Opinion
No. PJR-FST-CV 07 5004857 S
January 11, 2008
MEMORANDUM OF DECISION RE MOTION FOR PREJUDGMENT REMEDY
This case comes to this court as a prejudgment remedy. The standard of review is undisputed. The plaintiff must establish "that there is probable cause that a judgment in the amount of the prejudgment remedy sought . . . taking into account any known defenses, counterclaims or set-offs will be rendered in the matter in favor of the applicant."
This action arises out of a dispute over the construction of certain renovations and improvements for the personal residence of the plaintiff in New Canaan. The parties were unable to work out their dispute as to payments and construction. The plaintiff claims that the defendant, Kyle Whitteaker, is personally responsible for the damages claim in this matter. The defendants claim that the defendant, Kyle Whitteaker, is not personally responsible; that in fact he was a de facto corporation thereby precluding the plaintiff from seeking damages personally against Kyle Whitteaker.
The court has considered all the evidence in this case and the briefs of the parties in rendering this decision.
Connecticut General Statutes § 33-638 provides essentially as follows: "All persons purporting to act on behalf of a corporation, knowing there was no incorporation . . . are jointly and severally liable for all liabilities created while so acting . . ." The plaintiff has failed to prove the knowing aspect of the statute. The court finds that the defendant operated as an officer of a de facto corporation and is entitled to corporate protection.
In DiFrancesco v. Kennedy, 114 Conn. 681, 687-88 (1932), the court articulated that: "A de facto corporation is an association which actually exists for all practical purposes as a corporate body, but which, because of failure to comply with some provision of the law, has no legal right to corporate existence as against a direct attack by the state." One who has dealt with a de facto corporation is estopped to deny its corporate existence. The affidavit in support of the supplemental objection dated November 12, 2007 signed by Kyle Whitteaker sets forth sufficient facts to establish that in fact this was a de facto corporation and that he did not know there was no incorporation.
Accordingly, the court finds that there is not probable cause to sustain the validity of the claim against the defendant, Kyle Whitteaker individually. The prejudgment remedy is denied.