Thomas W. Culley v. Osvaldo J. DaSilva et al. (2010)

MEMORANDUM OF DECISION ON APPLICATION FOR PREJUDGMENT REMEDY

The plaintiff filed the present application seeking a prejudgment remedy to secure payment of damages for interpreting services provided by the plaintiff to the defendants.   The plaintiff was born in Brazil and speaks Portuguese fluently and has worked as an interpreter in that language for many years.   The defendant Osvaldo J. DaSilva was involved in a work-related accident and he is not proficient in the English language.   It is agreed that the plaintiff provided interpreting services to the defendant and to his wife including communicating with various medical providers and insurance carriers, and in explaining various aspects of the workers' compensation dispute to the defendant.   The defendant's attorney did have personnel in his office that spoke Portuguese but the personnel eventually left and returned to South America.   Accordingly, the plaintiff also provided communication services with the defendant's former attorney.   The parties, however, are in a dispute as to the nature and quantity of the services provided and the contractual agreement under which those services should be compensated.

The plaintiff testified that the contract with the defendants was that he would be compensated at the rate of $85.00 per hour which was the normal rate for himself as well as a competitive rate for other interpreters.   The plaintiff also testified that the contract also included an agreement that the plaintiff's compensation would not exceed 10% of the amount of the net proceeds received by the defendant Osvaldo DaSilva for the workers' compensation case.   The workers' compensation matter has not been concluded so the amount of the plaintiff's compensation cannot be determined at the present time due to the cap upon the total compensation he would receive.   The plaintiff reviewed numerous records consisting of daily log entries and voluminous emails, letters and notes and he testified he has expended 762.25 hours providing services to the defendant and at the rate of $85.00 an hour which amounts to compensation due to him of $64,791.25.   The plaintiff also testified that for a period of time (four months) the defendants paid him the amount of $400.00 per month and that he received a total of $1,600.00 from them.   He also testified he was aware the defendants could not afford such sums and that he eventually told them not to pay $400.00 a month and that the compensation would be determined when the workers' compensation case was concluded.   Accordingly the plaintiff has presented evidence that he has a potential claim in the amount of $63,151.25.   There was also testimony that the workers' compensation claim was believed to be worth substantial sums of money.   The defendants have terminated the plaintiff's services and assert that nothing is owed to him.   The plaintiff also testified that he has concern that if the defendant receives a workers' compensation award he will return to Brazil and the plaintiff would therefore not be able to collect the amounts owed to him.

The defendant has a different version of the contractual arrangements.   The defendants presented evidence that the agreement between the parties was that the defendants would pay the plaintiff the sum of $400.00 per month for services provided by the plaintiff.   The defendant's wife testified that for a period of 29 months she paid the plaintiff, each month, the sum of $400.00 in cash but has no receipts for those payments.   Thus the defendants assert that they owe the plaintiff nothing.   The defendants also assert that the plaintiff's calculation of time expended is inaccurate.

The standards for an award of a prejudgment remedy are well known.  “A prejudgment remedy means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment ․ A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ․ Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence ․ The legal idea of 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 man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false ․ Under this standard, the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits ․ Crotty v. Tucccio Development, Inc., 119 Conn.App. 775, 778-79 (2010) (Citations omitted.)  (Emphasis added.)  (Connecticut Law Journal, March 16, 2010, p. 7A, 10A-11A.)

It is not the function of the Court, in a prejudgment remedy hearing, to determine whether it will credit the testimony of the plaintiff or whether it will credit the testimony on behalf of the defendant.   The Court is not entering a judgment on the merits for either the plaintiff or the defendant.

Under the above quoted standards, the Court finds that the plaintiff has established probable cause for a prejudgment remedy in the amount of $63,191.55, subject to a limitation of 10% of the next proceeds of the workers' compensation award, if any.

The parties are in dispute as to the form of the prejudgment order as well as to what property may be subjected to a prejudgment remedy.   Accordingly, a non evidentiary hearing will be held before the undersigned on Monday, September 27, 2010 in Courtroom 6-D at 10:00 a.m.

RUSH, J.T.R.

Rush, William B., J.T.R.