Crown Linen Service, Inc. v. Robert Mirafiore et al. (2010)

MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY

A hearing was held on the plaintiff's application for a prejudgment remedy on October 25, 2010 against the individual defendant, Robert Mirafiore.   Based on the evidence and argument presented, the court issues this decision regarding the prejudgment remedy requested by the plaintiff.   This is an action by the plaintiff, Crown Linen Service, Inc., for liquidated damages under a contract to provide linen services and supplies to the defendant.   The plaintiff claims that it is due $17,092.50 plus costs and attorneys fees.   The defendant argues that he did not enter into a valid contract with the defendant and that there was a release of the plaintiff's claims under the contract.

The evidence established that on July 22, 2005 the defendant signed a contract with Churchill for the provision of linen supplies to Roberto's Restaurant.   The term of the contract was for sixty months.   The contract provides for liquidated damages of 75% of the average weekly rental charge multiplied by the number of weeks remaining under the contract plus costs including attorneys fees.   The contract was later assigned to the plaintiff.

Although the contract indicates that Roberto's Restaurant is a corporation and Mirafiore signed it as president, there is no corporation known as Roberto's Restaurant.   The liquor license for the restaurant indicates that it is Mirafiore's “DBA.” Since 1988 there has been on file with the Bridgeport town clerk a trade name certificate indicating that Mirafiore conducts business under the name of “Roberto's Pizza Restaurant.”

At some point a dispute arose under the contract and suit was brought by the plaintiff against the defendant regarding the contract.   On April 8, 2009 the parties executed a mutual general release of the claims in that litigation which was “subject to the payment of six hundred seventy-nine and 28/100 dollars ($679.28) in four (4) equal monthly installments of one hundred sixty-nine and 82/100 dollars ($169.82) by Orestes to Crown (through its attorney) ․ Said release is further subject to successful completion by Orestes of a written reinstatement contract for a period of five (5) years between Crown and Orestes which contract shall be executed within thirty (30) days of the execution of this agreement.”   Exhibit B. Although the $679.28 was paid, Orestes did not successfully complete the reinstatement contract.   Judgment has been entered for the plaintiff on the claims against Orestes in this case based on its breach of that contract.

The primary purpose of a hearing on an application for a prejudgment remedy, pursuant to General Statutes § 52-278d(a), is to determine “whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff.”  “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 [person] 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 ․ [P]rejudgment remedy proceedings are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication.   They are only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action ․ The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiff's judgment, should he obtain one ․ It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover.”  (Internal citations and quotation marks omitted.)  Morris v. Cee Dee, LLC, 90 Conn.App. 403, 411-12, cert. granted, 275 Conn. 929 (2005) (appeal withdrawn March 13, 2006).

Although the defendant has raised issues regarding the validity of the first contract so as to bind the defendant, Mirafiore, there is probable cause to believe that he signed it in his capacity as doing business as Roberto's Restaurant and therefore he would be personally liable under the contract.   The more difficult issue is whether or not his obligations under that contract were released pursuant to the mutual general release.   The plaintiff argues that since the “subject to” conditions of the release were not fulfilled, the defendant remains liable on the first contract.   The issue of whether the release was a satisfaction of the claim against the defendant on the first contract, as the defendant claims, or a new contract, must be explored further on a hearing on the merits in which the intent of the parties can be discerned.  “Satisfaction of a claim may be found in either the promise to settle or the full performance of that promise.   Connecticut law comports with the view that the intention of the parties is determinative of whether a settlement agreement constitutes an executory accord or a substitute agreement ․ It is frequently difficult to determine as a matter of fact whether the parties agreed that the settlement agreement itself constituted satisfaction of the original cause of action, or whether the performance of the agreement was intended to be the satisfaction.   15 Williston, Contracts (3d Ed. Jaeger) 1847.   Whether the new agreement was per se accord and satisfaction of the original debt depends upon the intention of the parties ․ It is strongly presumed, however, that a plaintiff, who is claiming a substantially undisputed amount to be due, would not accept a mere promise to pay a much smaller sum in discharge of a claim for a larger amount ․ [I]t is not a probable inference that a creditor intends merely an exchange of his present cause of action for another.   It is generally more reasonable to suppose that he bound himself to surrender his old rights only when the new contract of accord was performed ․ The intent of the parties to a contract is generally considered to be a question of fact ․ In the event that the parties intended that performance of the new agreement was to be the satisfaction of the claim, there can be no doubt that the creditor may, on default in performance of the accord by the debtor, sue either on the original cause of action, or, it would seem, if he prefers to do so, on the contract of accord.”  (Internal quotation marks and citations omitted.)  Air-Care N.O. Nelson Company v. Patchet, 5 Conn.App. 203, 205-6 (1985).   Since the court does not have before it sufficient evidence to determine that the plaintiff is limited to suit on the release, the court finds that there is probable cause for this action on the first contract.

Therefore, considering all of the above, the court orders that a prejudgment remedy may issue in the amount of $17,092.50 against the defendant, Robert Mirafiore.

Jane S. Scholl, J.

Scholl, Jane S., J.