Summary
The Vermont Superior Court denied Kingsbury Companies, LLC’s motion for a writ of attachment securing a claimed $31,400 debt for septic-system and leach-field work. The court found that the defendants’ evidence concerning Japanese knotweed allegedly introduced by Kingsbury created a reasonable likelihood that Kingsbury had not fully performed its contractual obligations, defeating the required likelihood of recovery.
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Practice areas
Questions Presented
- Whether Kingsbury established a reasonable likelihood of recovering a judgment sufficient to support a prejudgment writ of attachment under Vermont Rule of Civil Procedure 4.1.
- Whether the evidence of allegedly deficient contractual performance and the resulting Japanese knotweed infestation defeated Kingsbury's showing of a reasonable likelihood of recovery.
- Whether the court needed to decide whether defendants' counterclaim could be offset against Kingsbury's claim when determining the attachment amount.
Holdings
- Kingsbury did not establish a reasonable likelihood that it would recover a judgment in an amount sufficient to support the requested attachment, so the motion for a writ of attachment was denied.
- Evidence that the plaintiff may not have performed the contract in a good and workmanlike manner may defeat the plaintiff's reasonable-likelihood showing for prejudgment attachment.
- The court did not need to decide whether a defendant's counterclaim may be offset against a plaintiff's claim in determining the amount of an attachment because the evidence concerning defendants' defense independently defeated Kingsbury's reasonable-likelihood showing.
Key quotations
“The reasonable likelihood standard requires “a realistic conclusion by the court on the basis of affidavits and other evidence presented at the hearing as to the actual probability of recovery by the plaintiff.”” (Order at 2)
“The overriding point is “to limit prejudgment takings of property to situations where the property taken is in fact likely to be subject to a subsequent judgment.”” (Order at 2)
“in every contract there is an “implied duty to perform with care, skill, reasonable expedience and faithfulness”” (Order at 3)
Factual background
The Goodriches hired Kingsbury Companies, LLC to install a septic system and leach field at their home but withheld payment after the work was completed. They alleged that fill brought onto the property by Kingsbury introduced Japanese knotweed, a destructive weed requiring extensive and expensive eradication. At the attachment hearing, the evidence indicated that Kingsbury performed the physical excavation and construction work but may not have performed it appropriately, adequately, or consistently with the parties' contractual obligations.
Procedural history
Kingsbury Companies, LLC filed an action for breach of contract and violation of Vermont's Prompt Pay Act after Winton and Valerie Goodrich withheld payment for septic-system and leach-field work. With the complaint, Kingsbury sought a writ of attachment against the Goodriches' real property. Following a March 13, 2023 hearing, the court concluded that the evidence did not establish a reasonable likelihood that Kingsbury would recover judgment because the evidence indicated that Kingsbury's performance may have been deficient and may have caused a Japanese knotweed infestation.