Opinion
No. X06-CV03-01834 85 S
June 1, 2005
MEMORANDUM OF DECISION
A bevy of motions has been filed in this case as a result of actions taken by the defendants subsequent to the appointment by this court of a receiver to oversee certain activities of Enfield Shade Tobacco, LLC (Enfield Shade Tobacco), a company engaged in the growing of shade tobacco. The plaintiff Brian F. Kogut, who is an officer and member of Enfield Shade Tobacco claims that the defendants Alexander K. Chickosky and Maurine D. Chickosky, who are also officers and members of Enfield Shade Tobacco, acted in concert with the defendants Altadis U.S.A., Inc. (Altadis U.S.A.) and Altadis Shade Company, LLC (Altadis Shade) to take actions in violation of the court orders previously issued by this court in connection with its appointment of a receiver. Kogut has filed a motion for contempt against the Chickoskys and an application for a temporary injunction against the Chickoskys, Altadis U.S.A. and Altadis Shade. Kogut has also filed an application for a prejudgment remedy against the Altadis defendants. Finally, the Altadis defendants have moved for a stay of these proceedings pending arbitration of the parties' dispute.
Enfield Shade Tobacco is also a plaintiff in this action as Brian Kogut has brought derivative claims on its behalf. Since the claims are derivative, I will henceforth refer to Brian Kogut as the plaintiff.
The court held three days of hearings ending March 28, 2005 on the parties' motions. Based on the evidence presented, I find the following facts. Enfield Shade Tobacco is a limited liability corporation with only three members: Kogut, who holds a 50% membership interest, and Alexander K. Chickosky and Maurine D. Chickosky, who each hold a 25% membership interest. Enfield Shade's operating agreement provides that checks and withdrawals in amounts over $5,000 from company bank accounts require the written approval of a majority in interest, which is defined in the agreement as members holding an aggregate of more than 50% of the percentage interests held by all members. The operating agreement further provides that the consent of a super majority in interest, which is defined as members holding an aggregate of' 75% or more of the percentage interests held by all members, is required for (1) the selling, conveying, leasing and mortgaging of the company property or any modifications to such agreements; (2) the borrowing and lending of money on behalf of the company; and (3) the entering into agreements of any costs or expenses of the business in excess of $5,000. Since Kogut held a 50% interest in the company, the effect of these provisions was to require Kogut's approval for the company to engage in any of the enumerated actions.
In a decision issued October 29, 2004, I found that Alexander K. Chickosky and Maurine D. Chickosky had taken various actions on behalf of Enfield Shade Tobacco without the approval of Kogut as required by the company's operating agreement. Kogut v. Chicosky, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV03-01834 85 S (Oct. 29, 2004) (Alander, J.). These unauthorized actions included the leasing of property owned by the Chickoskys, the payment of substantial salaries to Alexander K. Chickosky and the signing of a commercial loan agreement with Altadis U.S.A. On October 29, 2004, I granted the plaintiff's request that a receiver for Enfield Shade Tobacco be appointed. I stated that the primary responsibility of the receiver was to review the following future actions of the company for their reasonableness and appropriateness and approve as appropriate: (1) costs or expenditures in excess of $5,000, including the salary of Alexander Chickosky and the rent for the property at 128 Moody Road, Enfield, Connecticut; (2) checks and withdrawals in amounts over $5,000 from company bank accounts; (3) the selling, conveying, leasing and mortgaging of company property or any modifications to such agreements; and (4) the borrowing and lending of money on behalf of the company. I further ordered Alexander K. Chickosky and Maurine D. Chickosky not to engage on behalf of Enfield Shade Tobacco in any of the above actions without the prior review and approval of the receiver. On December 7, 2004, I appointed Jon X. Koliani of Kostin, Ruffkess Company, LLC as the receiver for Enfield Shade Tobacco and I reiterated that the parties were ordered not to engage on behalf of Enfield Shade Tobacco in any of the designated actions without the prior review and approval of the receiver. Kogut v. Chicosky, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X06-CV03-01834 85 S (Dec. 7, 2004) (Alander, J.).
Notwithstanding this court's appointment of a receiver to govern certain specified actions of Enfield Shade Tobacco, Alexander K. Chickosky and Maurine D. Chickosky in concert with Altadis U.S.A. and Altadis Shade engaged in a series of actions designed to undermine the ability of the receiver to fulfill his obligations to the court. In addition, notwithstanding this court's order not to engage in specified transactions on behalf of Enfield Shade Tobacco without the prior review and approval of the receiver, the Chickoskys in concert with the Altadis defendants undertook such actions without the receiver's review or approval in direct violation of the court's order. The following additional facts establish the above findings.
On July 13, 1998, Altadis U.S.A. entered into a joint venture with Enfield Shade Tobacco to form Encon Shade Company, LLC (Encon) for the purposes of growing shade tobacco. Altadis U.S.A. and Enfield Shade Tobacco each owned 50% of Encon. Pursuant to the joint venture, Enfield Shade Tobacco was to lease land, oversee the construction of barns and greenhouses, procure machinery and equipment and provide growing, harvesting, curing, fermenting, storage and shipping services. Altadis U.S.A. was to provide the funding for the operation through cash advances which were to be repaid by Encon. The parties' joint venture continued to operate from 1998 until the end of 2004. After the issuance of this court's decision on October 29, 2004, Altadis U.S.A. decided to terminate the Encon joint venture. The decision of Altadis U.S.A. to terminate Encon was motivated by a desire to avoid working with the receiver appointed for Enfield Shade Tobacco and a desire to remove Kogut from the business. On November 10, 2004, Altadis U.S.A. formed Altadis Shade for the purpose of assuming the growing operations previously undertaken as part of Encon by Enfield Shade Tobacco. The defendants decided to transfer the property and assets of Enfield Shade Tobacco to Encon so that Altadis U.S.A. could ultimately obtain possession of that property through its existing security interest in the property and assets of Encon. In furtherance of their plan, Alexander Chickosky, at the behest of Altadis U.S.A., took steps to transfer property and assets of Enfield Shade Tobacco to Encon. Specifically, Alexander Chickosky took the following actions, each of which was undertaken without the review and approval of the receiver in violation of the court's order:
Altadis U.S.A. is the successor corporation to Consolidated Cigar Corporation which was the entity which initially entered into the joint venture with Enfield Shade Tobacco.
Altadis Shade is owned by Connecticut Shade, LLC which in turn is owned by Altadis U.S.A.
On November 5, 2004, he issued a check in the amount of $12,000 to Encon from the Enfield Shade Tobacco payroll account.
In November 2004, he transferred title to fifty motor vehicles from Enfield Shade Tobacco to Encon.
On December 8, 2004, he transferred the leases on six Ford trucks and one Ford SUV motor vehicle from Enfield Shade Tobacco to Encon.
After receiving notice of the court's October 29, 2004 orders, he transferred the leases on two John Deere tractors from Enfield Shade Tobacco to Encon.
After receiving notice of the court's October 29, 2004 orders, he transferred the leases on irrigation equipment from Enfield Shade Tobacco to Encon.
In addition, on November 9, 2004, the Chickoskys issued a check in the amount of $13,903 from the Enfield Shade Tobacco operating account without the review or approval of the receiver.
At the behest of Altadis U.S.A., Alexander Chickosky modified the leases held by Enfield Shade Tobacco on land used to grow shade tobacco to remove Enfield Shade Tobacco and substitute Encon as the lessee. Eighteen leases were so modified. Eleven of the lease modifications were effectuated in the days before this court issued its decision on October 29, 2004. Six of the lease modifications, although ostensibly signed by Alexander Chicosky on October 26, 2004, did not become effective until after the court's decision because the lessor signed the modification after October 29, 2004. An additional lease modification, for the property known as Route 190 in the towns of Enfield and Somers, Connecticut, was not submitted as evidence but other evidence indicates that it was completed on November 11, 2004. Each of these 18 pieces of property was subsequently leased on January 1, 2005 by Altadis Shade. All of these lease modifications were made in contravention of the requirements of the Enfield Shade Tobacco operating agreement because they were not made with the consent of Kogut. Seven of the lease modifications violated this court's order because they were effectuated after my decision of October 29, 2004.
Enfield Shade Tobacco also held a lease with an expiration date of May 31, 2009 for the growing of tobacco on property known as Chickosky's farm, a 40-acre farm at Moody Road and Park Street, Enfield, Connecticut, which was owned by the Chickoskys. The rent on the lease had been paid through May 1, 2005. On January 1, 2005, the Chickoskys entered into a lease for the property with Altadis Shade. The intent of the lease with Altadis Shade was to terminate the existing lease on the property held by Enfield Shade Tobacco. It also had the practical effect of ousting Enfield Shade Tobacco from possession of the land.
After the Chickoskys succeeded in transferring all of the assets and property of Enfield Shade Tobacco to Encon, Altadis U.S.A., on January 18, 2005, gave notice to Encon that it had taken possession of the property of Encon pursuant to its security agreement because Encon was in default in repaying its debt to Altadis U.S.A. On February 28, 2005, Altadis U.S.A. took ownership of Encon's property pursuant to a secured party bill of sale.
The cumulative effect of the actions taken by the Chickoskys and the Altadis defendants is that all the motor vehicles, equipment, and land once held by Enfield Shade Tobacco and used by it for the production of shade tobacco are now held by Altadis Shade. Altadis Shade has also hired for its growing operation the Chickoskys and all the former employees of Enfield Shade Tobacco. These actions have emasculated the ability of the receiver appointed by the court to oversee Enfield Shade Tobacco because, for all practical purposes, there is nothing left of Enfield Shade Tobacco to oversee.
In light of the defendants' actions, the court, at the receiver's request, has relieved the receiver of his responsibilities.
I Violations of Court Orders
Kogut asks this court to find Alexander and Maurine Chickosky in contempt of its orders of October 29, 2004 and December 7, 2004. With respect to his motion for contempt, Kogut asks that the court order the Chickoskys to return all funds transferred from Enfield Shade Tobacco to Encon; reimburse Enfield Shade Tobacco for the value of the assets transferred from Enfield Shade Tobacco to Encon; reimburse Enfield Shade Tobacco for the rent that was prepaid for the property located at 128 Moody Road, Enfield, Connecticut; and award him attorneys fees. Kogut also seeks injunctive relief against the Chickoskys and the Altadis defendants. Specifically, he asks that the Chickoskys be ordered to refrain from (1) working for Altadis Shade; (2) allowing any entity other than Enfield Shade Tobacco to use its assets or the assets of Encon; (3) allowing any entity other than Enfield Shade Tobacco to use the land, greenhouses, labor camps, and barns located at 128 Moody Road, Enfield, Connecticut; (4) transferring the assets, leases and operations of Enfield Shade Tobacco and Encon to Altadis Shade or any other entity; and (5) otherwise acting in a manner contrary to the best interests of Enfield Shade Tobacco. With respect to the Altadis U.S.A., Kogut requests that it be enjoined from (1) discontinuing Encon; (2) refusing to make cash advances to Enfield Shade for Encon; (3) transferring the assets and operations of Enfield Shade and Encon to Altadis Shade or any other entity; (4) operating a competing growing operation, including Altadis Shade; (5) using the assets of Enfield Shade and Encon for any purpose; (6) employing or compensating the Chickoskys both directly or through Altadis Shade; and (7) otherwise acting in a manner contrary to the best interests of Encon or Enfield Shade Tobacco.
The Chickoskys contend that they did not act in contempt of the court's orders. They claim that they did not personally receive notice of the court's October 29, 2004 decision and orders until November 12, 2005. Since most of the actions taken in violation of the court's orders occurred prior to November 12, they argue that they should not be held in contempt. I do not agree.
"Civil contempt involves the wilful failure to comply with an applicable court order." In Re Daniel C., 63 Conn.App. 339, 369 (2001). "To constitute contempt, a party's conduct must be wilful . . . Noncompliance alone will not support a judgment of contempt." (Internal quotation marks and citations omitted.) Kennedy v. Kennedy, 88 Conn.App. 442, 443-44 (2005).
I do not find credible the Chickoskys' testimony that they did not receive personal notice of the court's October 29, 2004 decision until November 12, 2005, a full two weeks after the issuance of the decision. Their attorney represented to the court that he received the court's decision on November 5, 2005. The Chickoskys provided no explanation why their attorney would have waited a full week to tell them of a court decision appointing a receiver for their business and issuing orders prohibiting certain actions. The reasonable inference from the flurry of activity that occurred immediately after this court's orders of October 29, 2004 is that the Chickoskys were acting in response to their receipt of those orders.
Even accepting the Chickoskys' testimony at face value, they took actions after November 12, 2004 in willful violation of the court's orders. On December 8, 2004, Alexander Chickosky transferred the leases on six Ford trucks and one Ford SUV from Enfield Shade Tobacco to Encon in violation of this court's order that he not convey company property or modify leases to company property without consent of the receiver. After admittedly receiving notice of this court's orders, Alexander Chickosky also transferred two leases for John Deere tractors and leases for irrigation equipment from Enfield Shade Tobacco to Encon. On January 1, 2005, Alexander and Maurine Chickosky also signed a lease for their property at 128 Moody Road, Enfield, Connecticut with Altadis Shade with the intent and practical effect of transferring possession of the land away from Enfield Shade Tobacco. After receiving notice of the court's decision appointing a receiver for Enfield Shade Tobacco, the Chickoskys also continued to participate in a scheme with Altadis U.S.A. to emasculate Enfield Shade Tobacco by transferring all its employees, motor vehicles, equipment and land from Enfield Shade Tobacco to Altadis U.S.A. through Altadis Shade. I find that each of these actions was taken in willful violation of this court's orders. Pursuant to General Statutes § 52-256b, I find that the plaintiff is entitled to an award of reasonable attorneys fees. The plaintiff is directed to submit to the court a motion setting forth the amount of fees requested together with an affidavit setting forth the basis for that amount.
Section 52-256b provides that "(a) When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt."
Irrespective of this court's finding of contempt against the Chickoskys, the plaintiff seeks and is entitled to further orders of the court to remedy the violations of this court's previous orders. "[E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982)." Nelson v. Nelson, 13 Conn.App. 355, 367 (1988). The court has inherent authority to coerce compliance with its orders. Papa v. New Haven Federation of Teachers, supra, 186 Conn. 737. See also Avalonbay Communities v. Plan Zoning Commission, 260 Conn. 232, 242-43 (2002). That authority extends to persons and entities who with knowledge of the court's orders act in concert with persons restrained by the order. DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 277 (1984) ("The law is clear that a person may be bound by the terms of an injunction, even though not a party to the action, if he has notice or knowledge of the order and is within the class of persons whose conduct is entitled to be restrained or who acts in concert with such persons"). See also Remington Rand, Inc. v. Typewriter Assemblers' Lodge No. 616, 4 Conn.Sup. 150, 154 (1936). I find based on the evidence presented that Altadis U.S.A. and Altadis Shade had knowledge of the court's orders of October 29, 2004 and December 7, 2004 and, while in possession of such knowledge, acted in concert with the Chickoskys to take actions in violation of those orders.
Exercising its inherent powers to remedy violations of its previous court orders, the court hereby issues the following orders against the defendants Alexander K. Chickosky, Maurine D. Chickosky, Altadis U.S.A., and Altadis Shade, any entities controlled by the defendants, and their employees, and agents:
1. The defendants are ordered to refrain from using the property known as "Chickosky farm," 128 Moody Road, Enfield Connecticut, including its greenhouses, labor camps and barns for any business purpose, including the growing of shade tobacco or any activity related to the growing of shade tobacco; or transferring said property to any person or entity;
2. The defendants are ordered to refrain from using or transferring the fifty motor vehicles for which Enfield Shade Tobacco previously held title prior to the transfer of title to Encon in 2004;
3. The defendants are ordered to refrain from using or transferring the seven motor vehicles whose leases with Ford were previously transferred to Encon;
4. The defendants are ordered to refrain from using or transferring the two John Deere tractors and the irrigation equipment whose leases were previously transferred to Encon;
5. The defendants are ordered to place in escrow with counsel for the plaintiff the sum of $12,000 which represents the funds paid to Encon through a check dated November 5, 2004; and
6. The defendants are ordered to place in escrow with counsel for the plaintiff the sum of $24,000 which represents the rent for Chickosky's Farm which was prepaid by Enfield Shade Tobacco for the period from January 1, 2005 through May 1, 2005.
Each of the above orders shall remain in effect until further order of the court. Counsel for the defendants is hereby ordered to immediately provide to each defendant a copy of these orders.
II Motion for Stay
The defendants Altadis U.S.A. and Altadis Shade have moved to stay the court proceedings against them on the grounds that the Encon member's agreement and the Encon joint venture agreement contain mandatory arbitration provisions. Kogut contends that a stay is not appropriate because (1) Altadis Shade is not a party to the Encon agreements and (2) the Encon member's agreement contains an additional provision authorizing equitable relief through the courts. I agree with Altadis U.S.A. and Altadis Shade that those claims of the plaintiffs which assert violations of the Encon agreements should be stayed pursuant to the arbitration provisions of those agreements. I do not agree that a stay is appropriate with respect to the plaintiff's claims which assert causes of action related to the Enfield Shade Tobacco member's agreement and violation of this court's orders.
The Encon member's agreement and the Encon joint venture operating agreement contain substantially similar "Dispute Resolution" sections. These sections provide in relevant part that any dispute "shall be fully and finally resolved in binding arbitration in accordance with the rules of the American Arbitration Association ("AAA") . . . To the maximum extent permitted by law, the decision of the arbitrators shall be final and without appeal . . . The provisions of this section shall be the sole and exclusive remedy of the parties concerning any matter arising out of this Agreement or the transactions contemplated hereby." The Encon member's agreement contains an additional "Covenants" section which provides as follows: "The parties hereto agree that [Encon] and party hereto not in breach shall have the right and shall be entitled to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any breach or threatened breach of the provisions of this Agreement could cause irreparable injury to the non-breaching party and that money damages would not provide an adequate remedy to either side." Each agreement further provides that it shall be governed by New York law.
These provisions on their face mandate arbitration of any dispute related to the Encon agreements. The "Covenants" section simply authorizes a party not in breach of the Encon member's agreement to bring an action in court for specific performance of the agreement. Specific performance is an equitable remedy which allows a court to compel a party to a contract to substantially perform what he has undertaken to do. Motor Vehicle Manufacturers v. State, 75 N.Y.2d 175, 181-82 (1990). See also Gager v. Gager Peterson, LLP, 76 Conn.App. 552, 560 (2003). Since the plaintiff does not seek in this court action specific performance of the Encon member's agreement, the Convenants section of that agreement does not apply.
The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., applies to contracts involving interstate and international commerce. Prima Paint Corp. v. Flood Conklin Mfg., Co., 388 U.S. 402 (1967). The Encon agreements impact international commerce as the shade tobacco grown pursuant to the agreements is shipped to the Dominican Republic for sorting, sizing, mulling and packing. The FAA governs claims in state court as well as federal court and pre-empts all contrary state statutes. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995); Southland Corp. v. Keating, 465 U.S. 1 (1984). Section 2 of the FAA provides that a written arbitration provision in any contract involving commerce "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The primary purpose of the FAA "was to ensure judicial enforcement of privately made agreements to arbitrate." Dean Witter Reynolds v. Byrd, 470 U.S. 213, 219 (1985).
Here, the parties to the Encon agreements have chosen that the agreements be governed by New York law. Accordingly, this court must look to New York law to determine the validity of the request by the Altadis defendants to stay these proceedings to allow arbitration of the dispute. Cf. Volt Information Sciences v. Leland Stanford Jr. Univ., 489 U.S. 468 (1989) (holding that a California statute permitting a court to stay arbitration pending resolution of related litigation was not preempted by the FAA where the parties included a clause in their arbitration agreement stating that the agreement will be governed by California law). New York statutes provide that a motion to compel arbitration may be made in an action pending in court. N.Y.C.P.L.R. § 7503(a) (McKinney 2000). "On motions to stay or to compel arbitration there are three threshold questions to be resolved by the courts: whether the parties made a valid agreement to arbitrate, whether if such an agreement was made it has been complied with, and whether the claim sought to be arbitrated would be barred by limitation of time had it been asserted in a court of the State." Rockland (Primiano Constr.), 51 N.Y.2d 1, 6-7 (1980). The plaintiff does not contend that the answers to any of these questions prevent the court from compelling arbitration in this case. Accordingly, the parties are ordered to submit to arbitration their dispute as it relates to claimed violations of the Encon agreements and this action is stayed with respect to those claims.
The Altadis defendants maintain that this entire action must be stayed because of the arbitration provisions of the Encon agreements. I am not persuaded. Although in his second amended complaint, the plaintiff asserts various contract, tort, statutory and equitable claims against the Altadis defendants, he essentially complains of two distinct courses of action allegedly undertaken by the defendants: (1) that the Altadis defendants wrongfully cooperated and conspired with the Chickoskys to interfere with the operation of Enfield Shade Tobacco in contravention of the Enfield Shade Tobacco member's agreement and to undermine the court's appointment of a receiver to oversee certain transactions by Enfield Shade Tobacco; and (2) that the Altadis defendants wrongfully breached the provisions of and their duties under the Encon member's agreement and joint venture agreement. Only the plaintiffs' Encon claims are governed by the mandatory arbitration provisions of the Encon Agreements as those provisions apply to "any matter arising out of this Agreement or the transactions contemplated hereby." The Enfield Shade Tobacco member's agreement contains no such arbitration provision. The request of the Altadis defendants to compel arbitration and stay those claims of the plaintiff that relate to the Enfield Shade Tobacco agreement is therefore denied.
Kogut contends that his claims against Altadis Shade are not subject to arbitration because Altadis Shade was not a signatory to either the Encon membership agreement or the Encon joint venture agreement. Kogut is asserting claims related to Encon on his own behalf as a member and officer of Enfield Shade Tobacco and on behalf of Enfield Shade Tobacco. Enfield Shade Tobacco was a signatory to both the Encon membership agreement and the Encon joint venture agreement. A signatory is estopped from avoiding arbitration with a nonsignatory "when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed." (Citations omitted.) Choctaw Generation Ltd. v. American Home Assurance Co., 271 F.3d 403, 404 (2nd Cir. 2001). Here, Altadis Shade, a nonsignatory, and Altadis U.S.A., a signatory, are seeking arbitration of a dispute rooted in the obligations of the Encon agreements which contain mandatory arbitration provisions. Moreover, Altadis Shade is merely the alter ego of Altadis U.S.A. as it is wholly owned by Altadis U.S.A. Accordingly, the plaintiffs may not refuse to arbitrate with Altadis Shade the dispute concerning the Encon agreements.
III Prejudgment Attachment
The plaintiff also seeks a prejudgment attachment against the assets of the Altadis defendants. The plaintiff contends that he is entitled to an attachment both with respect to his claims arising out of the Encon agreements and his claims concerning the Enfield Shade Tobacco member's agreement. I am not persuaded that the plaintiff is entitled to an attachment with respect to his Encon claims. Pursuant to New York statutes, with regard to a dispute otherwise subject to arbitration, a court may entertain an application for an order of attachment "only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief." N.Y.C.P.L.R. § 7502(c) (McKinney 2000). The plaintiff has not established that any arbitration award in his favor concerning his Encon claims would be rendered ineffectual without the issuance of an attachment by this court.
With respect to his claims that the Altadis defendants conspired with the Chickoskys to wrongfully interfere with his rights under the Enfield Shade membership agreement and with orders previously issued by the court, the plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. General Statutes § 52-278d(a). See also Three S. Development Co. v. Santore, 193 Conn. 174, 176 (1984). The court shall take into consideration any defenses, counterclaims or set-offs in determining the appropriateness and amount of a prejudgment attachment. § 52-278d(a). "[I]n an application for a prejudgment remedy, the amount of damages need not be determined with mathematical precision. A fair and reasonable estimate of the likely potential damages is sufficient to support the entry of a prejudgment attachment. Nevertheless, the plaintiff bears the burden of presenting evidence which affords a reasonable basis for measuring her loss." (Internal quotation marks and citations omitted.) Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 693 (2002).
The plaintiff has established probable cause to believe that he will prevail in his claims on his own behalf and on behalf of Enfield Shade Tobacco that the Altadis defendants wrongfully interfered with the operation of Enfield Shade Tobacco and that they acted in concert with the Chickoskys to violate this court's orders. The plaintiff seeks a prejudgment attachment in the amount of $1.9 million which is the fair market value of the assets obtained by Altadis U.S.A. from Encon. The plaintiff has not shown however that all of these assets were owned by Enfield Shade Tobacco. To the extent that some of the assets were owned by Enfield Shade Tobacco, it appears that they were purchased with cash advances made by Altadis U.S.A. for which Altadis U.S.A. possesses a valid set-off. The plaintiff also seeks a prejudgment attachment on the grounds that the Chickoskys fraudulently conveyed a mortgage on their property at 128 Moody Road, Enfield, Connecticut to Altadis U.S.A. Assuming that the plaintiff has established probable cause to believe that the mortgage was made with actual intent to hinder, delay or defraud the plaintiff, see General Statutes § 52-552e(a), the plaintiff is not entitled to a prejudgment attachment against Altadis U.S.A. because other remedies such as avoidance of the transfer, see General Statutes § 52-552h, rather than damages, are available to him "[A] damages award against a fraudulent transferee generally is appropriate only where the transferee subsequently disposes of the transferred property and retains the proceeds of that disposition." (Citations omitted.) Robinson v. Coughlin, 266 Conn. 1, 9 (2003). The plaintiff has shown that Enfield Shade Tobacco was damaged by the actions taken by the Altadis defendants, in concert with the Chickoskys, in undermining the receiver and in violation of the court's orders. Much of that damage has been stanched by the orders issued through this memorandum of decision. To the extent any damage has not been stanched or has already occurred, the plaintiff has not offered any evidence of the value of the harm suffered by Enfield Shade Tobacco. For example, while Enfield Shade Tobacco was removed as the lessee in various leases, no evidence was presented of the amount of damages incurred as a result of the loss of those leases. Accordingly, the plaintiff's request for a prejudgment attachment of the assets and property of Altadis U.S.A. and Altadis Shade is hereby denied.
BY THE COURT
Jon M. Alander Judge of the Superior Court