v. Bershad, Docket
No. Civ. A. 15714, 

, *5 (Del. Ch. March
4, 1998). The Delaware Court of Chancery has characterized the rule as requiring that breach of fiduciary
duty claims ‘‘must be dismissed’’ when they are ‘‘duplicative of [a party’s] breach of contract claims.’’ In re
WeWork Litigation, Docket No. 2020-0258-AGB, 

, *11 (Del. Ch. October 30, 2020). When
‘‘those rights arise from a contract that specifically
addresses the matter at issue, the court evaluates the
parties’ conduct within the framework they themselves
crafted, instead of imposing more broadly defined equitable duties.’’ Grunstein v. Silva, Docket No. C.A. 3932-
VCN, 

, *6 (Del. Ch. December 8, 2009).
  Delaware law does allow for both a breach of contract
claim and a breach of fiduciary duty claim to move
forward, even though both claims arise from the same
nucleus of operative fact: When ‘‘there is an independent basis for the fiduciary duty claims apart from the
contractual claims, even if both are related to the same
or similar conduct . . . the fiduciary duty claims will
survive.’’ (Internal quotation marks omitted.) Grayson
v. Imagination Station, 

,
*7. There is an independent basis for breach of fiduciary
duty claims when (1) they depend on additional facts,
(2) are broader in scope, and (3) involve different considerations in terms of a potential remedy. Bäcker v.
Palisades Growth Capital II, L.P., 

, 109
(Del. 2021); Schuss v. Penfield Partners, L.P., Docket
No. Civ. A. 3132-VCP, 

, *10 (Del. Ch.
June 13, 2008). Some courts have declined to dismiss
as duplicative fiduciary duty claims when the parties’
contract itself imposes fiduciary duties. See RJ Associates, Inc. v. Health Payors’ Organization Ltd. Partnership, HPA, Inc., Docket No. 16873, 

,
*9–10 (Del. Ch. July 16, 1999); see also In re Mobilactive
Media, LLC, Docket No. Civ. A. 5725-VCP, 

, *20 n.219 (Del. Ch. January 25, 2013). Neither
party argues in this court that these conditions apply.
   The reason that Delaware law requires that courts
dismiss fiduciary duty claims when there is no independent basis apart from the contractual claim is not
because they cannot, as a matter of law, be tried
together. Instead, to honor parties’ expectations in
drafting agreements, Delaware law evidently requires
courts to dismiss these claims in certain circumstances
for policy reasons. See, e.g., Moore Business Forms,
Inc. v. Cordant Holdings 

,
*6 (‘‘[T]he [fiduciary] duties sought to be enforced have
a clearly contractual source. This dispute among these
parties relates to an event specifically anticipated and
expressly provided for in their contract.’’). Nothing
about this policy suggests that the claims in the present
case are legally inconsistent such that establishing the
elements of breach of contract, as provided by Delaware law, precludes liability on the breach of fiduciary
duty count. The elements of breach of contract and
breach of fiduciary duty do not conflict under Delaware
law or under Connecticut law.6 As the Delaware Court
of Chancery has recognized, although a plaintiff may
advance alternative theories or claims, such as breach
of contract and breach of fiduciary duty at the pleading
stage, a plaintiff can recover only ‘‘a single judgment,
and a plaintiff cannot recover duplicative remedies.’’
Garfield ex rel. ODP Corp. v. Allen, 

, 360
(Del. Ch. 2022). These cases make clear that claims of
breach of contract and breach of fiduciary duty are
more akin to legally consistent alternative theories that
prevent double recovery, not legally inconsistent as that
phrase is defined under Connecticut procedural law—
with the elements of breach of contract precluding liability on a breach of fiduciary duty claim. Therefore,
under Meribear Productions, Inc., there is no final judgment, and we leave the resolution as to whether the
fiduciary duty claim can proceed under Delaware law
to the trial court. See Meribear Productions, Inc. v.


 328 Conn. 723–24.
  Nevertheless, the defendants contend that they properly appealed from a final judgment because the plaintiff
did not object to the jury verdict form and did not
appeal from the Appellate Court’s conclusion that the
plaintiff effectively abandoned his fiduciary duty claims
by failing to object to the verdict form. See Clinton v.
Aspinwall, supra, 

 n.19. We disagree
for two reasons.
   First, in posttrial motions, the plaintiff contested the
defendants’ characterization of his fiduciary duty claims
as no longer relevant. He argued that the verdict form
was devised to avoid an inconsistent verdict because
a finding in his favor on the breach of contract claim
implied a finding in his favor on his breach of fiduciary
duty claim. Consistent with this position and citing Meribear Productions, Inc., the plaintiff argued in supplemental briefing to this court that there was no final
judgment because the breach of contract and breach
of fiduciary duty claims were legally consistent. The
jury never reached the fiduciary duty claims, and the
trial court never ruled on them. There is no record of
whether the trial court ever considered whether, under
Delaware law, the claims are superfluous or duplicative
or whether the fiduciary duty claim can coexist with
the contract claim. The fact that the defendants contest
the plaintiff’s characterizations serves to strengthen,
rather than to undercut, the conclusion that there has
not yet been a final judgment.
   Second, under our case law, appeals from nonfinal
judgments are void ab initio. See, e.g., Stroiney v. Crescent Lake Tax District, 

, 86 n.3, 

 (1985). That is to say, we must measure whether
there is a final judgment based on the record at the
time the appeal was taken. See 

 Recalling that it was
the defendants who appealed from the adverse jury
verdict on the plaintiff’s breach of contract claims, as
discussed previously, the judgment in this case was not
final under Connecticut law.
   In the same way, any attempt by the plaintiff to render
the judgment final, nunc pro tunc, is ineffectual under
Stroiney. Specifically, although he took the position in
his supplemental brief that the judgment was not final,
the plaintiff’s counsel represented at oral argument
before this court that his client ‘‘would like nothing
better than for [this court] to bring finality to this case
that he’s been trying to get finality on for ten years. If
that costs the fiduciary duty claim, he’s willing to pay
that price.’’ In Stroiney, this court rejected a more
explicit offer by counsel at oral argument to cure a final
judgment defect by withdrawing ‘‘claims for injunctive
relief and for damages . . . [while] reserving the right
to bring a separate suit to obtain such relief.’’ Stroiney
v. Crescent Lake Tax 

.
We explained that it was ‘‘futile for the plaintiffs to
attempt to waive their claims for additional relief in
order to meet the final judgment requirement, because
a jurisdictional defect renders the appeal void ab initio
and is, therefore, not waivable. . . . [T]here is a complete lack of jurisdiction, and the only power this court
has over such a case is to dismiss for lack of jurisdiction.
This court has no power to allow the plaintiff to, in
effect, amend his complaint by waiving any claims for
further relief.’’ (Citation omitted.) Id.; cf. Zamstein v.
Marvasti, 

, 555–56, 

 (1997)
(judgment became final after trial court granted motion
to strike four of six counts because plaintiff, in motion
for judgment, abandoned remaining claims, representing that he would withdraw counts and did so after
court rendered judgment). No party has asked us to
overrule Stroiney or that line of cases.
   Although the statement by the plaintiff’s counsel
before this court manifests an understandable fatigue
with this litigation, we are reluctant to take counsel’s
belated representations—that the plaintiff ‘‘would like
nothing better than . . . finality’’ even if it ‘‘costs [him]
the fiduciary duty claim’’—to constitute an effective
withdrawal or abandonment of his claims. This is especially so given that the plaintiff has consistently taken
the position (including in his supplemental brief to this
court) that the fiduciary duty claims remain undecided.
If we were to reach the merits of the contractual claim
and find favorably for the defendants, perhaps the plaintiff will want the opportunity to pursue the fiduciary
duty claim.
  Because, under Delaware law, breach of fiduciary
duty is a legally consistent alternative theory of recovery to breach of contract, and the plaintiff has not withdrawn or unconditionally abandoned his fiduciary duty
claims contained in count one of his complaint, those
claims remain unadjudicated, and the trial court has
not disposed of them. Accordingly, there was no final
judgment for the defendants to have appealed from,
and, thus, the Appellate Court lacked jurisdiction over
the defendants’ appeals.7
                             II
   Litigation involving multiple causes of action, counts,
and theories of recovery presents case management
challenges unique to each controversy, including
whether all causes of action, counts, or theories should
be adjudicated at once. In the context of a court trial,
we have suggested that ‘‘the far better practice’’ is ‘‘for
the trial court to fully address the merits of all theories
litigated, even those that are legally inconsistent. If the
trial court determines that the plaintiff has established
more than one theory of recovery for the same injury,
the trial court would render judgment in the plaintiff’s
favor on the primary count and render judgment for
the defendant on the other(s), albeit solely due to the
nature of the alternative claims.’’ (Footnote omitted.)
Meribear Productions, Inc. v. 

. We have explained that, ‘‘[b]y so doing, we envision
several economies that would inure to the benefit of
the parties and the judicial system,’’ including that, ‘‘[i]f
the appeal proceeds, the case would typically be
resolved in that appeal, thus substantially reducing the
number of retrials and successive appeals.’’8 

   The same wisdom applies to jury trials to protect
against appeals from nonfinal judgments. Counsel and
the trial court must consider precisely what information
is needed from the jury to maximize the efficiency of
the system in the event of an appeal. Toward that end,
the trial court should always have the jury decide all
counts of a complaint, except in the uncommon situation when doing so would result in a legally inconsistent
finding that requires a new trial. See, e.g., DaCruz v.
State Farm Fire & Casualty Co., 

, 

 (2004) (‘‘[i]ntentional conduct and negligent
conduct, although differing only by a matter of degree
. . . are separate and mutually exclusive’’ (citation
omitted; internal quotation marks omitted)). Jury
instructions and jury interrogatories are useful tools to
facilitate this exercise, keeping the jury focused while
avoiding confusion. To do so, the jury instructions and
jury interrogatories must be carefully crafted with this
in mind. The trial court will then be equipped, after the
jury is excused and after comment and briefing from
counsel, with the information necessary to eliminate
any duplication or other aspects of the verdict that
cannot be entered by law as part of the judgment. In this
case, for example, the trial court could have accepted
verdicts on both the breach of contract count and the
breach of fiduciary duty count and later determined
whether it was necessary under Delaware law to vacate
or set aside the verdict as to the fiduciary duty count.9
  The judgment of the Appellate Court is vacated and
the case is remanded to that court with direction to
dismiss the defendants’ appeals.
      In this opinion the other justices concurred.
  1
    Section 2.5 of the operating agreement provides in relevant part: ‘‘In
addition to the other matters specified hereunder, subject to the prior
approval by the [b]oard of [m]anagers, the consent of [m]embers holding
60 [percent] or more of the [p]ercentage [i]nterests shall be required for
. . . (ii) the removal of a [m]ember other than on account of death or
voluntary resignation . . . [and] (vii) any amendment to this [a]greement.’’
  2
    ‘‘The plaintiff withdrew the breach of fiduciary duty claim related to the
amendment to the agreement because the defendants were going to file a
motion arguing that the claim was barred by the statute of limitations and,
the plaintiff’s counsel reasoned: [I]t’s an issue that’s largely covered by our
breach of contract claim that it is going to make the jury deliberations and
verdict form and jury interrogatories unduly confusing.’’ (Internal quotation
marks omitted.) Clinton v. Aspinwall, supra, 200 Conn. App. 213–14 n.13.
  3
    The defendants objected to the jury instructions, seeking a ruling on
whether § 3.4 of the operating agreement is a special defense, on which
they have the burden of proof, or an immunity, on which the plaintiff has
the burden of proof. The defendants also objected to the verdict form,
seeking a verdict form that separately delineated their special defenses. The
defendants have not raised any of these issues before this court.
  4
    We certified the following issues for the defendants’ appeal: (1) ‘‘Did
the Appellate Court correctly conclude that § 3.4 of the limited liability
company operating agreement imposes an affirmative duty on the managers
to exercise ‘best judgment’ but does not impose an affirmative duty on the
managers to act in ‘good faith’?’’ And (2) ‘‘[i]f the answer to the first question
is in the affirmative, did the Appellate Court correctly conclude that the
trial court’s instruction to the jury that § 3.4 of the agreement ‘prohibits
actions that are taken in bad faith’ constituted harmless error?’’ Clinton v.
Aspinwall, 

, 

 (2020).
   We also certified the following issue for the plaintiff’s appeal: ‘‘Did the
Appellate Court correctly conclude that the limited liability company
operating agreement unambiguously provides that an action to amend the
agreement or to involuntarily remove a member shall be performed by the
consent of members controlling 60 percent or more of the company, without
requiring approval by the board of managers?’’ Clinton v. Aspinwall, 

, 

 (2020).
   5
     We also ordered that the parties’ supplemental briefs should ‘‘address
whether Delaware or Connecticut law applies to the final judgment issue. See
Reclaimant Corp. v. Deutsch, 

, 603–604, 

 (2019).’’
   6
     Compare Connelly v. State Farm Mutual Automobile Ins. Co., 

, 1279 n.28 (Del. 2016) (elements of breach of contract are (1) existence
of contract, (2) breach of obligation imposed by that contract, and (3)
resultant damage to plaintiff), and Beard Research, Inc. v. Kates, 

 (Del. Ch.) (elements of breach of fiduciary duty are (1) existence
of fiduciary duty, and (2) defendant’s breach of that duty), aff’d sub nom.
ASDI, Inc. v. Beard Research, Inc., 

 (Del. 2010), with CCT
Communications, Inc. v. Zone Telecom, Inc., 

, 

 (2017) (elements of breach of contract are ‘‘the formation of an agreement, performance by one party, breach of the agreement by the other party,
and damages’’ (internal quotation marks omitted)), and Rendahl v. Peluso,

, 

 (2017) (elements of breach of fiduciary
duty are (1) existence of fiduciary relationship that gives rise to duty of
loyalty, obligation to act in best interests of plaintiff, and obligation to act
in good faith in any matter relating to plaintiff, (2) defendant advanced his
interests to detriment of plaintiff, (3) plaintiff sustained damages, and (4)
damages were proximately caused by breach).
   7
     The plaintiff may, of course, choose to withdraw his fiduciary duty count
to create a final judgment. But, consistent with Meribear Productions, Inc.,
he may do so only after the Appellate Court dismisses the defendants’
appeals. See, e.g., Meribear Productions, Inc. v. 

.
   8
     For example, if the trial court had rendered judgment in favor of the
defendants on the fiduciary duty count, the plaintiff could have appealed
from that adverse ruling.
   9
     This process might function similar to that set out in State v. Polanco,

, 260–63, 

 (2013), which requires that, when a
defendant is found guilty of greater and lesser included offenses in violation
of the double jeopardy clause, the trial court must vacate the verdict on
the lesser included offense.