[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION
Before this court is the plaintiffs prejudgment remedy application. The plaintiff, NFW Associates, claims that it had an agreement with the defendant, Massey Brothers Construction aka Massey Brothers LLC regarding the sale and removal of topsoil. The plaintiff also claims that, pursuant to the agreement, the defendant removed soil from property owned by the plaintiff and sold it. Finally, the plaintiff claims that it was not fully paid for the soil that was removed. The defendant admits to removing and selling topsoil from the plaintiff's property, but disputes that it owes the plaintiff any money. The defendant claims that some of the soil removed from the plaintiffs property was used on another piece of property owned by the plaintiff. The defendant also claims that it did not remove as much topsoil as is claimed by the plaintiff. The defendant maintains that it fully paid for the soil pursuant to the agreement. There is a factual dispute between the parties as to the terms of the oral agreement regarding the price to be paid to the plaintiff for the soil and as to how much soil was removed from plaintiff's property and sold.
Following a hearing at which both parties presented evidence the court finds that the following facts were established. The parties agreed that the defendant would pay the plaintiff $6.00 per cubic yard for the soil it removed. The defendant removed eleven thousand, five hundred and ninety (11,590) cubic yards of soil from the plaintiffs property. The defendant paid to the plaintiff $44,200. Therefore, according to the agreement, the defendant owes to the plaintiff $25,340.00.
The court finds, taking into account the defense raised by the defendant, that there is probable cause that judgment will be rendered for the plaintiff in the amount equal to or greater $25,340.00. Accordingly the court grants the plaintiff's application for prejudgment remedy in the amount of $25,340.00.