LLC v. Susan York (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S APPLICATION FOR A PREJUDGMENT REMEDY (110.00)

Defendant/third-party complainant brings this application for a prejudgment remedy against plaintiff/counterclaimant Bonnieview Woodwork, LLC and third-party defendant Joseph DeFelice, Bonnieview's sole member.   The underlying action involves Bonnieview's foreclosure of its mechanic's lien stemming from rehabilitation work it performed on defendant's historic home in Deep River, Connecticut.

The court held a hearing on defendant's PJR Application on July 28, 2011.¹  Based on the testimony presented at the hearing, it is clear that the defendant homeowner undertook the purchase of her historic home and its rehabilitation with little appreciation for the scope of the project or the issues involved.   Nor did she have the benefit of legal advice during her initial dealings with Bonnieview.   Eventually, the parties signed a contract providing that Bonnieview would provide rehabilitation services on defendant's home in exchange for payment of $54,000.00.²  The contract required defendant to pay Bonnieview a deposit, a progress payment at some unspecified time during the performance of the work, and then a final payment.   Defendant paid the deposit and Bonnieview performed the demolition portion of the work, at which point Bonnieview sought an additional $5,000.00 from defendant, which was less than the progress payment provided for in the contract.   When defendant indicated she did not have the money, Bonnieview filed its mechanic's lien, but did not leave the job site.   At this point, defendant consulted counsel, who advised her to terminate Bonnieview and order it off the job site.   The property was subsequently condemned by the local building official and has suffered continued deterioration since Bonnieview's termination.

“The language of our prejudgment remedy statutes;  General Statutes 52–278a et seq.;   requires that the court determine ‘whether or not there is probable cause to sustain the validity of the [applicant's] claim;’ General Statutes 52–278d(a);  that is to say ‘probable cause that judgment will be rendered in the matter in favor of the [applicant].’  General Statutes 52–278d(a)(2).   ‘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.’  Wall v. Toomey, 52 Conn. 35, 36 (1884).   Probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false.  Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535 (1983).”  Three S Development Co. v. Santore, 193 Conn. 174, 175 (1984).

The court finds that no probable cause exists to support applicant's claim against respondent DeFelice as the applicant contracted only with Bonnieview and there was no evidence presented of any acts that would support piercing the corporate veil.   As relates to defendant's application for a PR against Bonnieview, defendant has failed to prove probable cause based on the court's finding that the contract defendant executed entitled Bonnieview to payment at the time it requested it and that the filing of the mechanic's lien was neither unreasonable under the circumstances nor a valid reason to terminate Bonnieview.³

James W. Abrams, Judge

FOOTNOTES

FN1. Any factual findings contained in this Order should not be afforded collateral estoppel effect at trial of this matter as the parties will no doubt provide additional evidence and testimony at trial..  FN1. Any factual findings contained in this Order should not be afforded collateral estoppel effect at trial of this matter as the parties will no doubt provide additional evidence and testimony at trial.

FN2. Defendant argues that the contract is void under the Home Improvement Act, § 20–429, because the required cancellation provision, while contained in the contract, is not in ten-point bold face type as required by § 42–135a.   While the court recognizes the remedial purposes of the Home Improvement Act, it would be the height of hypertechnicality to void the contract for this reason and the court declines to do so..  FN2. Defendant argues that the contract is void under the Home Improvement Act, § 20–429, because the required cancellation provision, while contained in the contract, is not in ten-point bold face type as required by § 42–135a.   While the court recognizes the remedial purposes of the Home Improvement Act, it would be the height of hypertechnicality to void the contract for this reason and the court declines to do so.

FN3. The circumstances surrounding the parties' transaction, particularly in view of Ms. York's clearly evident lack of sophistication, would, under certain circumstances, give rise to serious questions regarding possible manipulation or coercion.   However, defendant did not present sufficient evidence at the hearing to support such a conclusion, even under a probable cause standard..  FN3. The circumstances surrounding the parties' transaction, particularly in view of Ms. York's clearly evident lack of sophistication, would, under certain circumstances, give rise to serious questions regarding possible manipulation or coercion.   However, defendant did not present sufficient evidence at the hearing to support such a conclusion, even under a probable cause standard.

Abrams, James W., J.