140 Conn. App. 740
Conn. App. Ct.2013Background
- Defendant James Fink appeals a trial court judgment in favor of Paul Certo Jr. and Carmen Barry concerning Books Across America, LLC and related entities.
- Fink allegedly locked Certo and Barry out of Books Across America, diverted assets, and used funds to benefit himself and family, including transfers to New England Book Company and Book Drives.
- Plaintiffs asserted fiduciary breach, conversion, unjust enrichment, fraud, and related remedies after default against the defendants following discovery sanctions.
- The court, by default against the defendants, deemed amended-complaint allegations admitted and proven, and held a damages hearing in 2011.
- Judgment ordered profits share payments to Certo and Barry, nullified certain transfers to New England Book and Book Drives, and imposed constructive or resulting trusts on Book Drives assets; injunctions required turnover of profits.
- Book Drives, not a party to this appeal, had its assets ordered subject to trusts; defendant raised claims only on behalf of Book Drives and himself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to appeal regarding Book Drives | Certo and Barry; Book Drives no stake or representation | Fink appeals on behalf of Book Drives without standing | Appeal on Book Drives issues dismissed for lack of standing. |
| Reliance on plaintiffs' damages estimate | Damages based on informed estimates from plaintiffs | Should have used other evidence for calculation | Court did not clearly err; damages supported by credible, informed estimates. |
| Admission of disputed evidence at damages hearing | Discovery sanctions valid; evidence excluded appropriately | Practice Book § 17-40 should trump sanctions | No abuse; sanctions proper; evidence exclusion affirmed. |
| Motion for nonsuit during damages hearing | Motion untimely and waived; records produced earlier | Delay and failure to produce materials warranted nonsuit | Court did not abuse discretion in denying nonsuit. |
| Ineffective assistance of counsel | Civil-rights defense; asserts trial counsel failures | No right to effective assistance in civil cases; record inadequate | Claim fails; no ineffective-assistance remedy in civil action. |
Key Cases Cited
- Webster Bank v. Zak, 259 Conn. 766 (2002) (standing and aggrievement framework; appellate jurisdiction)
- Nanni v. Dino Corp., 117 Conn. App. 61 (2009) (aggrievement test for appellate standing)
- Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509 (2009) (appellate review of factual findings; clear-error standard)
- Gianetti v. Norwalk Hospital, 304 Conn. 754 (2012) (damages must be proved with reasonable certainty)
- Otwell v. Bulduc, 76 Conn. App. 775 (2003) (abuse-of-discretion standard for trial rulings)
- Expressway Associates II v. Friendly Ice Cream Corp., 34 Conn. App. 543 (1994) (pro se representation limits for non-attorneys)