I. DAVID MARDER ASSOCIATES, LLC v. KAREN VAICIULIS.

2008 Ct. Sup. 18745
No. TTD CV 08-5003526-SConnecticut Superior Court Judicial District of Tolland at Rockville
December 3, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

RULING ON PLAINTIFF’S APPLICATION FOR PREJUDGMENT REMEDY
ROBERT F. VACCHELLI, Judge, Superior Court.

This case is an action by the plaintiff, I. David Marder Associates, LLC, to collect a debt due under a retainer agreement for attorneys fees and costs. The defendant is Karen Vaiciulis (formerly Karen Burton). Attorney Marder represented Ms. Vaiciulis in her divorce. Attorney Marder has made an application for prejudgment remedy seeking to attach real property owned by the defendant in the amount of $7,500.00. For the following reasons, the application is granted.

I
Under General Statutes § 52-278d(a), the court must make four determinations on an application for prejudgment remedy: (1) whether there is probable cause that a judgment will be rendered for the plaintiff in an amount equal to or greater than the amount of the prejudgment remedy requested, taking into account all defenses, counterclaims or set-offs; (2) whether the defendant has adequate insurance to pay any judgment that may be rendered; (3) whether the property is exempt from execution; and, (4) whether to require a bond. On the probable cause issue, probable cause means a bona fide belief in facts essential under the law for the action, and such as would lead a reasonably prudent person to entertain such belief. See, Dufraine v. Commission on Human Rights and Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996). “It is firmly established that the trial court’s hearing in probable cause is not intended 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 . . . The court’s role in such a hearing is to determine probable success by weighing probabilities . . .” (Internal quotation marks omitted; citations omitted.) Fischel v. TKPK, Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994).

II CT Page 18746
The court heard this matter on December 1, 2008. Attorney Marder represented his law firm. The defendant was self-represented. The court admitted into evidence a copy of the original retainer agreement; billings by the plaintiff with notations reflecting collection efforts; and a copy of a transcript dated January 26, 2006, from the defendant’s divorce proceedings reflecting that the divorce was resolved by a settlement agreement in family court on that date. The court also accepted into evidence a second copy of the retainer agreement with notations; an itemized billing statement dated November 10, 2004, reflecting a first payment of $4,000.00 paid on October 18, 2004; a Quitclaim Deed dated June 24, 2005, Release of Lis Pendens dated February 21, 2006, and a Certificate of Change of Name dated August 10, 2007, concerning defendant’s real estate; correspondence dated September 2008, and September 2007, concerning payment disagreements; a listing of payments by the defendant to the plaintiff with entries from April 2005, to November 2007, compiled by the defendant; a copy of plaintiff’s October 10, 2008, and November 10, 2008, billing statements, and a copy of defendant’s response to plaintiff’s offer of proof for the instant proceedings. The court also heard oral argument from the parties.

The plaintiff is seeking a prejudgment remedy to attach real property of the defendant, identified as 75 Rockwell Road, Stafford, CT, described in Exhibit A to plaintiff’s application, on a proposed complaint for breach of contract. “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of agreement by the other party and damages.” (Internal quotation marks omitted; citation omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004); accord, 16 Conn. Practice Series, Connecticut Elements of an Action (2007-08 Ed.) § 4:1.

That the defendant owes the plaintiff money is not disputed. The court finds that she signed a retainer agreement with Attorney Marder’s firm on October 6, 2004, in consideration for his services defending her in the dissolution of marriage action against her pending in Tolland Superior Court. She agreed to pay for his professional services at a rate of $200 per hour for court and non-court time, plus $100 per hour for certain travel time, and $300 per hour for after-hours work, plus other costs and out-of-pocket expenses. She agreed that “[a]ll balances would be due and paid in full within 30 days after completion of the services contracted or cessation of representation.” Contract, p. 2. She agreed to pay interest at 12 percent per annum on any unpaid overdue balance, and she agreed to pay costs of collection, including reasonable attorneys fees and court costs. Id. Services commenced on October 6, 2004, and were concluded by July 25, 2006. As of the date of hearing, CT Page 18747 the plaintiff had a balance due of $5,037.20 on the November 10, 2008, billing statement. The rate and time expended appear to be reasonable, and the defendant does not dispute the accuracy of the current balance. Plaintiff seeks a prejudgment remedy in the amount of $7,500.00 to cover an expected judgment in its favor.

The defendant argues that she should not be required to pay the full amount now, and that the prejudgment remedy should not be allowed. She argues that the balance should be reduced to $1,000.00, payable to the plaintiff in one month. She urges several grounds in her defense. First, she argues that the plaintiff failed to provide her with a correct Release of a Lis Pendens, and that she was required by the Town Clerk to file a Certificate of Change of Name to correct the defect, costing her $43.00 for the recording fee. The evidence shows that the Lis Pendens was in her married name, Karen Burton. The Release was in that same name. In the divorce, the defendant changed her name from Karen Burton back to Karen Vaiciulis. The Certificate of Change of Name was not required to correct a mistake by her attorney. There was no mistake. The Certificate was required to inform the land records of her new name after the divorce so as to avoid future confusion. General Statutes § 47-12 (certificate to be filed within sixty days after name change). It is not probable that she will prevail on her defense on this point.

Next, she argues that the retainer agreement was fraudulent because it stated that she was required to pay $5,000.00 by October 8, 2004, when, in fact, the attorney accepted $4,000.00. To prove fraud, defendant must show: (1) a false representation was made by the plaintiff as a statement of fact; (2) the statement was untrue and known to be so by the plaintiff; (3) the statement was made with intent of inducing reliance thereon; and (4) the defendant relied on the statement to her detriment. See Nazami v. Patrons Mut. Ins. Co., 280 Conn. 619, 638, 910 A.2d 209
(2006). Inasmuch as the lower payment helped her, and since the billing statements accurately reflect that she paid only $4,000.00, it is not probable that she will prevail on a claim that she was defrauded.

She also complains that the attorney advised her that if she chose to go to trial rather than settle, he would need to bill her for the trial time with no guarantee of a better result. She further complains that the attorney kept finding legal problems that would cause her to pay more in attorneys fees if she chose to address those other problems. She considers this legal bullying. Nevertheless, she agreed to settle rather than go to trial, and she did not engage him to solve other problems. At her divorce hearing, when asked if she felt the agreement was fair and equitable and if she was satisfied with the representation she received from Attorney Marder, she answered, “Yes.” Transcript, pp. 2, 3. She also CT Page 18748 argues that there were errors in the billings. But, the correspondence indicates that the errors were corrected. Even giving the defendant the leniency in advocacy specially afforded self-represented litigants, the court finds no viable grounds for defense on these points.

Finally, she argues that she should not be held responsible for the full amount now because all during the divorce proceedings, and afterwards, she informed the attorney that she could not afford to pay him, and he kept assuring her not to worry, that they would work something out. Since the divorce, her economic circumstances have worsened, not improved, as has her ability to pay the outstanding debt. However, she has continued to make payments when she feels she can, and in the amounts she feels she can afford, from time to time. Indeed, she points out that she made 15 payments in a 20-month time period in 2006-07. In that period, her average payment was slightly less than $45.00. She agrees that alternative payment schedules were discussed, but the parties never came to a specific agreement as to how much she should pay or when. This information suggests the defense of Accord and Satisfaction. A critical element to defense of Accord and Satisfaction, however, is proof of new consideration and a meeting of the minds on the new terms. Our Appellate Court has describe these requirements as follows:

“An accord is a contract between creditor and debtor for the settlement of a claim by some performance other than that which is due. Satisfaction takes place when the accord is executed.” W.H. McCune, Inc. v. Revzon, 151 Conn. 107, 109, 193 A.2d 601 (1963). The defendant does not claim that her debt has been paid in full, but rather, has alleged an “accord executory.” Id. The defense of accord requires that the defendant allege and prove “a new agreement with a new consideration.” Crucible Steel Co. v. Premier Mfg. Co., 94 Conn. 652, 656, 110 A. 52 (1920). “There must be a meeting of the minds.” (Emphasis added.) Id.
In this case, while both parties agree that there was an accord between them, they dispute the terms of that accord. We are not persuaded by the defendant’s argument that this dispute is irrelevant. Without a mutual assent, or “meeting of the minds,” there could be no accord. See Crucible Steel Co. v. Premier Mfr. Co., supra.

Gillis v. Gillis, 21 Conn.App. 549, 552, 575 A.2d 230, cert. denied, CT Page 18749 215 Conn. 815, 576 A.2d 544 (1990).

Thus, the parties in the instant case were free to change the terms of the retainer agreement and resolve the debt, even orally. Vega v. Mirsky, Superior Court, judicial district of Fairfield, Docket No. CV 99-0359479 (October 16, 2003, Stevens, J.). However, as in the Gillis case, the defendant has failed, at this stage at least, to show that new consideration was provided to change the terms of the agreement, and she has failed to show that the parties agreed on the new terms. Notations on the various billing statements shared between the parties indicate that some negotiation was going on, but there is no proof that an agreement was ever reached substituting a new agreement for the retainer agreement.

In light of the above, the court concludes that it is probable that the plaintiff will prevail in its collection action in this case, and, considering all defenses, counterclaims or set-offs, the defendant will fail. It further finds that it is probable that judgment will be rendered for the plaintiff in the amount equal to the current debt. As of the November 10, 2008, statement, that amount was $5,037.20. Considering the fact that the interest rate will continue to accumulate and that there will be costs incurred to file and pursue the collection action, the court will grant the request for a prejudgment remedy in the amount of $7,500.00 consisting of the expected principal, interest and costs of collection. The amount does not include anticipated attorneys fees, even though it was allowed for by the retainer agreement, because Attorney Marder is representing his own law firm in this collection action. Self-represented persons are not entitled to attorneys fees, even if they are attorneys. See Jones v. Ippoliti, 52 Conn.App. 199, 208-12, 727 A.2d 713 (1999). In sum, plaintiff may attach the defendant’s real property known as 75 Rockwell Road, Stafford, CT, described in Exhibit A to plaintiff’s application for prejudgment remedy, up to the sum of $7,500.00.

III
Accordingly, the court finds that there is probable cause that judgment will be rendered for the plaintiff in the amount of $7,500.00, taking into account all defenses, counterclaims or set-offs. There was no evidence of property exempt from execution, nor was there evidence of need for bond. Plaintiff’s application for prejudgment attachment of defendant’s property known as 75 Rockwell Road, Stafford, CT, described in Exhibit A to plaintiff’s application for prejudgment remedy is granted, up to $7,500.00. CT Page 18750