Cottman Transmission Sys. v. Hocap, No. Cv98 35 19 23 S (Jun. 5, 1998)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: APPLICATION FOR PREJUDGMENT REMEDY Probable cause is found to secure the sum of $65,000.00.

The issues that the defendant raises in its brief dated April 27, 1998, were previously litigated by the parties before Judge Rush. The principles of collateral estoppel or claim preclusion apply.

The defendant raises an issue that was not previously litigated. The defendant claims that it has a counterclaim for $67,628.00 for expenses it incurred in removing environmental hazards from the premises. While the defendant has shown that it incurred costs for cleaning the premises, it has not shown the plaintiff is liable for the clean-up expenses.

The defendant's premises had been occupied by a corporation that had been a franchisee of the plaintiff. The franchisee operated a transmission repair business. The franchisee abandoned or otherwise left the premises. The plaintiff had a right under a CT Page 7235 lease agreement to obtain an assignment of the franchisee's lease and operate the transmission service business. Before the plaintiff could exercise its right to take over the lease, the defendant entered the premises. The plaintiff seeks damages from the defendant for breach of the agreement. In a previous hearing, this court (Rush, J.) found probable cause for the plaintiff's claim in the amount of $65,000.00.

At the request of the defendant, ECG, Inc. removed items that had been used in the transmission repair business. ECG, Inc. also removed hazardous substances. In opposing the prejudgment remedy, the defendant asserts that it has the right to recover the removal costs from the plaintiff by way of counterclaim.

The plaintiff did not place the hazardous material on the premises. It did not occupy the premises. Had the plaintiff occupied the premises, it would have needed the items that the defendant removed. The defendant has not shown what portion of ECG, Inc.'s work would have been necessary in the event the premises continued to be used for a transmission repair business.

A prejudgment remedy in the amount of $65,000.00 may issue.

THIM, JUDGE