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DOCKET NO.: WWM-CV-21-6022016-S : SUPERIOR COURT
:
IRONHORSE AUTO, LLC d/b/a :
CENTRAL HYUNDAI : J. D. OF WINDHAM
:
vs. : AT PUTNAM
:
BRENT MATTSON : NOVEMBER 9, 2021
SUR-REPLY BRIEF REGARDING DEFENDANT’S MOTION TO STRIKE
The Plaintiff, Ironhorse Auto, LLC d/b/a Central Hyundai, hereby files this sur-reply brief
in further objection to the motion to strike Counts Two, Three, Four, and Five of the Plaintiff’s
Revised Complaint filed by the Defendant, Brent Mattson, on September 28, 2021. The Plaintiff
files this sur-reply to respond to the arguments made in the Defendant’s reply brief.
I. CONVERSION AND STATUTORY THEFT
Counts Two and Three of the Plaintiff's Revised Complaint state claims of conversion and
statutory theft against Mattson. The Defendant's motion to strike argues that these counts should
be stricken because the Plaintiff’s lists of confidential and proprietary business information,
including but not limited to customer lists, are not a proper subject of a claim of conversion and
statutory theft.
In its objection to the Defendant’s motion to strike, the Plaintiff states: “Our appellate
courts do not appear to have addressed the question of whether the torts of conversion and statutory
theft include intangible property rights. See Hi-Ho Tower, Inc., 255 Conn. at 44.” Objection at 5.
In its reply brief, the Plaintiff claims that this “is a puzzling assertion, given that our
Supreme Court said, at that very page 44 of Hi-Ho Tower, ‘In Connecticut, property interests have
not traditionally been subject to the tort of conversion, except for those intangible property interests
evidenced in a document.” Reply Brief at 1.
Contrary to the Plaintiff’s suggestion, the Defendant’s argument is not so puzzling if one
simply reads the next three sentences in Hi-Ho Tower, which state as follows:
Comment (f) to § 242 of the Restatement (Second) of Torts, however, provides that
‘in a proper case liability for intentional interference with some kind of intangible
rights may be found.’ Accordingly, the plaintiff urges this court to extend the
torts of conversion and statutory theft to include intangible property rights.
We need not, however, resolve this question in the context of this case, because
the jury’s specific responses to the interrogatories submitted to it regarding the
plaintiff’s claim for breach of agreement conclusively demonstrate that,
irrespective of the question of whether intangible property may be the subject of
the torts in question, the plaintiff did not persuade the jury that the defendants’
conduct was without the authorization of the plaintiff.
Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44 (2000) (emphasis added).
Moreover, in a recent case, this Court has reiterated that “our appellate courts have not
determined whether a plaintiff may seek treble damages under § 52-564 on the basis of an
alleged theft of intangible rights. The question of whether the torts of conversion and
statutory theft include intangible property rights was expressly left unresolved by our
Supreme Court in Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44 (2000).” Levco
Tech, Inc. v. Levine, X08-CV-166028629-S, 2019 WL 1765931, at *5 (Conn. Super. Mar. 13,
2019) (emphasis added). In other words, the Plaintiff is correct to argue that our appellate courts
have not addressed the question of whether the torts of conversion and statutory theft include
intangible property rights, and the Defendant’s claim to the contrary is incorrect. See id.
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III. FIDUCIARY DUTY AND THE EMPLOYEE DUTY OF LOYALTY
Counts Four and Five of the Revised Complaint state claims for breach of fiduciary duty
and the employee duty of loyalty. The Defendant’s motion to strike contends that these counts
should be stricken for failure to state a claim as a matter of law because they are based on conduct
that was allegedly committed by the Defendant after his term of employment with the Plaintiff had
ended.
The Plaintiff’s objection to the motion to strike argues that, under Connecticut law, even
after an employment relationship has terminated, there is a continuing duty for former employees
not to use confidential information for the benefit of a new employer. Objection at 8.
In his reply brief, the Defendant contends that the Plaintiff cites to cases in which the
defendant ex-employee misuses trade secrets that the employee acquired while still an employee,
whereas in this case, “the Plaintiff’s claim is based entirely on business data that Mattson allegedly
obtained after he changed jobs.” Reply Brief at 5.
However, the Defendant’s argument mischaracterizes the Plaintiff’s claims for breach of
fiduciary duty and breach of the duty of loyalty. Indeed, the Plaintiff’s Complaint alleges that the
Defendant obtained confidential and proprietary information regarding the Plaintiff’s DMS during
his term of employment, and used that information to gain access to the DMS after he left his job.
As the Plaintiff expressly argued in its objection:
Here, the Revised Complaint alleges that on March 12, 2021—just three days after
he left his job with the Plaintiff—the Defendant contacted Hyundai Motor America,
misrepresented himself as a current employee of the Plaintiff, and requested
administrator rights and access to the Plaintiff’s DMS. Revised Complaint ¶ 18.
In other words, Mattson used his knowledge of the Plaintiff’s confidential and
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proprietary DMS, which he acquired in the course of his employment with the
Plaintiff, for his own benefit and the benefit of his new employer. Id. Thus,
Mattson breached his continuing duty to the Plaintiff post-termination by
using confidential information, acquired in the course of his employment, for
his own benefit and that of Wile Hyundai.
Objection at 9 (emphasis added). In other words, the Defendant’s argument that the Plaintiff’s
claim is based entirely on business data that he allegedly obtained after he changed jobs is, once
again, incorrect.
Finally, the Plaintiff contends that Mattson should be barred from claiming that he was not
the Plaintiff’s employee on March 12, 2021 under the doctrine of equitable estoppel. In response,
the Defendant argues:
The plaintiff alleged in paragraph 15 of the Revised Complaint, and thus has
judicially admitted, that Mattson’s employment terminated on March 9, 2021.
Thus, the plaintiff’s suggestion, at pages 9-10 of the Objection that Mattson should
be estopped from denying that he was no longer the plaintiff’s employee on March
12th is a head-scratcher.
Reply Brief at 4 n.1.
Once again, however, the Defendant mischaracterizes the Plaintiff’s argument. It is
undisputed that Mattson resigned his job with the Plaintiff on March 9, 2021. However, under the
unusual facts of this case, the doctrine of equitable estoppel should nevertheless bar Mattson from
using the date of his resignation as a defense to the Plaintiff’s claims that he breached a fiduciary
duty and duty of loyalty. See Fischer v. Zollino, 303 Conn. 661, 668 (2012) (“No one is ever
estopped from asserting what would otherwise be his right, unless to allow its assertion would
enable him to do a wrong.”) “Where one, by his words and actions, intentionally causes another
to believe in the existence of a certain state of things, and thereby induces him to act on that belief,
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so as injuriously to affect his previous position, he is precluded from averring a different state of
things as existing at the time.” Harley v. Indian Spring Co., 123 Conn. App. 800, 826 (2010).
In this case, the Plaintiff alleges that Mattson misrepresented himself as a current employee
of the Plaintiff after the date of his resignation. Revised Complaint ¶ 18. As a result of his
successful scheme to deceive the Plaintiff, the Defendant was able to obtain access to the Plaintiff’s
confidential and proprietary business information, and use such information to the Plaintiff’s
detriment. It would thus be unjust and inequitable to allow Mattson to avoid liability based solely
upon a defense that he was not employed by the Plaintiff when he stole its intellectual property.
See Fischer, 303 Conn. at 668.
5
CONCLUSION
WHEREFORE, for all of the foregoing reasons, this Court should deny the Defendant's
motion to strike.
THE PLAINTIFF,
IRONHORSE AUTO, LLC d/b/a
CENTRAL HYUNDAI
By /s/ 103001
John M. Wolfson
Benjamin M. Wattenmaker
FEINER WOLFSON LLC
One Constitution Plaza
Suite 900
Hartford, CT 06103
Juris No. 415049
Tel: (860) 713-8900
Fax: (860) 713-8905
jwolfson@feinerwolfson.com
bwattenmaker@feinerwolfson.com
6
CERTIFICATION
I certify that a copy of the above was or will immediately be mailed or delivered
electronically or non-electronically on November 9, 2021 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.:
William J. O’Sullivan, Esq.
O’Sullivan McCormack Jensen & Bliss PC
180 Glastonbury Boulevard, Suite 210
Glastonbury, CT 06033
Phone: (860) 258-1993
Fax: (860) 258-1991
Email: wosullivan@omjblaw.com
/s/ 103001 __________
John M. Wolfson
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DOCKET NO.: WWM-CV-21-6022016-S : SUPERIOR COURT : IRONHORSE AUTO, LLC d/b/a : CENTRAL HYUNDAI : J. D. OF WINDHAM : vs. : AT PUTNAM : BRENT MATTSON : NOVEMBER 9, 2021 SUR-REPLY BRIEF REGARDING DEFENDANT’S MOTION TO STRIKE The Plaintiff, Ironhorse Auto, LLC d/b/a Central Hyundai, hereby files this sur-reply brief in further objection to the motion to strike Counts Two, Three, Four, and Five of the Plaintiff’s Revised Complaint filed by the Defendant, Brent Mattson, on September 28, 2021. The Plaintiff files this sur-reply to respond to the arguments made in the Defendant’s reply brief. I. CONVERSION AND STATUTORY THEFT Counts Two and Three of the Plaintiff's Revised Complaint state claims of conversion and statutory theft against Mattson. The Defendant's motion to strike argues that these counts should be stricken because the Plaintiff’s lists of confidential and proprietary business information, including but not limited to customer lists, are not a proper subject of a claim of conversion and statutory theft. In its objection to the Defendant’s motion to strike, the Plaintiff states: “Our appellate courts do not appear to have addressed the question of whether the torts of conversion and statutory theft include intangible property rights. See Hi-Ho Tower, Inc., 255 Conn. at 44.” Objection at 5. In its reply brief, the Plaintiff claims that this “is a puzzling assertion, given that our Supreme Court said, at that very page 44 of Hi-Ho Tower, ‘In Connecticut, property interests have not traditionally been subject to the tort of conversion, except for those intangible property interests evidenced in a document.” Reply Brief at 1. Contrary to the Plaintiff’s suggestion, the Defendant’s argument is not so puzzling if one simply reads the next three sentences in Hi-Ho Tower, which state as follows: Comment (f) to § 242 of the Restatement (Second) of Torts, however, provides that ‘in a proper case liability for intentional interference with some kind of intangible rights may be found.’ Accordingly, the plaintiff urges this court to extend the torts of conversion and statutory theft to include intangible property rights. We need not, however, resolve this question in the context of this case, because the jury’s specific responses to the interrogatories submitted to it regarding the plaintiff’s claim for breach of agreement conclusively demonstrate that, irrespective of the question of whether intangible property may be the subject of the torts in question, the plaintiff did not persuade the jury that the defendants’ conduct was without the authorization of the plaintiff. Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44 (2000) (emphasis added). Moreover, in a recent case, this Court has reiterated that “our appellate courts have not determined whether a plaintiff may seek treble damages under § 52-564 on the basis of an alleged theft of intangible rights. The question of whether the torts of conversion and statutory theft include intangible property rights was expressly left unresolved by our Supreme Court in Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44 (2000).” Levco Tech, Inc. v. Levine, X08-CV-166028629-S, 2019 WL 1765931, at *5 (Conn. Super. Mar. 13, 2019) (emphasis added). In other words, the Plaintiff is correct to argue that our appellate courts have not addressed the question of whether the torts of conversion and statutory theft include intangible property rights, and the Defendant’s claim to the contrary is incorrect. See id. 2 III. FIDUCIARY DUTY AND THE EMPLOYEE DUTY OF LOYALTY Counts Four and Five of the Revised Complaint state claims for breach of fiduciary duty and the employee duty of loyalty. The Defendant’s motion to strike contends that these counts should be stricken for failure to state a claim as a matter of law because they are based on conduct that was allegedly committed by the Defendant after his term of employment with the Plaintiff had ended. The Plaintiff’s objection to the motion to strike argues that, under Connecticut law, even after an employment relationship has terminated, there is a continuing duty for former employees not to use confidential information for the benefit of a new employer. Objection at 8. In his reply brief, the Defendant contends that the Plaintiff cites to cases in which the defendant ex-employee misuses trade secrets that the employee acquired while still an employee, whereas in this case, “the Plaintiff’s claim is based entirely on business data that Mattson allegedly obtained after he changed jobs.” Reply Brief at 5. However, the Defendant’s argument mischaracterizes the Plaintiff’s claims for breach of fiduciary duty and breach of the duty of loyalty. Indeed, the Plaintiff’s Complaint alleges that the Defendant obtained confidential and proprietary information regarding the Plaintiff’s DMS during his term of employment, and used that information to gain access to the DMS after he left his job. As the Plaintiff expressly argued in its objection: Here, the Revised Complaint alleges that on March 12, 2021—just three days after he left his job with the Plaintiff—the Defendant contacted Hyundai Motor America, misrepresented himself as a current employee of the Plaintiff, and requested administrator rights and access to the Plaintiff’s DMS. Revised Complaint ¶ 18. In other words, Mattson used his knowledge of the Plaintiff’s confidential and 3 proprietary DMS, which he acquired in the course of his employment with the Plaintiff, for his own benefit and the benefit of his new employer. Id. Thus, Mattson breached his continuing duty to the Plaintiff post-termination by using confidential information, acquired in the course of his employment, for his own benefit and that of Wile Hyundai. Objection at 9 (emphasis added). In other words, the Defendant’s argument that the Plaintiff’s claim is based entirely on business data that he allegedly obtained after he changed jobs is, once again, incorrect. Finally, the Plaintiff contends that Mattson should be barred from claiming that he was not the Plaintiff’s employee on March 12, 2021 under the doctrine of equitable estoppel. In response, the Defendant argues: The plaintiff alleged in paragraph 15 of the Revised Complaint, and thus has judicially admitted, that Mattson’s employment terminated on March 9, 2021. Thus, the plaintiff’s suggestion, at pages 9-10 of the Objection that Mattson should be estopped from denying that he was no longer the plaintiff’s employee on March 12th is a head-scratcher. Reply Brief at 4 n.1. Once again, however, the Defendant mischaracterizes the Plaintiff’s argument. It is undisputed that Mattson resigned his job with the Plaintiff on March 9, 2021. However, under the unusual facts of this case, the doctrine of equitable estoppel should nevertheless bar Mattson from using the date of his resignation as a defense to the Plaintiff’s claims that he breached a fiduciary duty and duty of loyalty. See Fischer v. Zollino, 303 Conn. 661, 668 (2012) (“No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong.”) “Where one, by his words and actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, 4 so as injuriously to affect his previous position, he is precluded from averring a different state of things as existing at the time.” Harley v. Indian Spring Co., 123 Conn. App. 800, 826 (2010). In this case, the Plaintiff alleges that Mattson misrepresented himself as a current employee of the Plaintiff after the date of his resignation. Revised Complaint ¶ 18. As a result of his successful scheme to deceive the Plaintiff, the Defendant was able to obtain access to the Plaintiff’s confidential and proprietary business information, and use such information to the Plaintiff’s detriment. It would thus be unjust and inequitable to allow Mattson to avoid liability based solely upon a defense that he was not employed by the Plaintiff when he stole its intellectual property. See Fischer, 303 Conn. at 668. 5 CONCLUSION WHEREFORE, for all of the foregoing reasons, this Court should deny the Defendant's motion to strike. THE PLAINTIFF, IRONHORSE AUTO, LLC d/b/a CENTRAL HYUNDAI By /s/ 103001 John M. Wolfson Benjamin M. Wattenmaker FEINER WOLFSON LLC One Constitution Plaza Suite 900 Hartford, CT 06103 Juris No. 415049 Tel: (860) 713-8900 Fax: (860) 713-8905 jwolfson@feinerwolfson.com bwattenmaker@feinerwolfson.com 6 CERTIFICATION I certify that a copy of the above was or will immediately be mailed or delivered electronically or non-electronically on November 9, 2021 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.: William J. O’Sullivan, Esq. O’Sullivan McCormack Jensen & Bliss PC 180 Glastonbury Boulevard, Suite 210 Glastonbury, CT 06033 Phone: (860) 258-1993 Fax: (860) 258-1991 Email: wosullivan@omjblaw.com /s/ 103001 __________ John M. Wolfson