Augeri v. C. F. Wooding Co.
| Decision Date | 30 August 1977 |
| Court | Connecticut Supreme Court |
| Parties | Michael AUGERI et al. v. C. F. WOODING COMPANY. |
Robert L. Fay, Wallingford, with whom, on the brief, was Richard C. Hannan, Jr., Wallingford, for appellant (defendant).
Cathleen M. Mulligan, Meriden, with whom, on the brief, was Socrates H. Mihalakos, Chesire, for appellees (plaintiffs).
Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ. LOISELLE, Associate Justice.
The defendant has appealed from an order granting the plaintiff a prejudgment remedy in an action for breach of contract. The issue is whether the lower court erred in concluding that the plaintiff had established probable cause that the parties had entered into a valid and enforceable contract.
The defendant has briefed only one attack on the finding, that made upon the conclusion that the plaintiff had shown probable cause to sustain the validity of his claim. The court found that the plaintiff, an automobile dealer contemplating a move to a new location, entered into negotiations with the defendant building contractor, and on July 28, 1973, the parties entered into an agreement concerning the construction of new facilities, at a cost not to exceed $250,000. The defendant moved equipment to the site, preparatory to undertaking construction, but a dispute arose, and the defendant claimed it could not build the structure for that price. When the dispute was not resolved, the defendant left the site and the plaintiff entered into an agreement with another contractor at a higher price.
The court found that the plaintiff had shown probable cause to sustain the validity of his claim, and granted a prejudgment remedy of $100,000.
The defendant's sole claim presented on appeal is that the agreement between the parties contained so many open terms that it was not enforceable. This claim was overruled by the trial court. The defendant alleges that the agreement did not mention the type of building or its location, the type, kind or size of outside storage enclosures, that it provided for "landscaping to be whatever is deemed necessary," "whatever is deemed necessary to light the complete area as suggested by the Connecticut Light and Power Co.," that defendant was to "design plans according with Mr. Michael Augeri and Mr. Walter Damuck's layout," that no mention was made of the kind or type of site work, foundation, heating, air conditioning, insulation, plumbing, electrical and other details, and that there was no time for commencement or completion, and no mention as to when or by whom payment was to be made to the defendant.
Section 52-278c of the General Statutes requires a hearing prior to the granting of most prejudgment remedies. In this case, such a hearing was held, and the defendant appeared and was heard. Thus this appeal presents no constitutional problem. See, e. g., Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778.
Section 52-278d of the General Statutes requires that the hearing be "limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff's claim." Because "(t)he adjudication made by the court on the application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiff's cause of action"; E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-29, 356 A.2d 893, 896, the plaintiff need not establish by a preponderance of the evidence the final merit of his claim, but only its probable validity. See also Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 583, 376 A.2d 60.
It should be observed that "probable cause to sustain the validity of the plaintiff's claim" differs significantly from the probable cause standard used in criminal cases. See, e. g., State v. Wilson, 153 Conn. 39, 41-42, 212 A.2d 75. In the latter, defenses are not weighed because there is no opportunity for the defendant to be heard before the determination of probable cause is made, but at a prejudgment remedy hearing a good defense, such as infancy or the running of the statute of limitations, will be enough to show that there is no "probable cause that judgment will be rendered in the matter in favor of the plaintiff." Section 52-278c, subd. A(b) of the General Statutes. Thus the court, at the hearing on an application for a prejudgment remedy, must evaluate the arguments and evidence produced by both parties.
The hearing, however, is not intended to be a full-scale trial on the merits. The court, without making any final decision on these matters, may weigh the oral testimony and the...
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...of the trier of fact and this court will not usurp that role" [internal quotation marks omitted]); see also Augeri v. C. F. Wooding Co., 173 Conn. 426, 428, 378 A.2d 538 (1977) (noting that we defer to trial court's credibility findings even though prejudgment remedy proceedings do not "ult......
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