Schoonmaker, George & Colin, P.C. v. Diane Collins (2011)

MEMORANDUM OF DECISION ON PREJUDGMENT REMEDY (# 100.31)

This case comes to this court as a prejudgment remedy.   The court heard the parties, reviewed the evidence introduced and heard the witnesses.   The standard of proof in a prejudgment remedy is, is there probable cause that a judgment in the amount sought would be obtained by the plaintiff.   The court has reviewed the affidavit in support of the application and finds that the allegation therein have been proven.   The court finds at this time based on the probable cause standard that the defendant has not proved her defenses.

The primary thrust of the defense of the defendant is that the plaintiff in exercising their legal representation deviated from the professional standard of care.   In that they did work that was unsuccessful duplicative or otherwise improper.   The primary claim is that the work done on the original motion to vacate the premises which was denied should have been done better so that it was granted and that she would not have had to go in the second time.   Also there's a claim that more time was spent for the trial and preparation was appropriate.

Section 13–4 of the Practice Book requires all experts be disclosed and that they set forth the testimony they intend to render.   There was no 13–4 disclosure in this case nor did any expert testify concerning the deviation from the standard of care.   A medical and legal malpractice case under Connecticut law may not be proven without an expert witness.   The fact that the defendant was not satisfied with the work done does not mean that there was a deviation from the standard of care.   This certainly can be presented at the final trial but at this time there is no such evidence.

Dissolution of marriage cases are always difficult.   This one appeared to be especially difficult.   The testimony from Attorney Louise Truax indicated that the defendant in the divorce case the husband, was basically an impossible guy.   She was the attorney for the children and not a party to this action, she said there was no way that this case could be settled.   As an issue would be resolved the husband would move away from the settlement of that issue and find another issue.   She also has an outstanding bill of approximately $65,000.   That issue is not before the court but it is some indication of the difficulty that this original divorce case had.   She said that the defendant husband was a moving target.   Trying to settle with him was like trying to “nail Jell–O to a tree.”   Court finds that the time expended and the nature of the billings conform to the retainer agreement.

Accordingly the court grants a prejudgment remedy in the sum of $80,089.16 as set forth in paragraph 8 of the affidavit as of May 9th, 2011.   The court does not grant interest on the unpaid balance since the retainer agreement did not provide for interest and the court does not find the money was wrongfully detained or retained under the statute since there was a bona fide dispute as to the amount owed.

SO ORDERED.

EDWARD R. KARAZIN, Jr.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.