Opinion
No. CV-03-0568019-S
March 10, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY
Plaintiff Chet Dunican filed an application for a prejudgment remedy to secure his claim against defendant for, among other things, breach of the employment agreement, negligent misrepresentation, promissory estoppel and failure to pay wages pursuant to Connecticut General Statutes § 31-72. A hearing was held after due notice on February 25, 2004, and subsequent days at which the parties had an opportunity to present evidence and argument. Both parties were well represented by counsel and presented evidence with respect to their claims and defenses. Briefs were filed on or before March 4, 2004.
Prejudgment Remedy Standard
Connecticut General Statutes § 52-278a et seq. provides litigants a right to seek prejudgment remedies to secure a potential judgment on their claims. In order to obtain a prejudgment remedy, the applicant need only establish the validity of his claim. Section 52-578d(a) provides that if probable cause is established that judgment will be rendered in the applicant's favor in the amount sought, the prejudgment remedy sought should be granted. The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full-scale trial on the merits of the plaintiff's claim but concerns only whether and to what extent the applicant is entitled to "have the property of the defendant held in the custody of the law pending adjudication of the merits of that action." Soltesz v. Miller, 56 Conn. App. 114, 116, 741 A.2d 445 (1999).
"The court's role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979). Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984); see also Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984). Soloman v. Aberman, 196 Conn. 359, 362-63, 493 A.2d 193 (1985)." Donegan v. Gardner, 2001 WL 1266223, *4 (Conn.Super.). With regard to the standard applicable to the evidence in the hearing, Donegan v. Gardner provides the following explanation to guide the decision in this case.
Probable cause is nothing more than a bona fide belief on the existence of facts essential under the law for the action, such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, to entertain it. New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 620, 569 A.2d 1098 (1990); Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Id. It is not necessary for the plaintiff to prove the case by a fair preponderance of the evidence at the probable cause stage. McCahill v. Town County Associates, Ltd., 185 Conn. 37, 39, 440 A.2d 801 (1981); Augeri v. C.F. Wooding Co., 173 Conn. 426, 428-29, 378 A.2d 538 (1977). A prejudgment remedy proceeding "is not contemplated to be a full scale trial on the merits," and "it does not lead to a final decision in any sense." (Internal quotations omitted.) Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984). In making its determination of probable cause, the court may consider both facts set forth in the plaintiff's affidavit and facts presented at the hearing. McCahill, supra, 185 Conn. 39; Fleet Bank of Connecticut v. Dowling, 28 Conn. App. 221, 225, 610 A.2d 707 (1992), appeal dismissed, 225 Conn. 447, 623 A.2d 1005 (1993). The probable cause standard applies not only to the factual issues, but to the legal issues as well. See Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156, 595 A.2d 872 (1991). Thus, the legal conclusions supporting the plaintiff's claim need have only a reasonable basis, even though a plenary review might ultimately yield a different result. Babiarz v. Hartford Special, Inc., supra, 2 Conn. App. 394. CT Page 2995
Thus, the court must weigh probabilities of outcome and the facts and the legal conclusions supporting Plaintiff's need have only a reasonable basis.
Probable cause also governs the issues of damages. On this issue of damages, Plaintiff's burden is not strict. "We have held that in an application for a prejudgment remedy, the amount of damages need not be determined with mathematical precision." Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 301, 497 A.2d 1027 (1985). A "`fair and reasonable estimate' of the likely potential damages is sufficient to support the entry of a prejudgment attachment. Id." Rafferty v. Noto Brothers Const., LLC, 68 Conn. App. 685, 693, 795 A.2d 1274, 1279 (2002). "In an application for a prejudgment remedy, `damages need not be established with precision but only on the basis of evidence yielding a fair and reasonable estimate. Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984).' Babiarz v. Hartford Special, Inc., 2 Conn. App. at 398. Facts must be presented which are `sufficient to enable the court to determine the probable amount of the damages involved. 7 C.J.S., Attachment, § 125(b)(2). As a matter of general experience, a determination of a claim's probable validity normally will entail at least some consideration of the amount of damages which may be found upon a full trial.' Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 585, 376 A.2d 60 (1977)." Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 301, 497 A.2d 1027, 1030 (1985).
Applying the probable cause standard, and considering the court's view of the credibility of the witnesses, after weighing probabilities, the court concludes that the plaintiff has not met the burden required with respect to any of his claims and hereby denies the application.
Leuba, J.T.R.