Connecticut Valley Landscaping et al v. Thomas Burbank (2010)

MEMORANDUM OF DECISION

The plaintiffs, Connecticut Valley Landscaping, Inc. (CVL) and Steve Bercume, apply for prejudgment remedies arising from an alleged breach of a noncompete clause in an agreement between the plaintiff and the defendant, Thomas Burbank.   On July 16 and 20, 2010, the court heard evidence pertaining to this application.

A prejudgment remedy hearing is limited to a determination of whether there is probable cause to believe that a judgment of at least the amount sought in the application will be rendered in the applicant's favor.  General Statutes § 52-278d.   The hearing “is not a full-scale trial on the merits.”  Chen v. Bernadel, 101 Conn.App. 658, 661-62 (2007).   Under § 52-278d(a), a prejudgment remedy shall be granted if, upon consideration of the facts before the court and taking into account any defenses, countervailing claims, set-offs, exemptions, and the adequacy of insurance, probable cause exists that judgment will be rendered in the applicant's favor.  Cahaly v. Benistar Property Exchange Trust Co., Inc., 268 Conn. 264, 271-72 (2004).   The court must gauge the applicant's future success or failure by weighing the probabilities surrounding both factual and legal issues.  Doe v. Rapoport, 80 Conn.App. 111, 116-17 (2003).

Probable cause is “a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.”   J.K. Scanlon v. Construction Group, Inc., 80 Conn.App. 345, 350 (2003).   The concept of probable cause embraces a “flexible common sense standard” which demands neither that a belief be “correct [n]or more likely true than false.”   Id.

The court finds that probable cause exists as to the following events.   The corporate plaintiff was formed in December 2004 as the result of the merger of landscaping businesses owned by Bercume and Burbank, respectively.   On April 29, 2009, the plaintiffs acquired the defendant's ownership interest in the corporation, and the terms of this acquisition are contained in a written, settlement agreement.

Paragraph 3 of that agreement prohibits the defendant from “directly or indirectly, engag[ing] in (as principal, partner, director, officer, agent, employee, consultant, owner, independent contractor or otherwise, with or without compensation) ․ in any business that engages in or plans to engage in lawn care, snow plowing, or landscaping services of any nature within the [town] of ․ Somers, Connecticut ․” This provision explicitly bans the defendant from “(1) solicit[ing] the business of any person or entity who is a customer of CVL;  (i.e.) caus[ing], induc[ing] or attempt[ing] to cause or induce any customer ․ of CVL to cease doing business with CVL, to deal with any competitor of CVL or in any way interfere with its relationship of CVL with its customers ․”

The agreement deems as inadequate legal remedies to redress a breach of the noncompete clause and expressly entitles the plaintiffs to obtain injunctive relief.   Further, the agreement allows damages in the form of reasonable attorneys fees and out-of-pocket expenses related to litigation brought to enforce this provision.

Gloria Knak was a customer of CVL, and her property is in the town of Somers.   She became dissatisfied with the services of CVL. She is also a friend of the defendant and his wife.   Knak expressed her dissatisfaction with CVL to the defendant.   The defendant suggested that his grandson, Jordan Tammaro, might serve as a good replacement for CVL. A few days later, on April 14, 2010, Knak informed Bercume that she was terminating her relationship with CVL.

The defendant contacted Bercume to arrange a meeting which was held on April 15, 2010.   Among other matters, the defendant inquired as to whether Knak had contacted Bercume.   Bercume told the defendant that she had called him the day before to inform him that she no longer desired CVL's services.   The defendant asked Bercume if he would mind if the defendant's grandson took over the Knak account.   Bercume strongly objected to any such arrangement.

The defendant then approached the owner of a competing landscaping business, Dennis Lloyd, and suggested to Lloyd that Lloyd might take on his grandson as a subcontractor to care for the Knak property.   In exchange for servicing the account, Lloyd would receive a percentage of the fees generated by Tammaro.   Lloyd agreed to this suggestion.

On April 16, 2010, Tammaro began work on the Knak property.   He arrived at the residence towing a trailer, owned by his grandfather, and upon which was carried a mower, also owned by the defendant.   Tammaro mowed the Knak lawn again on April 23, 2010.

Bercume became aware of these activities, and the present litigation ensued.   The plaintiffs seek injunctive and declaratory relief, compensatory damages, and attorney fees.   On May 11, 2010, the defendant stipulated to the issuance of a temporary injunction, and on May 10, 2010, the court, Bright, J., issued the injunction in accordance with the parties' stipulation.

As recounted above, ample evidence was adduced to create probable cause to believe that the defendant's behavior with respect to the Knak account violated multiple sections of the noncompete clause.   However, establishing probable cause as to the amount of damages flowing from these violations is another matter.

The court determines that the plaintiffs have failed to establish probable cause that Gloria Knak would have continued to use the services of CVL despite her dissatisfaction with that service.   The only evidence submitted on this issue was testimony by both the defendant and Knak to the contrary.   They testified that Knak had resolved to terminate CVL before the defendant broached the subject of using his grandson as a replacement.

The plaintiffs argue that the credibility of Knak and the defendant bearing on this point is suspect.   However, rejection of a witnesses testimony is no evidence that the opposite of that testimony is true.  State v. McCarthy, 105 Conn.App. 596, 608 (2008).   Evidence from which one might reasonably infer that Knak would have continued to utilize the landscaping services of CVL, but for the interference by the defendant, is lacking.   Therefore, the court concludes that no probable cause exists to attribute the loss of the Knak account to the defendant.

This conclusion does not end the inquire as to the amount of prejudgment remedy which ought to be assessed, however.   The agreement specifically allows for recoupment of reasonable attorneys fees and out-of-pocket expense paid by the plaintiffs to enforce the noncompete clause.   The plaintiffs were justified in seeking and obtaining an injunction to preclude future transgressions by the defendant.   After reviewing the evidence and file, the court determines that probable cause exists to believe that reasonable attorneys fee in the amount of $10,000 have been or will be expended in this endeavor.

The court grants the application for prejudgment remedy in the amount of $10,000.

Sferrazza, J.

Sferrazza, Samuel J., J.