Certo v. Fink

60 A.3d 372, 140 Conn. App. 740, 2013 WL 536110, 2013 Conn. App. LEXIS 100
CourtConnecticut Appellate Court
DecidedFebruary 19, 2013
DocketAC 33955
StatusPublished
Cited by6 cases

This text of 60 A.3d 372 (Certo v. Fink) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Certo v. Fink, 60 A.3d 372, 140 Conn. App. 740, 2013 WL 536110, 2013 Conn. App. LEXIS 100 (Colo. Ct. App. 2013).

Opinion

Opinion

ESPINOSA, J.

The self-represented defendant James Fink1 appeals from the judgment of the trial court rendered in favor of the plaintiffs, Paul V. Certo, Jr., and [742]*742Carmen J. Barry, in connection with the underlying civil action in which the plaintiffs sought monetary damages and injunctive relief from the defendants. The defendant claims that the trial court improperly (1) awarded more relief to the plaintiffs than was demanded in their amended complaint; (2) relied on the plaintiffs’ estimate of damages, in lieu of other evidence presented that would have provided a more accurate calculation of damages, to determine the plaintiffs’ damages award; (3) prevented the defendant from submitting certain evidence that could have reduced the amount of damages claimed and (4) denied the defendant’s motion for the entry of a nonsuit against the plaintiffs during the hearing in damages. The defendant also challenges the court’s judgment on the ground that he received ineffective assistance from his trial counsel. We dismiss the defendant’s appeal insofar as it relates to any claims raised by the defendant on behalf of Book Drives, Inc. (Book Drives), and we affirm the judgment of the trial court with regard to the remainder of the appeal.

The following facts as found by the court and procedural history are relevant to our resolution of this appeal. The plaintiffs and the defendant each owned a membership interest in a charitable organization, Books Across America, LLC (Books Across America). Two thirds of Books Across America’s profits was used as income for the organization. The defendant was the managing member of Books Across America. On September 14, 2006, the defendant physically locked Certo out of the building in which Books Across America is located and prohibited his further involvement with Books Across America. In early December, 2006, the defendant did the same to Barry. The defendant refused to pay any profits to the plaintiffs. The defendant filed articles of dissolution for Books Across America even though no action had been taken legally to dissolve or to wind up the affairs of the organization. The defendant [743]*743paid his personal expenses with funds from Books Across America’s bank account and assets, and he illegally used the assets to benefit himself and his family. He diverted Books Across America funds and assets to his wife. He diverted assets of Books Across America to New England Book Company, LLC (New England Book), and, later, fraudulently conveyed assets of Books Across America and New England Book to Book Drives, another business for which the defendant is the managing officer.

The plaintiffs commenced the underlying action in January, 2007. On November 1,2007, the plaintiffs filed a motion to compel and for sanctions pursuant to Practice Book § 13-14 for the defendant’s failure to comply with requests for production of documents and failure to respond to certain questions during his deposition. The plaintiff asked for sanctions and an entry of default as part of their requested relief. The court, Elgo, J., granted the plaintiffs’ motion and ordered the defendant to cooperate fully in his deposition and with all requests for production, noting that failure to comply with the order would, upon motion, result in default. On December 12, 2007, the plaintiffs filed the operative amended complaint alleging, inter alia, that the defendant (1) breached his fiduciary duty to the plaintiffs, (2) committed common-law conversion, (3) acted egregiously, wil-fully, intentionally and/or with reckless disregard for the rights of the plaintiffs, (4) breached an implied contract with the plaintiffs, (5) unjustly enriched himself and (6) fraudulently conveyed assets in violation of General Statutes § 52-552a et seq. On December 17, 2007, the plaintiffs filed a motion for default against the defendants, for nonsuit of the defendants’ counterclaim, and for sanctions due to the defendant’s repeated failure to produce the documents requested at his deposition. The court, Graham, J., granted the plaintiffs’ motion on January 11, 2008.

[744]*744By virtue of the default against the defendants, the court, Hon. Richard, M. Rittenband, judge trial referee, deemed all of the allegations of the amended complaint admitted and proven. The court concluded, again by virtue of the defendants’ default, that the plaintiffs met their obligation of proving the defendants’ liability for all counts of the amended complaint. A hearing in damages was held on June 2, 3, 8, 9 and 10, 2011. The court, with the agreement of the parties, allowed the parties to complete compliance with discovery during the hearing; thereafter, the defendant still failed to comply fully with discovery. On the basis of the evidence presented at the hearing in damages, the court also concluded that the plaintiffs had satisfied their burden of proving their damages.

The court rendered judgment in favor of the plaintiffs, ordering the defendants to pay for the plaintiffs’ respective shares of the profits of Books Across America.2 The court also set aside and declared null and void, as to the plaintiffs, (1) Books Across America’s conveyance of its rights, title and interest in its assets to New England Book, (2) the defendant’s conveyance of assets of Books Across America to New England Book and his wife and (3) the defendant’s transfer of any moneys and assets from Books Across America and New England Book to Book Drives. In addition, the court issued two temporary and permanent injunctions: one that required the defendants to send all sums, net expenses, generated by the operations of Books Across America and New England Book to the plaintiffs, and another that required Book Drives to turn over any of its profits to the plaintiffs. The court also ordered the creation of constructive and/or resulting trusts in favor [745]*745of the plaintiffs on all proceeds and profits of the defendants and on all accounts and assets of Book Drives. The defendant filed the present appeal on October 19, 2011. Additional facts will be set forth as necessary.

I

The defendant first claims that the court awarded more relief to the plaintiffs than was demanded in their amended complaint. The defendant argues that, because the plaintiffs never moved to add Book Drives as a party defendant to the case or amended their complaint to include relief involving Book Drives, the court abused it discretion by ordering an injunction against Book Drives requiring it to turn over its profits to the plaintiffs and by awarding the assets of Book Drives to the plaintiffs.3 Specifically, the defendant claims that the court’s orders violated Book Drives’ fourteenth amendment due process rights because it was an unrelated, unrepresented nonparty that was not involved in this case. We dismiss the defendant’s first claim.

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.” Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). “Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . Aggrievement, in essence, is appellate standing. . . . In the appellate context, [a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . .

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Cite This Page — Counsel Stack

Bluebook (online)
60 A.3d 372, 140 Conn. App. 740, 2013 WL 536110, 2013 Conn. App. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/certo-v-fink-connappct-2013.