LLC v. Paul Locascio (2014)

MEMORANDUM OF DECISION

On October 17, 2013, the plaintiff, Bevmart, LLC, filed an application for prejudgment remedy against its former employee, the defendant Paul LoCascio.   In its application, the plaintiff claims the defendant stole cigarettes and liquor from its inventory.   Bevmart claims damages in excess of $11,000 and seeks a prejudgment order to secure that amount.   A probable cause hearing was held on January 22, 2014.   Mark Gerrity, the sole member of the plaintiff, testified, as did the defendant.   The court also received documentary evidence.

The probable cause hearing is a preliminary one and not a trial on the merits.   See People's United Bank v. Kudej, 134 Conn.App. 432, 440 (2012).   “The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim.”  Canty v. Otto, 304 Conn. 546, 565 (2009).  “[P]robable cause is a bona fide belief in the existence of 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 ․ Probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false.”  People's United Bank v. Kudej, supra, 134 Conn.App. 441.

Findings Based on Probable Cause

The plaintiff, a Connecticut limited liability company, is the owner and operator of liquor stores in Canton, Connecticut.   In November 2010, the plaintiff employed the defendant as manager of the Wine and Liquor Warehouse in Canton.   In February 2013, LoCascio stopped working.   He told Gerrity he had a better job offer which Gerrity could not match.   Plaintiff's computer showed cigarettes and liquor valued at $1,729.59 were missing from inventory.   The missing inventory included 15.3 cartons of cigarettes and some wine and liquor.   The defendant admitted he took merchandise for his wife.   He agreed to pay for it and signed an IOU dated February 7, 2013 for $1,729.59.   February 7, 2013 was also the defendant's last day of work.   The IOU has been fully paid.

Gerrity went on vacation until March 11, 2013, and after his return, he had an audit of inventory on hand through March 6, 2013.   The audit showed additional cartons of cigarettes and bottles of liquor missing from inventory.

The plaintiff claims $2,485.70 for 26.5 missing cartons of cigarettes and $386.73 for liquor shortages.   The total claimed is $2,871.43.  “Probable cause must exist as to both the merits and damages.”  Kosiorek v. Smigelski, 112 Conn.App. 315, 322–23, cert. denied, 291 Conn. 903 (2001).   Defenses, counterclaims and setoffs must be considered.   See Id. “[T]he party seeking the prejudgment remedy must present evidence that is sufficient to enable the court to determine the probable amount of the damages involved ․ Although the likely amount of damages need not be determined with mathematical precision ․ the plaintiff bears the burden of presenting evidence [that] affords a reasonable basis for measuring her loss.”  (Citations omitted;  internal quotation marks omitted.)  TES Franchising, LLC v. Feldman, 286 Conn. 132, 146 (2008).   The defendant does not dispute the math, but he claims the period of the audit included delivery dates subsequent to his employment.

The plaintiff has not shown probable cause to sustain the validity of damages in the amount of $2,485.70 for 26.5 missing cartons.   That is because the loss is calculated on an inventory of 202 cartons and the audit includes deliveries between February 8, 2013 and March 6, 2013, when LoCascio was no longer in Bevmart's employ.  (Exhibit 2 shows 17 cartons or 170 packs were delivered after February 7, 2013.)   There is, however, probable cause to sustain the validity of the claim for 9.5 missing cartons totaling $891 plus $386.73 for the missing liquor totaling $1,277.73.   The court may grant a prejudgment remedy in an amount less than that requested, in which case it need only determine that there is probable cause that a judgment in that lesser amount will be rendered, taking into account any defenses, counterclaims or setoffs.¹  See Connecticut Light & Power Co. v. Gilmore, 89 Conn.App. 164, 176, cert. denied, 275 Conn. 906 (2005).

The plaintiff is also seeking treble damages pursuant to General Statutes § 52–564 which provides, “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”  “Under this mandatory language, where liability is found, the damages are to be trebled.   See Stuart v. Stuart, [297 Conn. 26, 53 n.14, (2010) ] (§ 52–564 contains mandatory language).”   Jalbert v. Mulligan, Superior Court, judicial district of Waterbury, Docket No. CV–08–6001044–S (June 11, 2013, Shapiro, J.).  “[S]tatutory theft under § 52–564 is synonymous with larceny under General Statutes § 53a–119 ․ Pursuant to § 53a–119, [a] person commits larceny, when, with the intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner ․ [S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” (Citations omitted;  internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771 (2006).

There is probable cause to sustain the validity of the plaintiff's claim that LoCascio wrongfully took merchandise from the plaintiff with the intent to appropriate the same to himself or a third person.   Accordingly, there is probable cause to sustain Bevmart's claim for treble damages in the amount of $3,633.19.

The plaintiff's request for a prejudgment remedy order in the amount of $11,000 includes his treble damage claim of $8,614.29, costs of $500 and attorneys fees.  “[A] prejudgment remedy may include an award of attorneys fees only if a party can demonstrate probable cause that she will recover attorneys fees at trial.”  TES Franchising, LLC v. Feldman, supra, 286 Conn. 147.   “Even though a court may employ its own general knowledge in assessing the reasonableness of a claim for attorneys fees ․ no award for an attorneys fee may be made when the evidence is insufficient.”  (Citation omitted;  internal quotation marks omitted.)  Smith v. Snyder, 267 Conn. 456, 471–72 (2004).   Here, the plaintiff has provided neither sufficient evidence nor legal basis for an award of an attorneys fee.   Thus, the court cannot find probable cause to sustain the validity of a claim for an attorneys fee.

Having considered the credible evidence and the claims and arguments of counsel, the court finds there is probable cause to sustain the plaintiff's claims and that a judgment will be rendered in the matter in its favor in an amount of $3,633.19 plus court costs.

The court grants a prejudgment remedy to attach real estate owned by Paul LoCascio at 19 Church Street, Plantsville, Connecticut to the value of $4,000, as more particularly set forth in the Order of Attachment.

SO ORDERED.

BY THE COURT

Tanzer, J.T.R.

ORDER OF ATTACHMENT

The foregoing Application for Issuance of Prejudgment Remedy of Attachment to attach the goods or estate of the Defendant, Paul LoCascio, in the above-entitled matter having been presented to this Court and after due hearing thereon, it appearing that the same should be granted, it is hereby ORDERED:

That the Plaintiff may attach to the value of $4,000 the following goods, effects and estate of the Defendant, as more particularly bounded and described as follows:

A certain piece of land in the name of Paul LoCascio known as 19 Church Street, Plantsville, CT 06479 in Volume 1224 at Page 871 as more particularly bounded and described in the attached Schedule A.

Dated at New Britain, CT this 4th day of March 2014.

BY THE COURT

Tanzer, Judge

SCHEDULE A

All that certain piece or parcel of land, with all buildings and improvements thereon standing, located on the easterly side of Church Street in the Village of Plantsville, Town of Southington, County of Hartford and State of Connecticut, bounded and described as follows:

NORTHERLY:  by land now or formerly of Paul Armor and Betty Armor, 140 feet;

EASTERLY:  by land now or formerly of Raymond Joyal and Bernice Joyal, 60 feet;

SOUTHERLY:  by land now or formerly of Rudolph J. Sroka and Suzanne K. Sroka, 140 feet;  and

WESTERLY:  by the highway, Church Street, 60 feet.

FOOTNOTES

FN1. This court has considered the defendant's claims for setoff and homestead exemption and finds neither applicable..  FN1. This court has considered the defendant's claims for setoff and homestead exemption and finds neither applicable.

Tanzer, Lois, J.T.R.