William J. Rogers et al. v. Pisano Brothers Automotive, Inc. (2011)

MEMORANDUM OF DECISION ON PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY DATED JANUARY 6, 2011

Both parties presented evidence at an April 7, 2011 hearing on plaintiff's January 6, 2011 Application for a Pre–Judgment Remedy (PJR).  The court has applied the well known standards for a PJR. New England Land Company,, Ltd v. DeMarkey, 213 Conn. 612, 619–20 (1990);  Ledge brook Condominium Association, Inc. v. Lusk, 172 Conn. 577, 584 (1977).

After considering claims of law and facts, the court finds that the plaintiff's have sustained their burden of proof as follows:

(1) October 2009 unpaid claimed $3,400.00 allowed $3,400.00

rent

(2) November 2009 unpaid claimed $3,400.00 allowed $3,400.00

rent

(3) Rear garage door claimed $ 675.00 allowed $ 675.00

replacement

(4) Miscellaneous Claude's claimed $ 250.00 allowed $ 0

Garage Door repair

(5) Labor for installing claimed $ 450.00 allowed $ 450.00

rear garage door

(6) Painting interior claimed $5,500 allowed $ 0

walls, floors & ceilings

(7) Toilet and heating claimed $ 380.00 allowed $ 380.00

repairs

(8) Marshal's fee claimed $ 170.40 allowed $ 170.40

(9) Superior Court claimed $ 350.00 allowed $ 350.00

entry fee

(10) Late fees for 10/10 claimed $ 300.00 allowed $ 0

and 11/10

Total allowed claims $8,825.40

(11) Security Deposit credit claimed $3,300.00 allowed $3,300.00

to defendant

Total net allowed claims $5,525.40

(rounded off to $5,525)

The court has disallowed claims (4) and (6) since it appears that these claims are due to ordinary wear and tear.   Although the lease in paragraphs 9 and 14 does require tenant to maintain the premises in good condition and keep the premises in a neat and orderly condition, the general rule of ordinary wear and tear has not been replaced by explicit lease terms.  Flagg Energy Development Corp. v. General Motors, Corp., 244 Conn. 126, 148 (1998);  Gateway Co. v. Di Noia, 232 Conn. 223, 225, 235 (1995).  “The words ordinary wear and tear apply to situations of gradual deterioration resulting from use.”  “To decide what is reasonable wear and tear requires the court to consider the use of the premises.   In general, a tenant is not liable for damages caused by the use for which the property was leased.”   MTM Industries v. D'Amato Investments, LLC, Superior Court, judicial district of Ansonia–Milford at Milford, Docket Number CV05–4003128 S (April 21, 2006, Petroni, J.T.R.) [41 Conn. L. Rptr. 199].  “Wear and tear also includes normal repainting and cleaning which occurs at the end of a tenancy.”   DeMatteo v. Villana, Superior Court, judicial district of New Haven, Housing Session, Docket Number CVNH–9604–7493 (July 10, 1997, Levin, J.) [20 Conn. L. Rptr. 131].

The court has disallowed the claim for attorney fees without prejudice.   State v. Smith, 289 Conn. 598, 607 (2008).   The evidence on attorney fees did not meet the case law requirements.  Smith v. Snyder, 267 Conn. 456, 477, 479 (2004).   In addition there may be a set-off for the defendant's attorney fees on disallowed claims.  Gen.Stat. § 42–150bb.

The court finds that the plaintiffs have proven probable cause for the amount of $5,525.   The court notes that the manuscripted Application for Prejudgment Remedy as well as the unsigned complaint name William J. Rogers and Dawn E. Rogers as the plaintiffs.   The PJR preprinted form JD–CV–53 Rev. 7–01 only names William J. Rogers as the plaintiff.   The court notes that the space on form JD–CV–53 Rev 7–01 is too small for both plaintiffs' names and addresses to be typed.   Neither party raised the issue of whether there is one plaintiff or two plaintiffs.   The court will therefore issue a PJR order in favor of William J. Rogers and Dawn E. Rogers since that is consistent with the Application, unsigned complaint and the lease between the parties.   Ex. 1.

The court hereby enters a PJR remedy of an attachment of real property and the garnishment of checking accounts, savings accounts and certificate of deposits in favor of William J. Rogers and Dawn E. Rogers as against Pisano Brothers Automotive, Inc. in the amount of $5,525.   This PJR remedy is issued without the plaintiffs being required to post a bond pursuant to Gen.Stat. § 52–278(d)(a)(4) and Gen.Stat. § 52–278d(d).

The plaintiffs have filed Plaintiffs' Motion to Disclose Property dated January 6, 2011.   In the event that this real property attachment and the checking account, savings account and certificate of deposit garnishment is insufficient, the plaintiffs, William J. Rogers and Dawn E. Rogers, may reclaim the Plaintiffs' Motion to Disclose Property for a hearing.   The court may then consider ordering the defendant, Pisano Brothers Automotive, Inc., to disclose additional assets either in affidavit, documentary and/or testimonial form.   Gen.Stat. § 52–278n.   Thereafter, the court may permit further prejudgment remedies subject to the consideration, if any, of an appropriate bond.   Gen.Stat. §§ 52–278d(a)(4) and 52–278d(d).

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.