Opinion
No. CV-08-5006795 S (PJR)
March 20, 2009
MEMORANDUM OF DECISION
The plaintiff brings this application for prejudgment remedy seeking to attach to the value of $50,000 property of the defendants, Gomes Industries, LLC d/b/a C S Concrete Construction ("Gomes Industries") and Carlos Gomes, individually, at premises located at 27 Nutmeg Valley Road, Wolcott, Connecticut. The proceeding arises from a purported agreement between the plaintiff and Gomes industries concerning the construction of a concrete foundation at property located at 3 Kiely's Lane, Ansonia, Connecticut. The plaintiff alleges in his complaint in support of his application that he was constructing a residence at that location.
The plaintiff's complaint in support of his application contains nine counts. The first five counts are brought against Gomes Industries. Therein, the plaintiff asserts claims of breach of contract, negligence, misrepresentation, breach of duty of good faith and fair dealing and fraud. In the last four counts, the plaintiff seeks to pierce the corporate veil of Gomes Industries to reach Gomes, individually.
The issue to be decided is whether or not the plaintiff has demonstrated that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than that amount, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff. Resolution of the issue depends on whether the plaintiff, individually, entered into an enforceable agreement with Gomes Industries. Because the court concludes that the plaintiff has failed to establish probable cause that a judgment will be rendered in his favor on the claims in the complaint, the court denies the plaintiff's application for PJR.
The property at issue, 3 Kiely's Lane ("Property"), is owned by The Nocerino Family Limited Partnership. That entity was formed to acquire and develop real property. Nocerino is a general partner in the limited partnership.
Nocerino is experienced in the construction industry, and performed commercial work for Fusco Corporation for approximately ten years. He is the president of Nocerino Construction, Inc. and an employee of the company.
The limited partnership purchased the Property as raw land to build a single-family residence and sell it on speculation. The land had a steep topography that required some planning in order to properly construct the residence.
The plaintiff claims that he, in his individual capacity, entered into an oral agreement with Gomes Industries to perform concrete foundation work for the residence. The court concludes that the plaintiff has failed to establish on a probable cause basis that he, individually, entered into an agreement with Gomes Industries, or the terms of the agreement.
In their memorandum in opposition to the plaintiff's PR application, the defendants claim in a single paragraph that the plaintiff lacks standing and his action should be dismissed. The issue has not been adequately raised or briefed. Therefore, the court will not consider the claim in deciding whether the plaintiff's application for PJR should be granted.
Haynes Materials Company, a supplier of concrete, asked Gomes to contact Nocerino to discuss foundation work to be performed at the Property. The parties met at the Property on January 13, 2008. Gomes, Nocerino and his son, were present at the meeting.
The plaintiff claims that he discussed the specifications that he wanted for the foundation given the challenging topography issues, and presented Gomes with a drawing delineating those figures. The drawing, on drafting paper of Nocerino Construction Inc., shows a concrete wall, fourteen feet high, ten inches thick, and two vertical mats of #5 (5/8") steel rebar spaced twelve inches on center horizontally and vertically. The wall was placed on a one foot by two foot concrete footing. The plaintiff asserts that the rebar grid was to extend all along the front wall and at least eight feet into the side walls. The plaintiff further contends that he informed Gomes at the initial meeting that he wanted 4000 PSI concrete used, and that Gomes agreed that the plaintiff would pay cost for the concrete, seventy-five dollars per yard of concrete for labor and one dollar for each foot of rebar used.
Because of the topography of the land, pump trucks were required to pour the concrete. The plaintiff was responsible for the cost of the trucks. The parties disagreed as to the number of foundation pours that were required. Ultimately, Gomes Industries used three pump trucks for three separate pours. The plaintiff claims that he is only responsible for the cost of two pours because Gomes Industries represented to him that the foundation could be completed in two pours; one for the house foundation and one for the garage foundation.
The plaintiff submitted into evidence three invoices from Haynes to Gomes Industries for to the three concrete pours that took place on the Property. The plaintiff also submitted a certified copy of a mechanic's lien in the amount of $11,549.23 filed by Haynes against the Property. The defendants submitted into evidence an invoice from Gomes Industries to Nocerino Construction that included the cost of the concrete charged by Gomes Industries to Nocerino Construction. Gomes Industries charged 101.67 per yard of concrete, which amounted to $12,505.41 for the total cost. Gomes failed to offer a reasonable explanation as to why he charged Nocerino Construction more than the cost of the concrete, which Haynes charged Gomes Industries the amount of $11,549.23 as reflected in their mechanic's lien. In this regard, Gomes testified that he called Haynes the day that the concrete pours were finished and was informed that $12,505.41 was the amount owed. That amount was inconsistent with the amount reflected in the Haynes invoices.
Gomes claims that he was given a different drawing at the meeting by Nocerino than the one Nocerino put into evidence at the hearing on the application. Gomes put into evidence a drawing that shows a concrete wall, fourteen feet high, ten inches thick and placed on a one-foot by two-foot concrete footing.
The drawing appears to be identical, except the drawing that Gomes claims he was given at the meeting is missing the following information concerning the rebar: "#5 STL. Bar, 2" E.W. on center" and "(2) verticle (sic) STL mats." Also, the drawing shows less rebar in the front foundation wall. The drawing is also on drafting paper of Nocerino Construction Inc.
Gomes further asserts that immediately after the meeting he sat in his vehicle and filled out a form titled "Concrete work sheet" that summarized his understanding of the agreement, including the following information: "Set up Pour Foundation — $75.00 a yard" and "Order #4 Rebar — $1.00 — setup."
Gomes claims that Nocerino agreed to use #4 rebar (1/2") in a single mat with 16" spacing. He further asserts that Nocerino agreed to use 3000 PSI concrete.
Gomes Industries received a letter from Nocerino, dated March 31, 2008 and on the letterhead of "Nocerino Construction Incorporated General Contractors," enclosing a payment in the amount of $15,000.00. The check was drawn on an account of the limited partnership. In the letter, Nocerino requested that Gomes mail to him the invoices from Haynes and further requested that Gomes look at "the front foundation wall for straightness it looks to be very bad about 2" + out in center. This could be a real problem with my floor truss that have (sic) already been purchased." The invoice from Gomes Industries to Nocerino Construction is in the total amount of $26,090.41, leaving an $11,090.41 balance.
Two main issues have arisen concerning the front foundation wall. The wall contains a bow in the middle that bends toward the interior portion of the basement. The plaintiff claims that the bow existed prior to backfilling around the foundation. The plaintiff testified that he waited twenty-eight days after the completion of the pours to backfill the foundation in order to allow the concrete to properly cure. The plaintiff offered the testimony of Gary Lyon. He testified that he stopped by the Property soon after the forms around the foundation were removed and before any backfilling, and noticed the bow in the wall. Gary Lyon has been a concrete foundation mason for approximately thirty-five years and testified that the foundation wall not being properly braced by the forms was the cause of the bow. Gomes claims that the bow occurred sometime after the backfill was completed. Gomes testified that he was at the Property when the backfilling took place and that "big huge slabs of concrete," asphalt and other materials were being used for backfill around the foundation. Gomes contends that the plaintiff backfilled too soon and that this could be a cause of the bow. Also, significant cracks have developed along the front corner of the foundation.
The plaintiff presented the testimony of Bruce Lyon, a contractor with Complex Construction, LLC. Lyon has been in the concrete business for approximately thirty years.
Bruce Lyon inspected the wall, and confirmed the existence of the bow and the cracks. He agreed to repair the wall by removing the fill from around the foundation and pouring a concrete retaining wall to buttress the existing front concrete foundation wall. The work was performed in accordance with an engineered drawing of the retaining wall prepared by Michael Horton Associates, Inc., which drawing is an exhibit. Complex Construction issued an invoice to "Nocerino Family, LP" dated August 18, 2008 in the amount of $12,000. Complex Construction was paid the full amount for their retaining wall work by a check dated September 2, 2008 and drawn on the account of "Nocerino Family, LP." Additionally, the plaintiff claims to have paid the amount of $3,500 to an excavator to remove the backfill in preparation for the retaining wall work.
The plaintiff also presented the testimony of Esmat Makael, a licensed engineer employed by Materials Testing, Inc. Makael performed a reinforcing steel survey on the Property using an R meter to detect metallic elements in hardened concrete. Such a meter is similar to a stud finder used to locate studs in interior walls in that it locates rebar in foundation walls. Concerning the front foundation wall, Makael located 8 vertical rebars spaced approximately 32" on center, and 6 horizontal rebars spaced approximately 36" on center. The plaintiff claims that those findings show that Gomes Industries built a wall different from the one called for on Gomes' own worksheet.
The defendants offered the testimony of Alan Rosa as an expert witness. Rosa is a structural engineer employed by Structural Consulting Services. He rendered the opinion that the foundation wall was overstressed due to the lack of support and excessive backfill. More specifically, Rosa testified that because of the front to back slope of the Property, a retaining wall, as opposed to a typical foundation wall, was required. Rosa described the retaining wall essentially as a nine-foot maximum height wall counterbalanced by a large "heel," or footing, such as the one depicted in the engineered drawing prepared by Michael Horton Associates. The large "heel" acts as a counterbalance to the earth load against the foundation. Also, Rosa stated that such a retaining wall should be further supported at the top by a flooring system installed prior to any backfilling to provide further support for the wall during backfilling. Rosa opined that the foundation wall at issue would have failed solely because of its insufficient footing and lack of flooring support. In this regard, he testified that the bow in the wall did not cause the structural failure of the wall.
"[P]rejudgment remedy proceedings are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication. They are only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action." (Internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., 73 Conn.App. 267, 273, 812 A.2d 1 (2002), rev'd on other grounds, 268 Conn. 264, 842 A.2d 1113 (2004).
"The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiff's judgment, should he obtain one . . . It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover . . . The adjudication made by the court on [an] 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. It is independent of and collateral thereto . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., supra, 73 Conn.App. at 274-75.
"General Statutes § 52-278d(a) provides in relevant part that a hearing on a prejudgment remedy shall be limited to a determination of . . . whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff . . . If the court, upon consideration of the facts before it and taking into account any . . . [defenses] . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court." (Internal quotation marks omitted.) Benton v. Simpson, 78 Conn.App. 746, 750-51, 829 A.2d 68 (2003).
"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 [person] 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 . . ." Id., at 752, 829 A.2d 68.
The plaintiff has failed to demonstrate probable cause that a judgment will be rendered in his favor. More specifically, the plaintiff has failed to demonstrate that he, himself, entered into the agreement with Gomes Industries concerning the concrete work on the property.
It is undisputed that the limited partnership owns the property; that the plaintiff is a partner in the limited partnership; and that the plaintiff is authorized by the limited partnership to pursue the claim. But the evidence adduced at the hearing shows, for purposes of making a probable cause determination, that neither the plaintiff nor the limited partnership entered into the oral agreement at issue with Gomes Industries. Rather, the agreement was between Nocerino Construction and Gomes Industries. The initial meeting was attended by Nocerino and his son, Jeremy, and Gomes. Nocerino is president of Nocerino Construction, a general contractor company, and Jeremy is a construction manager for the company. The reasonable inference is that Nocerino and his son were acting in their capacity as representatives of Nocerino Construction at the meeting. The meeting concerned the construction by a subcontractor, Gomes Industries, of a concrete foundation for a new construction single-family residence. It is common practice in the construction industry for general contractors to employ subcontractors such as Gomes Industries for such jobs. At the meeting, the plaintiff presented Gomes with a sketch or drawing concerning the foundation work on drafting paper of Nocerino Construction. By invoice dated March 12, 2008, Gomes Industries billed an invoice to Nocerino Construction for the concrete work on the Property. The plaintiff forwarded a letter dated March 31, 2008 on Nocerino Construction letterhead to Gomes Industries in which he enclosed a check in the amount of $15,000 drawn on the an account possessed by the limited partnership. The report of Materials Testing dated November 21, 2008 references the client as Nocerino Construction.
In view of the foregoing, the court concludes that there is a bona fide belief in the existence of facts under the law for a cause of action by Nocerino Construction against the defendants and not the plaintiff, individually. Additionally, concerning the last four counts of the plaintiff's complaint, the plaintiff failed to present any evidence to support their claim that the corporate veil of Gomes Industries should be pierced so as to reach Gomes, individually. Therefore, the plaintiff's application for prejudgment remedy is denied.