Joseph Garibaldi et al. v. William Rhodes dba William R. Rhodes Heating & Air Conditioning (2013)

MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY

On August 28, 2013, the court conducted a full evidentiary probable cause hearing on the plaintiff's application for prejudgment remedy, pursuant to General Statutes § 52–278d(a), seeking attachment or garnishment of inchoate assets of the defendant.

This statute requires a trial court to make a probable cause determination as to both the validity of the plaintiff's claim and the amount of the remedy sought.  Kosiorek v. Smigelski, 112 Conn.App. 315, 322, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009).  “In other words, to justify the issuance of a prejudgment remedy, probable cause must be established both as to the merits of the cause of action and as to the amount of the requested attachment ․ Therefore, the party seeking the prejudgment remedy must present evidence that is sufficient to enable the court to determine the probable amount of the damages involved.”  (Emphasis in original;  internal citations omitted.)  Id., 322–23.  “[I]t is well settled that, in determining whether to grant a prejudgment remedy, the trial court must evaluate both parties' evidence as well as any defenses, counterclaims and setoffs ․ Such consideration is significant because a valid defense has the ability to defeat a finding of probable cause.”  TES Franchising, LLC v. Feldman, supra, 286 Conn. 132, 145, 943 A.2d 406 (2008) (citations and internal quotes omitted).

In their amended complaint dated December 11, 2012, the plaintiffs allege breach of contract, negligence, violation of the Connecticut Unfair Trade Practices Act [CUTPA, General Statutes § 42–110a, et seq.] and negligent misrepresentation by the defendant.   The defendant denies the allegations and alleges as special defenses that the plaintiffs had a well pump installed which was too small and/or inadequate wells drilled to provide adequate heat transfer.

The court finds the following facts by a preponderance of the evidence.   In June 2009, the parties met and agreed that the defendant would provide certain services and equipment to the plaintiffs in order to furnish the plaintiffs with geothermal heating and air conditioning of their home.   The services and equipment were memorialized in plaintiff's exhibit 1, a document which was signed by plaintiff Joseph Garibaldi and defendant William Rhodes on June 13, 2009.   Both sides are in agreement that the goods and services in plaintiff's exhibit 1, which they characterize as a contract, were substantially performed and provided to the plaintiffs' satisfaction and were paid for by the plaintiffs.   Both sides also agree that, nevertheless, the geothermal system installed in the plaintiffs' home does not function sufficiently to provide adequate heating or cooling.

On behalf of the plaintiff, Adam Weissman, P.E., a representative of GeoInsight, Inc., an engineering and environmental consulting firm, testified and his report was entered as plaintiff's exhibit 2. Mr. Weissman's opinion is that the poor performance is due to a lack of adequate heat transfer with the earth.   In particular, Mr. Weissman succinctly opines in his report that “the heat pump/geothermal equipment installed should be more than capable of providing adequate heating and cooling for the home as well as providing appropriate cost savings.”  “[T]he well does not appear to provide adequate heat transfer for optimum system performance.”  “Based on system sizing, three wells (two additional) would be expected to be required.”

In other words, according to the plaintiff's own expert, the services and goods of the defendant are not the problem.   The insufficiency of heat transfer due to the inadequacy of the well is the problem.¹

The defendant credibly testified that he had no responsibility for the digging of the wells, the number of wells or the adequacy of the well pump.   Plaintiffs' exhibit 1 supports this testimony as it specifically excluded well drilling and well pumps as the responsibility of the defendant.   Thus, the only evidence presented at the hearing is that the root cause of the insufficiency of the system is something for which the defendant had no responsibility.

The plaintiffs have produced no credible evidence that the parties agreed that the defendant warranted that the geothermal system would perform to any particular standard, such as temperature.   Neither is there any credible evidence that the defendant was retained to act as a general contractor or was hired to ensure the functionality of the system.   The defendant specifically denied that his role was as a general contractor.   The plaintiff, Joseph Garibaldi, candidly stated that he did not have a specific discussion with the defendant, although he presumed that his retention of the defendant for the provision of the outlined goods and services included assurances by the defendant that the system would properly function.

Although he had not guaranteed that the system would work, nevertheless, the defendant attempted to alleviate the poor performance of the system by purchasing a larger capacity well pump at his own expense.   Additionally, the plaintiff, Joseph Garibaldi, testified that the defendant had workers at his home for more than 90 days, presumably attempting to alleviate the poor performance of the system.

The court finds that the plaintiffs have failed to set forth any evidence upon which the court can find probable cause as to the validity of the plaintiffs' four causes of action.   Therefore, the application for prejudgment remedy is denied.

Robert E. Young, Judge

FOOTNOTES

FN1. Mr. Weissman also takes issue with the system being designed as an “open loop system” which, because of its inadequacy here, discharges a large amount of essentially clean water into the public sewer system contrary to code.   However, there was no evidence that the defendant was responsible for the discharge into the sewer.   Further, the defendant credibly denied that he was responsible for the selection of an open loop system, that being the decision of the well driller.   The defendant additionally testified that the equipment which he provided would be utilized whether it was an open loop or closed loop system..  FN1. Mr. Weissman also takes issue with the system being designed as an “open loop system” which, because of its inadequacy here, discharges a large amount of essentially clean water into the public sewer system contrary to code.   However, there was no evidence that the defendant was responsible for the discharge into the sewer.   Further, the defendant credibly denied that he was responsible for the selection of an open loop system, that being the decision of the well driller.   The defendant additionally testified that the equipment which he provided would be utilized whether it was an open loop or closed loop system.

Young, Robert E., J.