Three S. Development Co. v. Santore

• Decision Date: 15 May 1984
• Citation: 193 Conn. 174,474 A.2d 795
• Court: Connecticut Supreme Court
• Parties: THREE S. DEVELOPMENT COMPANY v. D. Earl SANTORE.

Page 795

474 A.2d 795

193 Conn. 174

THREE S. DEVELOPMENT COMPANY v. D. Earl SANTORE.

Supreme Court of Connecticut.

Argued March 13, 1984.

Decided May 15, 1984.

Eric N. Wellman, Danbury, for appellant (defendant).

Richard L. Newman, Bridgeport, for appellee (plaintiff).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, GRILLO and BIELUCH, JJ.

PARSKEY, Associate Justice.

The plaintiff brought the present action seeking monetary damages for a breach of contract and in connection therewith sought a prejudgment remedy by way of attachment of real estate of the defendant. From the judgment ordering the attachment the defendant has appealed.

In his appeal the defendant contends that the court erred in (1) finding probable cause that the contract in question had been extended beyond its stated termination date; (2) discounting the defendant's evidence showing that the plaintiff did not make a tender of performance; and (3) quashing the defendant's subpoena duces tecum. We find no error.

We first consider whether there was probable cause for the order of attachment. The language of our prejudgment remedy statutes; General Statutes § 52-278a et seq.; requires that the court determine "whether or not there is probable cause to sustain the validity of the plaintiff's claim"; General Statutes § 52-278d(a); that is to say "probable cause that judgment will be rendered in the matter in favor of the plaintiff." General Statutes § 52-278c(a)(2). "The legal idea of probable cause is a bona fide belief in the existence of the 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." Wall v. Toomey, 52 Conn 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, --- U.S. ----, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court's role in such a hearing is to determine probable success by weighing probabilities. Michael Papa Associates v. Julian, 178 Conn. 446, 447, 423 A.2d 105 (1979). In this process the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. Augeri v. C.F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977).

This court's role on review of the granting of a prejudgment remedy is very circumscribed. It is not to duplicate the trial court's weighing process, but rather to determine whether its conclusion was reasonable. "In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses." Id.

The issue before the court was a limited one. It is undisputed that in March, 1974, the parties entered into a written agreement for the sale of the defendant's real property, that before the sale could be consummated the defendant seller was expected to establish and settle marketable title to his property by a quiet title action, that if the seller was able to establish such title by October 18, 1975, the closing was to take place within fifteen days from such determination, but that if the seller was unable to establish marketable title by final judgment within such time period the agreement was to be deemed void, and that the buyer exercised its right under the contract to extend the agreement for an additional twelve month period, that is, to October 18, 1976. The dispute revolved about two questions. The first was whether, as the plaintiff claimed, the contract was extended for an additional period because of a delay in the prosecution of the quiet title action and second, whether there was a tender of performance.

It is conceded that at the time of the initial agreement the defendant was represented by Attorney Robert Payne not only with respect to the contract of sale but also with respect to the quiet title action. There was evidence of communications, both oral and written, between the plaintiff's attorney and Payne with respect to further extensions of the agreement and with respect to the progress of the quiet title action and that ultimately, in September, 1980, Payne wrote to the plaintiff to advise it that the quiet title action had been resolved in the defendant's favor and that the plaintiff should proceed with its preparations for closing. The defendant does not challenge this evidence but claims that there was no evidence that Payne represented him during this period. This claim is without merit. " 'The rule ... that when a personal relation, or state of things, is once established, the law presumes that it continues to exist until the contrary is shown, is too well settled to require discussion.' Bennett v. Agricultural Ins. Co., 51 Conn. 504, 510 [1884] ...." Nikitiuk v. Pishtey, 153 Conn. 545, 552, 219 A.2d 225 (1966). In the absence of evidence to the contrary the trial court could, on the basis of this presumption, conclude that Payne was acting on behalf of the defendant in extending the time for the performance of the agreement.

Nor can the defendant prevail on his claim that there was no consideration supporting the extension of time beyond October 18, 1976, and hence the agreement to extend is unenforceable. "In order to prove that a contract has been modified, the party asserting the modification must show mutual assent to its meaning and conditions. Lar-Rob Bus Corporation v. Fairfield,...