William Todd Kirk v. LLC (2011)

Order on Plaintiff's Application for Prejudgment Remedy (No. 100.31)

WHEREAS, Plaintiff William Todd Kirk has commenced this action against Mphasize, LLC, a Connecticut limited liability company of which he was formerly a managing member and by which he was formerly employed, claiming breach of contract in that Emphasize, LLC has allegedly breached a certain Redemption and Release Agreement of July 29, 2010 in that it has allegedly failed to pay to the plaintiff the sum of $211,914.45 of the agreed $500,000 purchase price for plaintiff's fifty percent membership interest in Emphasize, LLC;  and

WHEREAS, Plaintiff has applied pursuant to Conn. Gen.Stat. §§ 52–278a et seq. for a prejudgment remedy against the property or assets of Mphasize, LLC in the amount of $211,914.95, claiming that there is probable cause that a judgment in that amount or greater will be rendered in plaintiff's favor, taking into account any known defenses, counterclaims, or setoffs;  and

WHEREAS, Defendant Mphasize, LLC did make partial payments of the said $500,000 purchase price but then failed to pay the final $211,914.45 of that purchase price, allegedly because it discovered that plaintiff William Todd Kirk had been usurping corporate opportunities for consultation work for clients or customers in the marketing or advertising field which opportunities properly belonged to Mphasize, LLC, and has refused to make further payments to William Todd Kirk until he accounts for incomes received from services performed pursuant to such corporate opportunities, and has indicated that it has a valid counterclaim or setoff to the plaintiff's complaint because of the such alleged usurpations;  and

WHEREAS, the Court heard the testimony of the parties and received exhibits into evidence on April 4, 2011, and April 7, 2011 and the court has now reviewed and considered all such evidence;  and

WHEREAS, the court finds and concludes that the plaintiff has shown probable cause that it will recover against the defendant the sum of $211,914.45 or greater on its complaint for breach of contract;  but the court also finds and concludes that the defendant has shown probable cause that it will succeed on its counterclaim or setoff because of usurpation of corporate opportunities of Mphasize, LLC in an amount equal to or greater than the plaintiff's claims against the defendant, and that the plaintiff's application for prejudgment remedy therefore should be denied on the consideration of defendant's known counterclaim or setoff, and it is therefore hereby:

ORDERED, that the plaintiff's Application for Prejudgment Remedy is denied.

Alfred J. Jennings, Jr.

Judge Trial Referee

Jennings, Alfred J., J.T.R.