Valencis v. Nyberg ( 2015 )

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STANLEY VALENCIS ET AL.
v. DAVID NYBERG ET AL.
(AC 36320)
Alvord, Mullins and Schaller, Js.
Argued April 7—officially released October 27, 2015
(Appeal from the Superior Court, judicial district of
Hartford, Peck, J.)
Christopher M. Licari, for the appellants
(defendants).
Jill Hartley, for the appellees (plaintiffs).
Opinion
SCHALLER, J. The defendants David Nyberg and
CSM North, LLC (CSM),1 appeal from the judgment of
the trial court awarding a prejudgment remedy in favor
of the plaintiffs, Stanley Valencis, ACSYS, Inc. (ACSYS),
and MIG Ventures, LLC (MIG), in the amount of
$1,517,389.40.2 On appeal, the defendants claim that
(1) the court improperly granted the application for a
prejudgment remedy without taking into account the
defenses raised by the defendants, (2) there was insuffi-
cient evidence to grant the application for a prejudg-
ment remedy, and (3) the court improperly failed to
make a specific finding of damages for each count for
which it found probable cause. We disagree with these
claims, and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal, which stems from
what the court described as a ‘‘construction contract
gone awry.’’ In the plaintiffs’ unsigned complaint
attached to their application for a prejudgment remedy,
they alleged, inter alia, the following causes of action:
breach of express contract, breach of implied contract,
and breach of the covenant of good faith and fair dealing
(contract claims); promissory estoppel, unjust enrich-
ment, breach of fiduciary duty, fraud, negligent misrep-
resentation, conversion, statutory theft, and violation
of General Statutes § 42-110a et seq., the Connecticut
Unfair Trade Practices Act (CUTPA).3 All of the counts
were directed at the defendants, with the exception
of the breach of fiduciary duty, fraud and negligent
misrepresentation counts, which applied only to Nyberg
individually. The parties presented evidence, made oral
argument, and filed briefs. The court found probable
cause on all but the breach of fiduciary duty count and
granted a prejudgment remedy in the amount of
$1,517,389.40.
In granting the prejudgment remedy, the court found
the following facts as stated in its memorandum of
decision. In 2011, Nyberg negotiated the purchase of a
property located at 1577 New Britain Avenue in Farm-
ington (property) in the name of CSM.4 The plaintiffs
acquired the property from CSM. Valencis, the president
of ACSYS, entered into an oral agreement with Nyberg,
who described himself as a ‘‘ ‘handshake kind of busi-
ness person,’ ’’ regarding the renovation of the property,
which would act as the new headquarters of ACSYS.
Under the contract, Nyberg was to act as general
contractor of the project to ‘‘gut and totally renovate
the building,’’ with Gerald Ginsberg, an independent
contractor hired by CSM, acting as the project manager.
Early on in the project, the budget was approximately
$2 million, consisting of a $1.5 million purchase price
and $647,000 for the anticipated design and ‘‘build out.’’
The project initially was projected to be completed in
December, 2011, or January, 2012.
The project was not completed until August, 2012,
at a total cost of between $3.7 and $3.8 million. In
2011 and early 2012, the plaintiffs made a number of
payments to CSM in advance on the basis of Nyberg’s
representation that he could save 30 to 40 percent by
paying for labor and materials up front. This included
payments to CSM for construction work before any was
performed and for materials before they were delivered.
Amid questioning by the plaintiffs regarding when the
work would be performed and when the materials they
had paid for would be delivered, Ginsberg resigned as
project manager and was replaced by Frank Cotrona,
another independent contractor, in late January or early
February, 2012. Cotrona began investigating the status
of payments made by the plaintiffs and the overall prog-
ress of the project. With his help, the plaintiffs eventu-
ally concluded that a number of subcontractors had
not been paid and a variety of materials had not been
purchased, despite the payments made by the plaintiffs
to the defendants. The plaintiffs also discovered that the
defendants never obtained a general building permit.
The court determined that the plaintiffs had met their
burden of establishing probable cause with respect to,
inter alia, their contract claims and the claims for prom-
issory estoppel, unjust enrichment, fraud, negligent mis-
representation, conversion, statutory theft and violation
of CUTPA. The court found treble damages of
$1,205,115.12 pursuant to the statutory theft count; see
General Statutes § 52-564; and $312,374.28 for the
remaining damages, for a total of $1,517,389.40. The
court declined to award punitive damages pursuant to
the CUTPA claim because Nyberg invoked his fifth
amendment privilege against self-incrimination.5 This
appeal followed.
At the outset, we identify the relevant legal principles
and our standard of review. ‘‘We begin with the law
governing prejudgment remedies and our limited role
on review. A prejudgment remedy means any remedy
or combination of remedies that enables a person by
way of attachment, foreign attachment, garnishment or
replevin to deprive the defendant in a civil action of,
or affect the use, possession or enjoyment by such
defendant of, his property prior to final judgment . . . .
General Statutes § 52-278a (d). A prejudgment remedy
is available upon a finding by the court that there is
probable cause that a judgment in the amount of the
prejudgment remedy sought, or in an amount greater
than the amount of the prejudgment remedy sought,
taking into account any defenses, counterclaims or set-
offs, will be rendered in the matter in favor of the
plaintiff . . . . General Statutes § 52-278d (a) (1). . . .
Proof of probable cause as a condition of obtaining a
prejudgment remedy is not as demanding as proof by
a fair preponderance of the evidence. . . . The legal
idea of probable cause is a bona fide belief in the exis-
tence of the facts essential under the law for the action
and such as would warrant a man of ordinary caution,
prudence and judgment, under the circumstances, in
entertaining it. . . . Probable cause is a flexible com-
mon sense standard. It does not demand that a belief
be correct or more likely true than false. . . . Under
this standard, the trial court’s function is to determine
whether there is probable cause to believe that a judg-
ment will be rendered in favor of the plaintiff in a trial
on the merits. . . .
‘‘As for our standard of review, [our Supreme Court
has] stated: [An appellate court’s] role on review of the
granting of a prejudgment remedy is very circum-
scribed. . . . In its determination of probable cause,
the trial court is vested with broad discretion which is
not to be overruled in the absence of clear error. . . .
[W]e have consistently enunciated our standard of
review in these matters. In the absence of clear error,
this court should not overrule the thoughtful decision
of the trial court, which has had an opportunity to assess
the legal issues which may be raised and to weigh the
credibility of at least some of the witnesses. . . . [On
appeal], therefore, we need only decide whether the
trial court’s conclusions were reasonable under the
clear error standard.’’ (Citations omitted; internal quota-
tion marks omitted.) TES Franchising, LLC v. Feld-
man, 286 Conn. 132, 136–38, 943 A.2d 406 (2008); see
also Landmark Investment Group, LLC v. Calco Con-
struction & Development Co., 141 Conn. App. 40, 49–50,
60 A.3d 983 (2013). Under the clear error standard,
we review the record with ‘‘a heightened standard of
deference that exceeds the level of deference afforded
under the abuse of discretion standard’’ and will over-
rule the granting of a prejudgment remedy ‘‘only if we
are left with the definite and firm conviction that a
mistake has been committed.’’ (Internal quotation
marks omitted.) TES Franchising, LLC v. Feldman,
supra, 138 n.6; Travelers Casualty & Surety Co. of
America v. Caridi, 144 Conn. App. 793, 797, 73 A.3d
863 (2013).
I
The defendants claim that the court improperly
granted the prejudgment remedy without taking into
account their defenses and, furthermore, that the evi-
dence was insufficient in light of those defenses. Specif-
ically, they argue that the court failed to give adequate
consideration to the following defenses, or, if consid-
ered, that these defenses resulted in insufficient evi-
dence to grant a prejudgment remedy: (1) the defense
to the contract claims that Nyberg was not liable person-
ally under the contract, (2) the defense to the plaintiffs’
claims for promissory estoppel, fraud, and negligent
misrepresentation that any statements made by the
defendants were not the cause of payments made by
the plaintiffs, (3) the defense to the plaintiffs’ claims
for conversion and statutory theft that the plaintiffs
never made a demand for return of funds and (4) the
defense to the plaintiffs’ claim for statutory theft that
the defendants did not intend to deprive the plaintiffs
of funds.
A
The claim that the trial court failed to consider the
defendants’ defenses is premised on the requirement
in the prejudgment remedy statute, § 52-278d (a), that
in determining probable cause for a prejudgment rem-
edy the court should take ‘‘into account any defenses,
counterclaims or set-offs . . . .’’6
The defendants place great weight on the analysis of
§ 52-278d (a) in TES Franchising, LLC v. Feldman,
supra, 286 Conn. 141–42, claiming that that case
requires a trial court to address specifically any
defenses raised by the defendant.7 We agree that TES
Franchising, LLC, is highly relevant to the present
case, but reject the defendants’ interpretation. In TES
Franchising, LLC, the defendant claimed that, in grant-
ing a prejudgment remedy, the trial court had failed to
consider his defenses sufficiently. Id., 134. Our Supreme
Court clearly stated that this claim did not alter the
standard of review: ‘‘The defendant thereby urges this
court to decide the merits of these claims as a matter
of law using plenary review in light of the trial court’s
allegedly inadequate consideration. The defendant mis-
construes our proper role in reviewing a trial court’s
granting of a prejudgment remedy, however, because
we do not conduct a plenary review of the merits of
defenses and counterclaims raised, but rather our
review is confined to a determination of whether the
trial court’s finding of probable cause constitutes clear
error.’’ Id., 140 n.8. The court further noted that ‘‘[a]n
appellate court is entitled to presume that the trial court
acted properly and considered all the evidence. . . .
The [trial] court’s role in such a hearing is to determine
probable success by weighing probabilities. . . . [T]his
weighing process applies to both legal and factual
issues.’’ (Internal quotation marks omitted.) Id., 142.
The court in TES Franchising, LLC, then determined
that the trial court adequately had considered the
defenses raised: ‘‘Our review of the trial court’s memo-
randum of decision reveals that the court properly took
into account the defendant’s defenses and counter-
claims because the court used the correct legal test,
acknowledged all of the defenses and counterclaims
and explicitly stated that it had considered them.
Although the trial court did not discuss the merits of
each claim, or articulate its reasoning for finding proba-
ble cause with regard to those claims, we presume that
the trial court acted properly and considered all of the
evidence before it. That presumption is further strength-
ened by the trial court’s explicit statement that it had
considered all of the defendant’s defenses and counter-
claims in its determination of probable cause.’’ Id.,
141–42.
The defendants emphasize that a key factor from TES
Franchising, LLC, is absent from the present case.
Specifically, the defendants point to the fact that the
trial court in the present case did not acknowledge their
defenses or explicitly state that it had considered them.
The defendants minimize the fact that the court dis-
cussed the merits of each claim and articulated its rea-
soning for finding probable cause with regard to those
claims. Furthermore, after reviewing the court’s memo-
randum of decision, we conclude that the court specifi-
cally and sufficiently addressed the defendants’
defenses. For example, the court discussed the nature
of the contractual relationship between the parties and
‘‘whether Nyberg is personally liable as to these claims
inasmuch as he failed to disclose that he was acting in
a representative capacity of his principal, CSM.’’ The
court also specifically found that the plaintiffs had justi-
fiably relied on the promise Nyberg made that advanced
payments for labor would be used on the project. With
respect to the defendants’ argument that the plaintiffs
never had made a demand for the return of their money
in the conversion and statutory theft causes of action,
the court specifically stated: ‘‘At some point, the plain-
tiffs came to realize that the monies paid to [the defen-
dants] were not being used in a proper manner or for
their intended purposes in accordance with the contract
between the parties. . . . [In] an e-mail from Valencis
written to Nyberg, wherein Valencis expresses concern
over charges not accounted for, [Valencis] states that
he expect[s] any unused funds to be immediately
returned and appropriate credits issued to questionable
charges.’’ (Internal quotation marks omitted.) Finally,
the court noted that the plaintiffs had ‘‘demonstrated
probable cause as to the element of intent as well as
to the other elements of statutory theft . . . .’’
This analysis was, in fact, more comprehensive than
that of the trial court in TES Franchising, LLC, which
merely referred to, but did not analyze, the defendant’s
defenses and counterclaims in any significant detail; it
merely set forth the legal standard to grant an applica-
tion for a prejudgment remedy. See TES Franchising,
LLC v. Feldman, Superior Court, judicial district of
New Haven, Docket No. CV-05-4013191-S (February 2,
2006); see also TES Franchising, LLC v. Feldman,
supra, 286 Conn. 142 (‘‘the far better practice would
have been for the trial court to set forth its reasoning
with regard to the defenses and counterclaims raised in
opposition to the issuance of a prejudgment remedy’’).
The trial court in the present case stated the legal
standard for granting an application for a prejudgment
remedy, for drawing an adverse inference against a civil
defendant asserting his privilege against self-incrimina-
tion, and for each of the defendants’ defenses. Further-
more, unlike the trial court in TES Franchising, LLC,
the court here expressly set forth its conclusions with
references to the evidence, and made extensive findings
of fact.8 The express consideration of the defenses also
strengthens the presumption that the court acted prop-
erly and took into account all of the evidence before
it. See TES Franchising, LLC v. Feldman, supra, 286
Conn. 142.
We also are guided by our decision in Kosiorek v.
Smigelski, 112 Conn. App. 315, 323–24, 962 A.2d 880,
cert. denied, 291 Conn. 903, 967 A.2d 113 (2009), where
the defendant argued that the trial court had failed to
take his defenses and counterclaims into account when
it granted an application for a prejudgment remedy.
This court determined that, ‘‘[a]lthough the defendant
argues that the court did not take into consideration
his defenses or counterclaims, there is no evidence in
the record to support such a contention. The court
clearly articulated the proper standard in its memoran-
dum of decision, including the necessity of taking into
consideration the defenses and counterclaims of a
defendant.’’ Id. Similarly, in the present case there is
no indication that the trial court failed to take into
account the defendants’ defenses. We thus conclude,
on the basis of the memorandum of decision and the
controlling case law, that the court gave sufficient con-
sideration to the defenses raised by the defendants.
B
The defendants next claim that there was insufficient
evidence to grant the application for a prejudgment
remedy. In considering this issue, we will return to
the defendants’ defenses, but will consider them as
arguments made by the defendants as to whether the
plaintiffs met their burden of proof.
1
The defendants first assert that, with regard to the
contract claims as applied to Nyberg, ‘‘there is insuffi-
cient evidence to establish that it was clearly [Nyberg’s]
intention to assume any personal contractual liability.’’
The proper inquiry, however, is not whether Nyberg
so intended, but, rather, whether Nyberg disclaimed
personal liability by stating that he was acting as an
agent. ‘‘It is clearly the law of this state that [i]t is the
duty of the agent, if he would avoid personal liability
on a contract entered into by him on behalf of his
principal, to disclose not only the fact that he is acting
in a representative capacity, but also the identity of his
principal, as the person dealt with is not bound to
inquire whether or not the agent is acting as such for
another.’’ (Internal quotation marks omitted.) Klepp
Wood Flooring Corp. v. Butterfield, 176 Conn. 528, 532–
33, 409 A.2d 1017 (1979).
Nyberg’s statement that he was a ‘‘ ‘handshake kind
of business person’ ’’ and Valencis’ understanding that
CSM and Nyberg were ‘‘one and the same’’ could form
the basis for probable cause that Nyberg failed to dis-
close that he was an agent, as could the ambiguous
reference in an unsigned contract to ‘‘David W. Nyberg
of CSM North, LLC.’’ Nyberg’s statement that he was a
‘‘ ‘handshake kind of business person’ ’’ implies that
he personally guaranteed his reliability. Valencis’ belief
that CSM and Nyberg were one and the same could
indicate that he believed CSM was merely a trade name
used by Nyberg, rather than a separate entity. There
were no references to Nyberg ‘‘on behalf of’’ CSM, or
‘‘as an agent of’’ CSM. It thus was not clear error for
the court to conclude that the plaintiffs had established
probable cause for Nyberg’s personal liability.
2
The defendants next assert, with regard to the prom-
issory estoppel, fraud and negligent misrepresentation
counts, that the plaintiffs failed to establish probable
cause that the defendants induced the plaintiffs to act
in reliance on their statements.9 ‘‘[U]nder the doctrine
of promissory estoppel, [a] promise which the promisor
should reasonably expect to induce action or forbear-
ance on the part of the promisee or a third person and
which does induce such action or forbearance is binding
if injustice can be avoided only by enforcement of the
promise. A fundamental element of promissory estop-
pel, therefore, is the existence of a clear and definite
promise which a promisor could reasonably have
expected to induce reliance. Thus, a promisor is not
liable to a promisee who has relied on a promise if,
judged by an objective standard, he had no reason to
expect any reliance at all.’’ (Emphasis omitted; internal
quotation marks omitted.) Torringford Farms Assn.,
Inc. v. Torrington, 75 Conn. App. 570, 575, 816 A.2d
736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003);
see also Sturm v. Harb Development, LLC, 298 Conn.
124, 142, 143–44, 2 A.3d 859 (2010) (detrimental reliance
element of fraud and negligent misrepresentation).
‘‘The trier of fact considers all relevant circumstances in
determining whether reliance is reasonable. . . . The
plaintiff’s knowledge of the misrepresentation carries
significant weight.’’ (Citation omitted.) National
Groups, LLC v. Nardi, 145 Conn. App. 189, 195, 75 A.3d
68 (2013).
There was sufficient evidence that the defendants
made representations on which the plaintiffs relied. For
example, Nyberg stated in an e-mail: ‘‘The way I can
[bill] 35 [to] 40 percent less is because I pay my sub[con-
tractors] weekly as well as all materials are ordered up
front for savings. If this is not understood—everyone
needs to. I had a budget on this job. Jerry please show
me changes, etc. Typically the initial costs are signifi-
cant. Jerry please put a weekly job meeting together
that is mandatory for our team including me.’’ Nyberg
represented that he would pay subcontractors weekly
and order materials up front, and he defrayed concerns
regarding escalating costs by stating that initial costs
are significant. The trial court determined that the plain-
tiffs paid the defendants accordingly on the basis of
these representations. In addition, the court properly
drew an adverse inference based on Nyberg’s invoking
his fifth amendment privilege against self-incrimination
and his refusal to answer questions regarding either his
role in invoicing or whether he invoiced for materials
that were never provided. The court’s conclusion that
the plaintiffs had demonstrated probable cause as to
their reliance on the statements made by the defendants
was not clearly erroneous.
3
The defendants next claim that the court lacked suffi-
cient evidence to conclude, with regard to the conver-
sion and statutory theft counts, that the plaintiffs had
demonstrated probable cause that they made a demand
for return of payments made to the defendants. See
Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745,
770–71 905 A.2d 623 (2006) (conversion and statutory
theft have identical factors, with addition of intent
requirement for statutory theft); Label Systems Corp.
v. Aghamohammadi, 270 Conn. 291, 331 n.30, 852 A.2d
703 (2004) (demand requirement where possession not
initially wrongful); see also General Statutes § 52-564
(civil damages for theft); General Statutes § 53a-119
(larceny). The plaintiffs pleaded, and the court relied
on, a statement by Valencis in an e-mail that he expected
‘‘any unused funds to be immediately returned and
appropriate credits issued to questionable charges.’’
This was in the context of an e-mail in which Valencis
also stated that the bank believed that $200,000 of the
$600,000 paid to CSM was unaccounted for and that
the plaintiffs would not be releasing any additional pay-
ments to CSM.
The defendants assert that this demand was not suffi-
ciently specific because it lacked a precise amount and
did not ask for the immediate return of the money.
The defendants fail to cite any case law regarding the
specificity of a demand. In Molski v. Bendza, 116 Conn.
710, 164 A. 387 (1933), the court considered the specific-
ity required by a demand for return. In Molski, as part
of a contract for the sale of land, the parties had agreed
that the plaintiff could remove cut wood from the defen-
dant’s newly acquired property. Id., 710. The defendant
began preventing the plaintiff and others sent by the
plaintiff from picking up the wood. Id., 710–11. The
defendant claimed that the plaintiff’s demand for the
wood was insufficient because he had not demanded
all of it. Id., 711. The court determined that efforts
‘‘made by the plaintiff to remove the wood, [combined]
with the refusal of the defendant to let him enter upon
the premises, serve all the requirements of [the demand]
rule.’’ Id. In the present case, on the basis of Molski,
we conclude that the demand requirement is flexible
enough to encompass the trial court’s finding that a
demand occurred. In the factual situation presented,
the e-mail put the defendants on notice that the plain-
tiffs had requested the immediate return of any unspent
money and either the repayment of or other restitution
for the misspent money. We therefore conclude that it
was not clear error for the court to grant the prejudg-
ment remedy with regard to the conversion and statu-
tory theft counts.
4
The defendants’ final claim of insufficient evidence
is with regard to the statutory theft count. They contend
that the court improperly concluded that the plaintiffs
had demonstrated probable cause that the defendants
intended to deprive the plaintiffs of their money. ‘‘Con-
version can be distinguished from statutory theft as
established by § 53a-119 in two ways. First, statutory
theft requires intent to deprive another of his property;
second, conversion requires the owner to be harmed
by a defendant’s conduct. Therefore, statutory theft
requires a plaintiff to prove the additional element of
intent over and above what he or she must demonstrate
to prove conversion.’’ (Internal quotation marks omit-
ted.) Deming v. Nationwide Mutual Ins. Co., supra,
279 Conn. 771.
Intent may be inferred from the conduct of the par-
ties. See Masse v. Perez, 139 Conn. App. 794, 801, 58
A.3d 273 (2012), cert. denied, 308 Conn. 905, 61 A.3d
1098 (2013). ‘‘It is well established that the question of
intent is purely a question of fact. . . . Intent may be,
and usually is, inferred from the defendant’s verbal or
physical conduct. . . . Intent may also be inferred
from the surrounding circumstances. . . . The use of
inferences based on circumstantial evidence is neces-
sary because direct evidence of the accused’s state of
mind is rarely available. . . . Intent may be gleaned
from circumstantial evidence such as . . . the events
leading up to and immediately following the incident.
. . . Furthermore, it is a permissible, albeit not a neces-
sary or mandatory, inference that a defendant intended
the natural consequences of his voluntary conduct.’’
(Internal quotation marks omitted.) State v. Saez, 115
Conn. App. 295, 302–303, 972 A.2d 277, cert. denied,
293 Conn. 909, 978 A.2d 1113 (2009).
Here, Nyberg continued to assure the plaintiffs that
their payments were necessary while also failing to
pay the subcontractors and suppliers, which provided
evidence of the defendants’ intent. Further, the court
found, on the basis of the evidence, that Nyberg knew
that duplicate bills had been issued and that payment
had been made for materials not received and services
not rendered. After being confronted about this by
Valencis, the defendants nonetheless retained the
funds. The court also emphasized Nyberg’s invocation
of his fifth amendment privilege regarding what hap-
pened to the checks from the plaintiffs, which Ginsberg
said were placed on Nyberg’s desk. See Olin Corp.
v. Castells, 180 Conn. 49, 53–54, 428 A.2d 319 (1980)
(adverse inference based on assertion of fifth amend-
ment privilege component of probable cause for intent
requirement in fraudulent conveyance action). We con-
clude, therefore, that this evidence was sufficient for the
court to determine that the plaintiffs had demonstrated
probable cause for the intent requirement of their statu-
tory theft claim.10
II
The defendants’ final claim is that the court improp-
erly failed to make a specific finding of damages for
each count for which it found probable cause. We are
not persuaded.
The defendants provide scant legal support for their
proposition. They cite to the following passage from
Kosiorek v. Smigelski, supra, 112 Conn. App. 322–23:
‘‘[S]ection 52-278d (a) requires that a trial court make
a probable cause determination as to both the validity
of the plaintiff’s claim and the amount of the remedy
sought. See General Statutes § 52-278d (a); see also
Union Trust Co. v. Heggelund, 219 Conn. 620, 625, 594
A.2d 464 (1991).’’ (Internal quotation marks omitted.)
The court in Kosiorek also stated, however, that a trial
court only need determine ‘‘the probable amount of
the damages involved’’ and that ‘‘the likely amount of
damages need not be determined with mathematical
precision . . . the plaintiff bears the burden of pre-
senting evidence [that] affords a reasonable basis for
measuring her loss.’’ Kosiorek v. Smigelski, supra, 323.
In Union Trust Co. v. Heggelund, supra, 219 Conn.
625, the court stated: ‘‘In undertaking the probable
cause analysis that our present statute requires, a court
is required to consider not only the validity of the plain-
tiff’s claim but also the amount that is being sought.
See Solomon v. Aberman, 196 Conn. 359, 379, 493 A.2d
193 (1985); Essex Group, Inc. v. Ducci Electric Co.,
181 Conn. 524, 525–26, 436 A.2d 16 (1980); Ledgebrook
Condominium Assn., Inc. v. Lusk Corporation, [172
Conn. 577, 585, 376 A.2d 60 (1977)].’’ In Solomon v.
Aberman, supra, 379, the court stated that, ‘‘[a]s a mat-
ter of general experience, a determination of a claim’s
probable validity normally will entail at least some con-
sideration of the amount of damages which may be
found upon a full trial.’’ (Internal quotation marks omit-
ted.) In Essex Group, Inc. v. Ducci Electric Co., supra,
181 Conn. 525–26, our Supreme Court determined that
the trial court had not calculated the amount of damages
properly and, therefore, the court erred in granting the
prejudgment remedy. None of these cases examined
whether the court was required to analyze damages for
each count. In all of these cases, damages are described
with reference to the plaintiff’s total loss or the judg-
ment following trial, rather than to each individual
count. See Solomon v. Aberman, supra, 379 (noting trial
courts should consider ‘‘amount of damages’’);
Ledgebrook Condominium Assn., Inc. v. Lusk Corp.,
supra, 585 (prejudgment remedy applications concern-
ing ‘‘unliquidated damages . . . should state facts suf-
ficient to enable the court to determine the probable
amount of the damages involved’’). This aligns with the
language of § 52-278d (a) (1), which provides in relevant
part that the court shall determine ‘‘whether or not
there is probable cause that a judgment in the amount
of the prejudgment remedy sought, or in an amount
greater than the amount of the prejudgment remedy
sought. . . will be rendered in the matter in favor of
the plaintiff . . . .’’ There is no indication that Kosiorek
or its predecessors intended to expand on the statu-
tory requirement.11
Furthermore, other cases involving prejudgment rem-
edies have not divided the damages among the different
claims. In Kinsale, LLC v. Tombari, 95 Conn. App. 472,
475 n.3, 478, 897 A.2d 646 (2006), this court affirmed the
trial court’s judgment granting a prejudgment remedy
despite the lack of clarity regarding which claims led
to the damages: ‘‘The basis of the $100,000 attachment
is not totally clear. The court found probable cause as
to three of the plaintiffs’ claims: nuisance, malicious
erection of a structure and libel. Because the evidence
of damages presented at the hearing related to the
diminished value of the plaintiffs’ properties, we
assume that the prejudgment remedy was based on the
claims of nuisance or malicious erection of a structure
or both. Although the defendants filed a motion for
articulation of the court’s decision, they did not seek
an elucidation of the amount awarded for each of the
claims for which the court found probable cause.’’
Although other courts have discussed damages on a
claim by claim basis, there is no indication that they
were required to do so when, for example, damages
may be duplicative. See Centimark Corp. v. Village
Manor Associates Ltd. Partership, 113 Conn. App. 509,
526–27, 967 A.2d 550 (determining damages for breach
of contract, then stating that damages applied to other
counts as well), cert. denied, 292 Conn. 907, 973 A.2d
103 (2009); see also Roberts v. TriPlanet Partners, LLC,
950 F. Supp. 2d 418, 423 n.3 (D. Conn. 2013) (court
granted prejudgment remedy but only considered cer-
tain claims because plaintiff did not offer evidence of
additional damages based on remaining claims).12
In determining damages in the present case, the trial
court separated those damages subject to statutory tre-
ble damages from those damages which were not. It
carefully analyzed the evidence to determine the
amounts of both categories of damages. The defendants
never asked for an allocation of the damages as to
each count, nor have the defendants pointed to a legal
requirement that the court do so. The various counts
are alternative approaches to claim the appropriate
amount of damages for the single series of events that
led to a loss by the plaintiffs. For these reasons, we
conclude that the court did not commit clear error by
failing to make a specific finding of damages for each
of the plaintiffs’ counts. Accordingly, we conclude that
the court did not commit clear error in granting the
plaintiffs’ application for a prejudgment remedy.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Gerald Ginsberg, JG Electric, LLC, and Level Design Group, LLC, also
were named in the application for a prejudgment remedy as defendants.
The plaintiffs stated at the hearing on the application that it was directed
at only Nyberg and CSM, whom we refer to collectively as the defendants
and individually, when necessary, by name.
2
Pursuant to General Statutes § 52-278l (a) (1), an order granting a prejudg-
ment remedy is considered a final judgment for purposes of appeal.
3
The plaintiffs also alleged negligence, civil conspiracy, slander of title,
and abuse of process. They withdrew the slander of title and abuse of
process counts prior to the court’s decision.
4
The court also stated that Nyberg was the manager of Acton, LLC, which
is the sole member of CSM.
5
Nyberg’s invocation of his fifth amendment privilege was based on a
criminal complaint that was filed against him.
6
General Statutes § 52-278d (a) provides: ‘‘The defendant shall have the
right to appear and be heard at the hearing. The hearing shall be limited to
a determination of (1) whether or not there is probable cause that a judgment
in the amount of the prejudgment remedy sought, or in an amount greater
than the amount of the prejudgment remedy sought, taking into account
any defenses, counterclaims or set-offs, will be rendered in the matter in
favor of the plaintiff, (2) whether payment of any judgment that may be
rendered against the defendant is adequately secured by insurance, (3)
whether the property sought to be subjected to the prejudgment remedy is
exempt from execution, and (4) if the court finds that the application for
the prejudgment remedy should be granted, whether the plaintiff should be
required to post a bond to secure the defendant against damages that may
result from the prejudgment remedy or whether the defendant should be
allowed to substitute a bond for the prejudgment remedy. If the court, upon
consideration of the facts before it and taking into account any defenses,
counterclaims or set-offs, claims of exemption and claims of adequate
insurance, finds that the plaintiff has shown probable cause that such a
judgment will be rendered in the matter in the plaintiff’s favor in the amount
of the prejudgment remedy sought and finds that a prejudgment remedy
securing the judgment should be granted, the prejudgment remedy applied
for shall be granted as requested or as modified by the court. The court
shall not grant the prejudgment remedy if the prejudgment remedy or applica-
tion for such prejudgment remedy was dismissed or withdrawn pursuant
to the provisions of section 52-278j.’’ (Emphasis added.)
7
In TES Franchising, LLC v. Feldman, supra, 286 Conn. 141, the court
observed that a valid defense would defeat a finding of probable cause.
8
We also note that the defendants failed to seek an articulation of the
court’s memorandum of decision. Under these facts and circumstances,
however, it is not necessary to remand the case to the trial court for an
articulation. See Practice Book § 60-5.
9
The defendants also refer to this concept as causation. We will use the
term ‘‘detrimental reliance,’’ as that is the terminology used in the case law.
10
The defendants also claim that the court’s finding on the intent element
is inconsistent with its findings that the defendants’ initial possession of
the plaintiffs’ money was rightful and that the plaintiffs’ actions did not
merit a finding of reckless indifference to support the CUTPA claim. The
defendants do not provide further support for this position. There is no
apparent contradiction between the rightful possession of money initially,
which relates to the plaintiffs’ belief that they paid the defendants for a
service, and the defendants’ intent to deprive the plaintiffs of that money
by never providing the service. The conversion and statutory theft findings
are, therefore, not inconsistent. In ruling on the CUTPA claim, the court
stated that it declined ‘‘to award such damages given that Nyberg has invoked
his fifth amendment privilege against self-incrimination,’’ and cited to Gar-
gano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987), which states
that ‘‘[a]warding punitive damages and attorney’s fees under CUTPA is
discretionary . . . .’’ Rather than making a finding that the plaintiffs’ actions
did not merit a finding of reckless indifference, as the defendants argue on
appeal, the court was exercising its discretion based on the situation in which
Nyberg found himself given the outstanding criminal charges against him.
11
The defendants appear to misapprehend the meaning of the phrase
‘‘cause of action’’ in Kosiorek v. Smigelski, supra, 112 Conn. App. 323, to
mean that the trial court must determine separate damages for each claim
or count. The terms cause of action and claim are not always synonymous.
‘‘It is important to recognize the distinction between a claim and a cause
of action, terms that oftentimes are confused and even used interchangeably.
For the purposes of the regulation of pleadings and procedure in civil actions,
a plaintiff’s cause of action constitutes a single group of facts which are
claimed to have brought about an unlawful injury to the plaintiff for which
one or more of the defendants are liable, without regard to the character
of the legal rights of the plaintiff which have been violated. . . . In order
for the facts to constitute a single group, the liability of each defendant
must, in some aspect of the proof permissible under the allegations of the
complaint, relate to and depend upon a single primary breach of duty. . . .
Therefore, when a plaintiff asserts multiple claims, which are legal theories
that arise out of and depend upon the group of facts that brought about a
single primary breach of duty, there is but one cause of action. . . . Despite
there being one cause of action, the plaintiff can maintain separate claims
against individual defendants, who need not be jointly liable for each claim.’’
(Citations omitted; emphasis in original; footnote omitted; internal quotation
marks omitted.) JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC,
312 Conn. 662, 684–85, 94 A.3d 622 (2014). ‘‘A cause of action is that single
group of facts that is claimed to have brought about an unlawful injury to
the plaintiff and that entitles the plaintiff to relief. . . . Even though a single
group of facts may give rise to rights to several different kinds of relief, it
is still a single cause of action.’’ (Citation omitted.) McCue v. Birmingham,
88 Conn. App. 630, 636, 870 A.2d 1126, cert. denied, 274 Conn. 905, 876 A.2d
14 (2005). We view the reference to cause of action in Kosiorek, therefore,
as meaning the entire factual situation giving rise to the various legal claims
advanced by the plaintiffs.
12
Again, we note that the defendants did not ask the trial court for an
articulation of its findings. ‘‘Although we find the court’s ruling somewhat
ambiguous, without the clear lens of an articulation, we cannot conclude
that the court did not consider the defendants’ arguments and setoff in
setting the value of the attachment.’’ (Footnote omitted.) Morris v. Cee Dee,
LLC, 90 Conn. App. 403, 419, 877 A.2d 899, cert. granted, 275 Conn. 929,
883 A.2d 1245 (2005) (appeal withdrawn March 13, 2006).