Preview
DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT
:
IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM
CENTRAL HYUNDAI :
:
VS. : AT PUTNAM
:
BRENT MATTSON : JANUARY 11, 2023
MEMORANDUM IN SUPPORT OF DEFENDANT’S
PROPOSED ORDER OF COMPLIANCE, # 139.00
The defendant, Brent Mattson, submits this memorandum in connection with the
remote hearing scheduled in this matter for January 17, 2023. That hearing will be the third
hearing on Mr. Mattson’s Motion for Order of Compliance, dated March 31, 2022 (121.00)
(“Defendant’s Motion”).
These proceedings, which have extended for more than nine (9) months, arise in
substantial part from Mr. Mattson’s attempt to obtain discovery on the plaintiff’s claim for
damages, most particularly its allegation that he has wrongfully caused “numerous
customers [to] cease[] doing business with the plaintiff.” (Revised Complaint, #108.00,
Count Seven, ¶ 45.) To date, that effort has been the litigation equivalent of pulling teeth.
The first hearing on the Defendant’s Motion was held before this court (Lohr, J.) on
August 15, 2022. Following that hearing, the court issued an order (#121.20) requiring the
plaintiff to respond to four categories of “bullet points” identified in a memorandum that
Mr. Mattson had filed (Defendant’s First Memorandum, #132.00). Those bullet points
included “the identity of the allegedly lost customers,” “the files for those lost customers,”
“explanation of the ‘money and/or property’ that the defendant supposedly took,” and
“calculation of the plaintiff’s alleged damages.” Defendant’s First Memorandum, p. 5.
On September 14, 2022, the plaintiff served upon the defendant – but did not file
with the court – the “Plaintiff’s Responses to the Defendant’s Four Bullet Points Per Court
Order Dated August 15, 2022” (“Plaintiff’s September 2022 Response”).1 The Plaintiff’s
September 2022 Response can be found at #135.00, as an attachment to a supplemental
memorandum filed by Mr. Mattson on September 16, 2022 (Defendant’s Second
Memorandum).
In the Plaintiff’s September 2022 Response, the plaintiff explained that the only
“money and/or property” that Mr. Mattson supposedly took was customer information, and
identified exactly one (1) supposedly lost customer, “A&B Transportation” [sic: AB
Transportation, LLC]. In response to the fourth bullet point, the plaintiff provided the
following as its “damage calculation”:
The Plaintiff’s damages are calculated as follows:
Lost Gross Profit on Parts and Service $ 9,750.00
Lost Gross Profit on Sales $45,000.00
Total Lost Profit from A & B $54,750.00
1
The plaintiff did file a Notice of Compliance, at #134.00.
2
Appended to that filing were printouts showing the plaintiff’s transaction history
with AB Transportation and its principal, Joshua Brown. As Mr. Mattson pointed out in the
Defendant’s Second Memorandum, that transaction history showed that after Mr. Mattson’s
resignation from the plaintiff, the “lost” customer AB Transportation and its owner had
bought two (2) vehicles from the plaintiff, and had had nearly 30 service appointments with
the plaintiff.
So, in the world according to the plaintiff:
“numerous customers” actually means “one customer”; and
“ceased doing business” actually means “did less business,” a little, maybe or maybe
not.
Mr. Mattson responded to the Plaintiff’s September 2022 Response by filing the
Defendant’s Second Memorandum, pointing out the continuing, gross inadequacy of the
plaintiff’s discovery response, and by reclaiming the Defendant’s Motion.
The second hearing on the Defendant’s Motion was held before this court (Lohr, J.)
on November 7, 2022. At that hearing, the undersigned argued for dismissal of the case.
The court declined to go that far, but did indicate that the plaintiff could fairly be limited, in
trying to prove damage, to lost business from AB Transportation. The court invited both
sides to submit proposed orders of compliance, which they did: the defendant’s is at
#139.00, and the plaintiff’s is at #143.00. The court then ordered a follow-up hearing,
which is now scheduled for January 17, 2023.
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The defendant submits this memorandum in support of his proposed order of
compliance (#139.00), which includes the following elements:
That the plaintiff be and hereby is precluded from offering, as an element of
claimed damage, evidence of any reduced or lost business, revenue, income or
profit from any customer other than AB Transportation, LLC (a/k/a A&B
Transportation), its owners and affiliates; and
That the plaintiff be and hereby is precluded from offering, as an element of
claimed damage, evidence of any reduced or lost business, revenue, income or
profit from AB Transportation, LLC (a/k/a A&B Transportation), its owners and
affiliates, unless within fifteen (15) days of entry of this order, the plaintiff
supplements its discovery response by providing to the defendant (i) a detailed
explanation of its calculation of the claimed lost profit and (ii) copies of financial
records and other documents sufficient, under the standard set forth in American
Diamond Exchange, Inc. v. Alpert, 203 Conn. 494 (2011), to support a claim for
lost profit; and
That the plaintiff be and hereby is precluded from offering evidence of any other
form of claimed damage.
Bullet points #1 and #3 are self-evident: more than a year and a half into the case,
the plaintiff has failed to identify a single category of claimed damage aside from the “lost”
[sic] customer AB Transportation. We won’t belabor that point. We write to elucidate the
reference, in bullet point #2, to the American Diamond Exchange v. Alpert case.
In that case, the named defendant had been employed by the plaintiff, a jewelry
retailer, as an estate buyer. Unknown to the plaintiff, Alpert ran a side business, diverting
prospective customers for his own benefit, telling them that the plaintiff was not
interested in buying their jewelry but that he wanted to buy the items personally to gift to
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his wife. He would then resell the items for profit. The plaintiff sued both Alpert and his
wife, co-owners of the bank account into which the illicit proceeds were deposited.
The trial featured little or no evidence about what specific items of jewelry Alpert
had diverted, and thus no evidence about how much the plaintiff would have paid for a
particular item or how much the plaintiff likely would have sold it for. The trial court
therefore used the following methodology to calculate damages. Relying on the
defendants’ bank statements, the trial court found that the gross proceeds from diverted
transactions aggregated $152,449.63. Next, crediting Alpert’s testimony that his average
markup on diverted sales was in the range of 45% to 50%, the court used the midpoint of
47.5% and thus concluded that the acquisition cost for the diverted pieces was
$103,355.68. Finally, crediting the testimony of the plaintiff’s president that the
company realized a minimum markup of 100% on estate jewelry sales, the trial court
used this figure of $103,355.68 as the measure of damages, and entered judgment for the
plaintiff in this amount.
But the Connecticut Supreme Court reversed. The court noted that lost profits
must be proven with “reasonable certainty,” and held that the plaintiff’s evidence was
wholly insufficient to meet that standard. Specifically, the blanket assertion by the
plaintiff’s president that the company realized at least a 100% markup “every time” was
inadequate. “At a minimum, opinions or estimates of lost profits must be based on
objective facts, figures, or data from which the amount of lost profits may be ascertained.
… While the modern tendency is toward greater liberality in the requirements for
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providing lost profits, it is the unvarying rule that the evidence of such certainty as the
nature of the case permits should be produced.” 203 Conn. at 512.
The court went on to hold that the plaintiff should have produced “objective,
nonspeculative, documentary proof of its profit margins, such as, for example, accounting
data of its historical earnings, or some other evidence documenting its profit margins on
comparable consignment or estate jewelry pieces. The plaintiff’s failure to produce such
evidence, which we must assume was readily available to the plaintiff, requires us to
conclude that it has not met its burden of establishing its losses with reasonable
certainty.” Id.
Here, the plaintiff has identified, as its sole form of damage, lost profit resulting
from supposedly “lost” business from AB Transportation. In the Plaintiff’s September
2022 Response, the plaintiff provided a raw number for “Lost Gross Profit on Parts and
Service,” and a raw number for “Lost Gross Profit on Sales,” but not a hint as to how those
numbers were arrived at. The documents showed nothing more than the plaintiff’s
transaction history with AB Transportation and its owner, pre- and post- Mr. Mattson’s
resignation from the company.
It is crystal clear that, under the standard of the Alpert case, the plaintiff herein has
failed to produce sufficient information and documentation about “lost profit” that would
pass muster at trial. It is time – indeed, long overdue – to hold the plaintiff’s feet to the fire,
and require the plaintiff to either provide full discovery of its damages claim, or finally
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admit that it can’t. The defendant respectfully submits that his proposed Order of
Compliance, if entered by the court, would serve that worthy purpose.
DEFENDANT,
BRENT MATTSON
By 403444
William J. O’Sullivan
O’Sullivan McCormack Jensen & Bliss PC
180 Glastonbury Boulevard, Suite 210
Glastonbury, CT 06033
Phone: (860) 258-1993
Fax: (860) 258-1991
wosullivan@omjblaw.com
Juris # 407344
His Attorneys
CERTIFICATION
I hereby certify that on January 11, 2023, a copy of the above was or will
immediately be mailed or delivered electronically or non-electronically to all counsel and
self-represented parties of record and that written consent for electronic delivery was
received from all counsel and self-represented parties of record who were or will
immediately be electronically served.
Service list:
John Wolfson, Esq.
Feiner Wolfson LLC
One Constitution Plaza
Hartford, CT 06103
jwolfson@feinerwolfson.com
403444
William J. O’Sullivan
7
Preview
DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT : IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM CENTRAL HYUNDAI : : VS. : AT PUTNAM : BRENT MATTSON : JANUARY 11, 2023 MEMORANDUM IN SUPPORT OF DEFENDANT’S PROPOSED ORDER OF COMPLIANCE, # 139.00 The defendant, Brent Mattson, submits this memorandum in connection with the remote hearing scheduled in this matter for January 17, 2023. That hearing will be the third hearing on Mr. Mattson’s Motion for Order of Compliance, dated March 31, 2022 (121.00) (“Defendant’s Motion”). These proceedings, which have extended for more than nine (9) months, arise in substantial part from Mr. Mattson’s attempt to obtain discovery on the plaintiff’s claim for damages, most particularly its allegation that he has wrongfully caused “numerous customers [to] cease[] doing business with the plaintiff.” (Revised Complaint, #108.00, Count Seven, ¶ 45.) To date, that effort has been the litigation equivalent of pulling teeth. The first hearing on the Defendant’s Motion was held before this court (Lohr, J.) on August 15, 2022. Following that hearing, the court issued an order (#121.20) requiring the plaintiff to respond to four categories of “bullet points” identified in a memorandum that Mr. Mattson had filed (Defendant’s First Memorandum, #132.00). Those bullet points included “the identity of the allegedly lost customers,” “the files for those lost customers,” “explanation of the ‘money and/or property’ that the defendant supposedly took,” and “calculation of the plaintiff’s alleged damages.” Defendant’s First Memorandum, p. 5. On September 14, 2022, the plaintiff served upon the defendant – but did not file with the court – the “Plaintiff’s Responses to the Defendant’s Four Bullet Points Per Court Order Dated August 15, 2022” (“Plaintiff’s September 2022 Response”).1 The Plaintiff’s September 2022 Response can be found at #135.00, as an attachment to a supplemental memorandum filed by Mr. Mattson on September 16, 2022 (Defendant’s Second Memorandum). In the Plaintiff’s September 2022 Response, the plaintiff explained that the only “money and/or property” that Mr. Mattson supposedly took was customer information, and identified exactly one (1) supposedly lost customer, “A&B Transportation” [sic: AB Transportation, LLC]. In response to the fourth bullet point, the plaintiff provided the following as its “damage calculation”: The Plaintiff’s damages are calculated as follows: Lost Gross Profit on Parts and Service $ 9,750.00 Lost Gross Profit on Sales $45,000.00 Total Lost Profit from A & B $54,750.00 1 The plaintiff did file a Notice of Compliance, at #134.00. 2 Appended to that filing were printouts showing the plaintiff’s transaction history with AB Transportation and its principal, Joshua Brown. As Mr. Mattson pointed out in the Defendant’s Second Memorandum, that transaction history showed that after Mr. Mattson’s resignation from the plaintiff, the “lost” customer AB Transportation and its owner had bought two (2) vehicles from the plaintiff, and had had nearly 30 service appointments with the plaintiff. So, in the world according to the plaintiff: “numerous customers” actually means “one customer”; and “ceased doing business” actually means “did less business,” a little, maybe or maybe not. Mr. Mattson responded to the Plaintiff’s September 2022 Response by filing the Defendant’s Second Memorandum, pointing out the continuing, gross inadequacy of the plaintiff’s discovery response, and by reclaiming the Defendant’s Motion. The second hearing on the Defendant’s Motion was held before this court (Lohr, J.) on November 7, 2022. At that hearing, the undersigned argued for dismissal of the case. The court declined to go that far, but did indicate that the plaintiff could fairly be limited, in trying to prove damage, to lost business from AB Transportation. The court invited both sides to submit proposed orders of compliance, which they did: the defendant’s is at #139.00, and the plaintiff’s is at #143.00. The court then ordered a follow-up hearing, which is now scheduled for January 17, 2023. 3 The defendant submits this memorandum in support of his proposed order of compliance (#139.00), which includes the following elements: That the plaintiff be and hereby is precluded from offering, as an element of claimed damage, evidence of any reduced or lost business, revenue, income or profit from any customer other than AB Transportation, LLC (a/k/a A&B Transportation), its owners and affiliates; and That the plaintiff be and hereby is precluded from offering, as an element of claimed damage, evidence of any reduced or lost business, revenue, income or profit from AB Transportation, LLC (a/k/a A&B Transportation), its owners and affiliates, unless within fifteen (15) days of entry of this order, the plaintiff supplements its discovery response by providing to the defendant (i) a detailed explanation of its calculation of the claimed lost profit and (ii) copies of financial records and other documents sufficient, under the standard set forth in American Diamond Exchange, Inc. v. Alpert, 203 Conn. 494 (2011), to support a claim for lost profit; and That the plaintiff be and hereby is precluded from offering evidence of any other form of claimed damage. Bullet points #1 and #3 are self-evident: more than a year and a half into the case, the plaintiff has failed to identify a single category of claimed damage aside from the “lost” [sic] customer AB Transportation. We won’t belabor that point. We write to elucidate the reference, in bullet point #2, to the American Diamond Exchange v. Alpert case. In that case, the named defendant had been employed by the plaintiff, a jewelry retailer, as an estate buyer. Unknown to the plaintiff, Alpert ran a side business, diverting prospective customers for his own benefit, telling them that the plaintiff was not interested in buying their jewelry but that he wanted to buy the items personally to gift to 4 his wife. He would then resell the items for profit. The plaintiff sued both Alpert and his wife, co-owners of the bank account into which the illicit proceeds were deposited. The trial featured little or no evidence about what specific items of jewelry Alpert had diverted, and thus no evidence about how much the plaintiff would have paid for a particular item or how much the plaintiff likely would have sold it for. The trial court therefore used the following methodology to calculate damages. Relying on the defendants’ bank statements, the trial court found that the gross proceeds from diverted transactions aggregated $152,449.63. Next, crediting Alpert’s testimony that his average markup on diverted sales was in the range of 45% to 50%, the court used the midpoint of 47.5% and thus concluded that the acquisition cost for the diverted pieces was $103,355.68. Finally, crediting the testimony of the plaintiff’s president that the company realized a minimum markup of 100% on estate jewelry sales, the trial court used this figure of $103,355.68 as the measure of damages, and entered judgment for the plaintiff in this amount. But the Connecticut Supreme Court reversed. The court noted that lost profits must be proven with “reasonable certainty,” and held that the plaintiff’s evidence was wholly insufficient to meet that standard. Specifically, the blanket assertion by the plaintiff’s president that the company realized at least a 100% markup “every time” was inadequate. “At a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits may be ascertained. … While the modern tendency is toward greater liberality in the requirements for 5 providing lost profits, it is the unvarying rule that the evidence of such certainty as the nature of the case permits should be produced.” 203 Conn. at 512. The court went on to hold that the plaintiff should have produced “objective, nonspeculative, documentary proof of its profit margins, such as, for example, accounting data of its historical earnings, or some other evidence documenting its profit margins on comparable consignment or estate jewelry pieces. The plaintiff’s failure to produce such evidence, which we must assume was readily available to the plaintiff, requires us to conclude that it has not met its burden of establishing its losses with reasonable certainty.” Id. Here, the plaintiff has identified, as its sole form of damage, lost profit resulting from supposedly “lost” business from AB Transportation. In the Plaintiff’s September 2022 Response, the plaintiff provided a raw number for “Lost Gross Profit on Parts and Service,” and a raw number for “Lost Gross Profit on Sales,” but not a hint as to how those numbers were arrived at. The documents showed nothing more than the plaintiff’s transaction history with AB Transportation and its owner, pre- and post- Mr. Mattson’s resignation from the company. It is crystal clear that, under the standard of the Alpert case, the plaintiff herein has failed to produce sufficient information and documentation about “lost profit” that would pass muster at trial. It is time – indeed, long overdue – to hold the plaintiff’s feet to the fire, and require the plaintiff to either provide full discovery of its damages claim, or finally 6 admit that it can’t. The defendant respectfully submits that his proposed Order of Compliance, if entered by the court, would serve that worthy purpose. DEFENDANT, BRENT MATTSON By 403444 William J. O’Sullivan O’Sullivan McCormack Jensen & Bliss PC 180 Glastonbury Boulevard, Suite 210 Glastonbury, CT 06033 Phone: (860) 258-1993 Fax: (860) 258-1991 wosullivan@omjblaw.com Juris # 407344 His Attorneys CERTIFICATION I hereby certify that on January 11, 2023, a copy of the above was or will immediately be mailed or delivered electronically or non-electronically to all counsel and self-represented parties of record and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served. Service list: John Wolfson, Esq. Feiner Wolfson LLC One Constitution Plaza Hartford, CT 06103 jwolfson@feinerwolfson.com 403444 William J. O’Sullivan 7