Opinion
No. CV 09 6002931 S
March 16, 2010
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
I. BACKGROUND
The plaintiff Anmahian Winton Architects (AWA) has sued the defendants J. Elliot Smith Holdings LLC (Smith Holdings) and John Tedrowe Bonner (Bonner) for recovery of fees allegedly earned and expenses incurred by AWA in connection with the rendering of architectural services to the defendants. The action was initially returnable in the Judicial District of Waterbury and subsequently transferred to this District. AWA's application for a prejudgment remedy was heard by the court on February 22, 2010. The parties submitted briefs setting forth their claims, defenses and arguments on March 8, 2010, and AWA submitted a "reply" brief dated March 12, 2010.
II. DISCUSSION
Alex Anmahian, a principal of AWA, testified credibly on behalf of AWA. He stated AWA was asked to participate in developing a "green" project behind a bank located at 94 Elm Street in New Canaan, Connecticut, and AWA worked on the project in 2008 and 2009 by submitting drawings to, and participating in many meetings with, the defendant Bonner. AWA submitted a number of invoices to Bonner, the first of which in the amount of $49,570.40 (P. Ex 1, D. Ex. A) was paid. Subsequent invoices totaling $140,731.59 (P. Exs. 2-4, D. Exs. B-D) have been delivered to Bonner but have not been paid although Anmahian testified that Bonner, at one point, told him payment of the second invoice for $79,737.03 (P. Ex. 2, D. Ex. B) had been sent. AWA seeks a prejudgment remedy in the amount of $150,000.
In his affidavit in support of the application Anmahian stated that Bonner was a principal and controlling party of Elliot Holdings and that Elliot Holdings was the record title holder to 94 Elm Street in New Canaan and had its principal place of business at 25 Greis Avenue in Nesconset, New York, the business address of Bonner. Affidavit of Anmahian, October 1, 2009 ¶¶ 7-11.
The defendants filed no affidavits and called no witnesses at the hearing. On cross examination Anmahian conceded he was not licensed as an architect in Connecticut until March 2009.
Pursuant to General Statutes § 52-278d, if a court, after taking into account any defenses, counterclaims or set-offs, finds that there is probable cause that judgment will be rendered in favor of the plaintiff may grant a prejudgment remedy. "Probable cause" has been defined as "a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it." Falls Church Group v. Tyler, Cooper and Alcorn, 281 Conn. 84, 102 (2007).
The defendants contend that General Statutes § 20-290 prevents AWA from prevailing in this action because it prohibits any person from practicing architecture without a state license issued by Connecticut. In Design Development, Inc. v. Brignole, 20 Conn.App. 685 (1990) the Appellate Court held that the principal of the plaintiff who held himself out and practiced as an architect could not collect on a bill for architectural services because he was not registered as an architect in Connecticut. The plaintiff seeks to distinguish this case by noting that Anmahian is duly licensed as an architect in several states including neighboring Massachusetts where there is some evidence that the individual plaintiff in Design Development was not licensed as an architect anywhere. The evidence presented on that point is not conclusive; in any event the decision in Design Development was focused on the violation of General Statutes § 20-290 (lack of a Connecticut license) not on the fact that there was no license at all.
The plaintiff also contends that there is "substantial compliance" with Section 20-290 because Anmahian could have been, and eventually was, licensed by Connecticut in a rather quick and pro forma manner without an examination because he met the requirements of Section 20-291 since he was licensed in another state which had requirements substantially similar to Connecticut and had practiced there for over ten years. This is an intriguing argument but it has little present support in Connecticut law. In Rowley Engineering Associates, P.C. v. Cuomo, Superior Court, judicial district of New London, D.N. 50 74 76 (January 2, 1991, Teller, J.) [ 3 Conn. L. Rptr. 79], the court dealt with General Statutes § 20-306a. In that case the defendant alleged that the plaintiff professional corporation had not complied with Section 20-306a in that it had not been issued a certificate of registration. However the persons carrying out the work of the professional corporation all had the appropriate licenses. The Rowley court distinguished Design Development on that ground. However, this court cannot distinguish Design Development on that ground because there is no evidence that anyone at AWA was licensed as an architect in Connecticut.
The Rowley court also found that the provisions of Section 20-306a were established for administrative purposes to allow professional engineers to practice in a corporate form and not for the purposes of safeguarding "life health and property" as explicitly set forth in Section 20-290 at issue in this case. Furthermore, because all the professionals providing services in Connecticut in Rowley were licensed to practice in this state the Superior Court leaned on the "substantial compliance" doctrine developed in other states, notably California. Specifically Rowley found:
Here, the individuals supervising and responsible for the corporation's professional engineering and land surveying work were at all times appropriately licensed. Also, the corporation was at all times qualified to obtain a certificate of registration, and in fact, ultimately did so. Moreover, there was no evidence of fraud, deception or incompetence in the performance of the professional services or that the plaintiff corporation or its officers intentionally or wilfully violated General Statutes Sections 20-306a or 20-306b, thereby subjecting them to the criminal sanctions of Section 20-310.
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The Court, under the circumstances of this case, finds that the purpose and policy of General Statutes Sections 20-306a and 306b have been met by the plaintiff and finds no such clear and certain "impropriety injurious to the interests of society," which warrants finding the agreement illegal, void as against public policy and unenforceable and adopts the doctrine of substantial compliance. To allow the defendant to escape liability to the plaintiff because of hyper technical application of the statute would be unjust.
This court cannot reach a similar result in this case for the same reason it cannot distinguish Design Development. There is no evidence that the architectural work for a Connecticut project was performed by an architect licensed in this state.
In many respects this is an unfortunate outcome because there is no evidence that AWA's work was anything less than high quality, and there is evidence indicating that the non-payment by the defendants had little to do with their present contentions that there was no agreement between the parties. Nevertheless, based on the licensing statute the plaintiffs have not, at this time, established probable cause.