Opinion
DBDCV196029586S
10-21-2019
Greg YOUNG v. Michael KERSLAKE et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., Judge.
On or about October 26, 2016, the plaintiff Greg Young ("plaintiff"), Trustee of the Gregory S. Young Revocable Trust, as landlord, and the defendants Michael Kerslake and Stacy Kerslake (the "defendants") as tenants, entered into a written lease agreement for the use and occupancy of certain premises located at 4 Longwood Drive, Redding, Connecticut (the "Premises"). The lease term began on November 1, 2016 and was to on October 31, 2019. The defendants were to pay monthly rent of $7,250 due on the first day of each month, and a security deposit of $14,500. The defendants have failed to make the required monthly payment from July 2018 to the present day. The defendant paid $2,000 toward the June 2018 rent. The lease provides for a late fee of four percent (4%) of the monthly rent if the rent is not received by the first of each month. The lease provides that the defendants shall be responsible for all expenses incurred by the landlord to obtain possession, including attorneys fees, court costs, and the cost of any appearance by landlord’s attorney at a stay hearing, as permitted by law. As of the date of the hearing on October 7, 2019, the plaintiff is intending on proceeding against the defendant Michael Kerslake only, which relates to counts one and three of the amended complaint dated February 13, 2019, and has presented evidence, including plaintiff’s exhibit 3, for rental amount due and payable, late fees of 4 percent pursuant to paragraph 26 of the Connecticut Plaint Language Lease between the parties dated October 26, 2016, marked as plaintiff’s exhibit 1, and 6 percent interest on money due and payable, that the total due plaintiff for rent and late fees amounts to $99,188.80. On October 15, 2019 the court concluded the hearing and reviewed plaintiff’s affidavit for attorneys fees, dated October 7, 2019 requesting payment of attorneys fees in the amount of $3,979.50.
LEGAL STANDARD
"The purpose of a 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." (Internal quotation marks omitted.) Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn.App. 638, 646-47, 922 A.2d 1131 (2007).
"[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 the adjudication of the merits of that action ... This limited evidentiary proceeding contrasts sharply with, for example, the detailed and substantive arguments and conclusions that must be addressed in a motion to strike." (Citation omitted; internal quotation marks omitted). Marlin Broadcasting LLC v. Law Office of Kent Avery, LLC, supra, 101 Conn.App. 646, 922 A.2d 1131.
" ‘Prejudgment remedy’ means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of his property prior to final judgment but shall not include a temporary restraining order." General Statutes § 52-278a(d). Prejudgment remedies are statutory devices designed to bring the defendant’s assets into custody as security for the satisfaction of the judgment the plaintiff may recover. Pursuant to § 52-278d(a), the prejudgment remedy hearing is limited to a determination of: "(1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff."
The role of the court in considering an award of a prejudgment remedy is well established. "A prejudgment remedy is available upon a finding by the court that 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, setoffs will be rendered in the matter in favor of the plaintiff ..." Kendall v. Amster, 108 Conn.App. 319, 948 A.2d 1041 (2008).
"[A] hearing in probable cause is not intended to be a full scale trial on the merits of the [moving party’s] claim. The [moving party] does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim ... The court’s role in such a hearing is to determine probable success by weighing probabilities ... 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 ... Probable Cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." Spilke v. Spilke, 116 Conn.App. 590, 593 n.6, 976 A.2d 69 (2009). "Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 112 Conn.App. 315, 319, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009); see 36 DeForest Avenue, LLC v. Creadore, 99 Conn.App. 690, 698, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007) (stating that the burden of proof at a probable cause hearing is a low one). "At a probable cause hearing on a prejudgment remedy, a trial court may properly consider all evidence presented, including testimony of witnesses, documentary evidence, and affidavits." Fleet Bank of Connecticut v. Dowling, 28 Conn.App. 221, 610 A.2d 707, cert. granted on other grounds, 223 Conn. 921, 614 A.2d 821 (1992). The court must take into account any counterclaims or defenses to the action in assessing the claim for a prejudgment remedy. In Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 690, 795 A.2d 1274 (2002) the court found that the statute for a prejudgment remedy includes the language "taking into account any defenses, counterclaims or setoffs ..." includes these defenses and counterclaims in a hearing for a prejudgment remedy.
ANALYSIS
With this standard in mind, and for the purposes of this application, the court finds that the plaintiff has satisfied his burden as outlined in the legal standard section above, in relation to the application of a prejudgment remedy. However, in considering the prejudgment remedy the court would have taken into account any defenses and possible counterclaim by the defendant. However, the defendant Michael Kerslake, despite being served with a subpoena duces tecum to appear and produce documents, did not appear, and neither did his attorney at the October 7, 2019 short calendar hearing. As such, the defendant did not offer any defenses, counterclaims or setoffs to find that there was not a breach of the lease agreement by the defendants or any mitigation. In fact, quite to the contrary, the defendant Michael Kerslake, through his attorney, filed an answer, dated October 4, 2019 admitting to all allegations in counts one and three. The defendant Michael Kerslake did appear at the October 15, 2019 session, without his attorney, however, after speaking with his attorney prior to the short calendar session, he filed his self-represent appearance in lieu of his attorney, and did speak with plaintiff’s counsel prior to the short calendar hearing to discuss the subpoena duces tecum served on him by plaintiff’s counsel. After being canvassed by the court, defendant Michael Kerslake did indicate that he would answer all plaintiff counsel’s question that pertain to the requested items of the subpoena duces tecum. He also admitted to the court that he does owe the damages requested by the plaintiff. Plaintiff’s counsel did request that the same evidence be admitted against defendant Stacy Kerslake for use and occupancy payments in the amount calculated in the plaintiff’s exhibits. Based on the foregoing, the plaintiff is likely to receive an award for the amount as calculated in the plaintiff’s exhibits against both defendant Michael Kerslake and defendant Stacy Kerslake. With this standard in mind, and for the purposes of this application, the court finds that the plaintiff has satisfied his burden in relation to the application for a prejudgment remedy. The plaintiff has also requested pursuant to the lease agreement inclusion of attorneys fees in the prejudgment remedy. At the hearing, the plaintiff indicated that he would provide to the court an affidavit as to the calculation of attorneys fees requested. The plaintiff submitted an affidavit of attorneys fees dated October 7, 2019 in the amount of $3,979.50. Attached to the affidavit of attorneys fees was a detailed billing statements with dates of service, description of service, hours performed, dollar amount for task, and attorney performing the service. The court at this time finds that the requested fee is reasonable with slight modification. Plaintiff is requesting reimbursement for 11.37 hours at $350.00 per hour. On that basis, the court will include within the prejudgment remedy, the sum for attorneys fees as requested.
CONCLUSION
Therefore, based upon the arguments presented at the hearing, the plaintiff has established to the court’s satisfaction the probability of a judgment in his favor in the amount of $99,188.80 for damages and $3,979.50 for attorneys fees, for a total of $103,168.30. The plaintiff can secure such a sum from the property of the defendant Michael Kerslake and defendant Stacy Kerslake, including, but not limited, to all real estate, personal property, bank accounts, or investment accounts, joint and severally.