DAN SHABAN, J.
Plaintiffs seek an attachment of the real property of the defendant in the amount of $1,700,000 relative to their claims of breach of contract and violation of the Connecticut Unfair Trade Practices Act (General Statutes §§ 42-110a et seq.). A hearing was held before the court on September 29, 2008 during which the plaintiffs submitted testimony and documentary evidence on the issues. The defendant appeared through counsel but was not present to put forth any direct evidence or testimony.
In order to obtain an attachment, a party must show probable cause for its issuance. Probable cause has been defined as a bona fide belief in facts essential under the law for the action and such as would lead a reasonable, prudent person to entertain such belief. Dufraine v. Commission on Human Rights Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996).
Probable cause is a flexible common sense standard . . . It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act.
Id.
In considering the issue, it must be found that probable cause exists as to both liability and damages. Ledgebrook v. Condominium Ass'n., Inc. v. Lusk Corp., 172 Conn. 577, 579, 376 A.2d 60 (1977). It is not necessary to prove the case by a preponderance of the evidence at the probable cause hearing. Moreover, such a hearing is not a full hearing on the merits, but defenses, counterclaims and setoffs must be considered. See Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 692, 795 A.2d 1274 (2002). CT Page 15811
At the hearing the plaintiffs presented evidence that a contract had been entered into by the parties which called for the plaintiffs to purchase a newly constructed home on property at 8 Belden Hill Rd., Brookfield, Connecticut for the amount of $1,450,000. (Plaintiffs' Exhibit 4.) Although reference is made in the contract to it being agreed upon in March 2005, there is no specific date identifying when it was actually signed. The credible testimony of the plaintiff Brian Crotty allows the court to infer that the contract was signed by all the parties sometime shortly before March 31, 2005. This is further supported by the March 31, 2005 letter of plaintiffs' counsel at the time hand delivering to the defendant's counsel the "fully executed contract" relative to the transaction. (Plaintiffs' Exhibit 4.) Under paragraph 14 of that contract, the parties had agreed that the defendant (seller) had an obligation to purchase the property back from the plaintiffs (buyer) under the following circumstances: "in the event Buyer provides written documentation from Buyer's employer of Buyer's employment relocation to a place in excess of 45 miles from the property described on Schedule A during a period of time ending no later than three (3) years from the date of closing, time being of the essence, upon sixty (60) days notice (sic) written notice from the Buyer, Seller will repurchase the premises described herein for a price of ONE MILLION SIX HUNDRED THOUSAND ($1,600,000.00) DOLLARS . . . After the first year, for any reason whatsoever should the Buyer decide to sell, the Seller shall be obligated to purchase for the price set forth herein." On October 21, 2005 the parties closed the transaction and the plaintiffs acquired title to the property. (Plaintiffs' Exhibits 1 and 2.) Thereafter, by letter of May 27, 2008 through their counsel, the plaintiffs provided notice to the defendant of their intent to exercise their right under paragraph 14 of the contract to have the defendant repurchase the property. (Plaintiffs' Exhibit 3.)
The court finds credible the evidence offered by the plaintiffs that there existed a binding agreement between the parties and that the plaintiffs exercised their rights under paragraph 14 of the contract consistent with the provisions thereof. There was sufficient evidence to establish for the purposes of this hearing that the defendant failed to comply with its obligations under that provision of the contract regarding the repurchase of the property for $1,600,000.
Whereas, after due hearing at which the plaintiffs and defendant appeared and were fully heard, it is found that there is probable cause to sustain the validity of the plaintiffs' claims and that the application should be granted. Therefore, it is ordered that the plaintiffs may attach to the value of $1,700,000 lots 5, 6, 7, 8, 9, 10, 11 and 12 CT Page 15812 constituting a portion of the real estate of the defendant which is more particularly described as the "schedules of real property" in the plaintiffs' application, and as more specifically described in "Schedule A" appended hereto.
SCHEDULE "A"
All those certain pieces or parcels of land, with all the improvements thereon, situated in the Town of Brookfield, County of Fairfield and State of Connecticut being shown as Lots 5, 6, 7, 8, 9, 10, 11 and 12 on a certain map entitled "TOWN OF BROOKFIELD FAIRFIELD COUNTY, CONN. FINAL SUBDIVISION WHISPERING GLEN Date: August 7, 2002 Last revised 12-20-02 Scale: 1"=100', which map is recorded in the Brookfield Town Clerk's office as Map No. 893.
Being a portion of the premises conveyed to Tuccio Development, Inc. by Craig L. Froehlich by Warranty Deed dated April 28, 2004 and recorded April 28, 2004 in Volume 481, Page 197 of the Brookfield Land Records.
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