Valencis v. Nyberg
125 A.3d 1026
Conn. App. Ct.2015Background
- Plaintiffs (Valencis, ACSYS, MIG) paid defendant David Nyberg/CSM for renovation of property; project delayed and cost rose from ~$2M to ~$3.7–3.8M.
- Plaintiffs alleged multiple theories (breach of contract, promissory estoppel, unjust enrichment, fraud, negligent misrepresentation, conversion, statutory theft, CUTPA, etc.) and sought a prejudgment remedy.
- Trial court held a prejudgment remedy hearing, found probable cause on all claims except breach of fiduciary duty, and awarded $1,517,389.40 (including treble statutory-theft damages).
- Court relied on evidence that plaintiffs paid in advance based on Nyberg’s representations (e.g., paying subs weekly, ordering materials up front), subcontractors/suppliers were unpaid, materials not delivered, and no general building permit obtained.
- Nyberg invoked the Fifth Amendment at the hearing; court drew adverse inferences.
- Defendants appealed asserting the court failed to account for defenses, insufficient evidence, and failure to allocate damages by claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court properly consider defendants’ defenses when granting prejudgment remedy? | Plaintiffs argued court considered defenses and weighed them in finding probable cause. | Defendants argued the court failed to expressly address defenses as required by TES Franchising. | Court: trial court sufficiently addressed defenses and is presumed to have considered all evidence; no clear error. |
| Was there sufficient evidence to establish probable cause for contract and reliance-based claims? | Plaintiffs pointed to Nyberg’s assurances, emails, and payments made in reliance. | Defendants argued lack of causation/detrimental reliance and that Nyberg was not personally liable. | Court: evidence (emails, conduct, ambiguous agent disclosure) and adverse inference supported probable cause for personal liability and reliance. |
| Was there sufficient evidence of demand and intent for conversion/statutory theft? | Plaintiffs relied on email demanding return of "any unused funds" and circumstantial evidence of intent (duplicate bills, unpaid subs, retention of funds). | Defendants argued demand lacked specificity and lacked intent to deprive. | Court: demand was sufficiently specific under precedent; intent can be inferred from conduct and adverse inference—probable cause satisfied. |
| Must the trial court allocate prejudgment remedy amount to each claim? | Plaintiffs argued total damages may reflect overlapping theories and statute requires probable amount overall, not per-count allocation. | Defendants argued statute and some cases require probable-cause determination as to amount for each claim. | Court: only required to determine probable amount of damages overall; no clear error in awarding aggregate sum without per-count breakout. |
Key Cases Cited
- TES Franchising, LLC v. Feldman, 286 Conn. 132 (Conn. 2008) (describes standard for prejudgment remedy and presumption that trial court considered defenses)
- Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745 (Conn. 2006) (conversion and statutory theft elements and relationship)
- Klepp Wood Flooring Corp. v. Butterfield, 176 Conn. 528 (Conn. 1979) (agent must disclose principal and identity to avoid personal liability)
- Union Trust Co. v. Heggelund, 219 Conn. 620 (Conn. 1991) (prejudgment remedy requires consideration of validity and amount sought)
- Olin Corp. v. Castells, 180 Conn. 49 (Conn. 1980) (permissible adverse inference from Fifth Amendment assertion in civil proceedings)
- Kosiorek v. Smigelski, 112 Conn. App. 315 (Conn. App. 2009) (trial court must consider defenses and quantify probable damages reasonably)
- Masse v. Perez, 139 Conn. App. 794 (Conn. App. 2012) (intent may be inferred from conduct and surrounding circumstances)