LLC v. Derek Hikel et al. (2011)

MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY

On April 11, 2011, a hearing was held on the plaintiff's, National Services, LLC, application for a prejudgment remedy against the defendants, Derek Hikel and Ayele A. Hikel.   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, National Services, LLC, for payment for work done on certain properties allegedly at the request of the defendants.   In its proposed complaint the plaintiff claims that it is due approximately $64,000.   It seeks a prejudgment remedy in the amount of $100,000.

The evidence established that some time in 2008 the defendant, Ayele Hikel, met with Marco Puerto, regarding doing certain work on the porch at 50 East Street in Hartford.   Although Puerto claims that it is his usual practice to get a signed contract to perform work, that was not done here.   Hikel had some concerns regarding the need for the scope of the work Puerto suggested, but before she could agree that he do the work, Puerto tore the porch off.   The city then required that it be replaced.   Although Hikel gave Puerto some money to do so, he never completed the porch work.   Hikel subsequently lost the house to foreclosure.

The evidence indicated that Puerto did a variety of work at 50 East Street and 62–64 Chadwick Avenue, Hartford, two properties owned by the defendants.   Ayele Hikel claimed that certain work that he did was not at her request or what she wanted done.   The plaintiff LLC, of which Puerto is the owner, claims that it is owed $43,566.00 for work done on 50 East Street and $19,868.11 for work done on 62–64 Chadwick Avenue.   Although the plaintiff submitted as evidence two invoices to Derek Hikel, one dated January 23, 2009 and the other dated August 4, 2010, Ayele Hikel claims she was never given any invoices.   Even though the August 4th statement references numerous individual invoices, those were not provided to the court.

The evidence indicated that Puerto, without the defendants' permission, rented certain parts of the properties and kept the rent.   He also received certain payments from the defendants.   None of those payments were to the plaintiff, National Services, LLC. Although Puerto claimed the invoices submitted in evidence and the balances that he alleges are due the plaintiff, account for the payments from the defendants, his testimony was not credible in this regard because the statements do not show any payment history.   It also was unclear to the court how any rent payments he received were credited, if at all, to the amounts he claims are due from the defendants.   In undertaking the probable cause analysis that our prejudgment remedy statute requires, the court must consider not only the validity of the plaintiff's claim but also the amount that is being sought.  Union Trust Company v. Heggelund, 219 Conn. 620, 625 (1991).

Lastly, and most importantly, Ayele Hikel did not contract with the plaintiff, National Services, LLC, her dealings were solely with Puerto.   She indicated that she did not know what that company was.   Although Puerto claims that he is the owner of the plaintiff, the evidence did not establish that the defendants hired the plaintiff company or knew that when they dealt with Puerto he was acting, not in an individual, but a corporate capacity.   In fact, there was no evidence that Derek Hikel had any dealings with the plaintiff or Puerto.

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).

‘With respect to the granting or denying of applications for prejudgment remedies, the court must determine, in light of its assessment of the legal issues and credibility of witnesses, whether a plaintiff has sustained his burden of showing probable cause.”  Shore v. Haverson Architecture & Design, P.C., 92 Conn.App. 469, 480 (2005), cert. denied, 277 Conn. 907 (2006).   For the reasons stated above, the court finds that the plaintiff here, National Services, LLC, did not sustain its burden of showing probable cause as to its claims against the defendants, Derek Hikel and Ayele A. Hikel.

Therefore the court denies the application for a prejudgment remedy.

Jane S. Scholl

Scholl, Jane S., J.