28 Conn. App. 221 | Conn. App. Ct. | 1992
These two cases involve claims by the plaintiff Fleet Bank of Connecticut that it is entitled
The pertinent facts are as follows. On October 31, 1989, and on or about November 2,1989, the plaintiff issued a letter of credit to each of the defendants for the benefit of a third party, Intercontinental Monetary Corporation (IMC), in the amount of $525,000 each.
On August 9,1990, IMC made demand for $525,000 under each letter of credit. The plaintiff honored these demands on August 14,1990, paying IMC $525,000 on behalf of each defendant. Despite demand by the plaintiff, the defendants have refused to reimburse the plaintiff pursuant to the reimbursement agreement.
Our scope of review of a trial court’s decision to grant or to deny a prejudgment remedy is limited. “Pursuant to our prejudgment remedy statutes; General Statutes § 52-278a et seq.; the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to
“We reiterate ‘the limited role that our case law assigns to appellate review of a trial court’s broad discretion to deny or to grant a prejudgment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.’ Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991); see also Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479-80, 525 A.2d 935 (1987); Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985).” Bank of Boston Connecticut v. Schlesinger, supra, 156-57.
The defendants’ claim that the trial court’s finding of probable cause was improper because the defendants did not cause the plaintiff to issue the letters of credit and that the letters of credit were not made at the request of the defendants.
“The law that governs letters of credit in this state is contained in article 5 of the Uniform Commercial Code, General Statutes §§ 42a-5-101 through 42a-5-117. A letter of credit, under the code, is an engagement by a bank or other person, made at the request of a
The defendants assert that there was no evidence of the second commitment, the agreement between the plaintiff and the defendants, pursuant to which the plaintiff was to issue the letters of credit. Without such an agreement between the customer and the issuer, a valid letter of credit could not exist, and the trial court’s finding of probable cause would be clear error.
At a probable cause hearing on a prejudgment remedy, a trial court may properly consider all evidence presented, including testimony of witnesses, documentary evidence, and affidavits. Self-Service Sales Corporation v. Heinz, 1 Conn. App. 188, 192, 470 A.2d 701 (1984). Notwithstanding the defendants’ assertions to the contrary, our review of the record shows that the plaintiff did present evidence at the hearing that indicated that an agreement existed between the plaintiff and the defendants and that the defendants had requested the letters of credit. First, an officer of the plaintiff who was responsible for the defendants’ accounts testified that the letters of credit were “issued for the account of Dowling.” Second, the letters of credit state that they were issued for the account of the defendants. Third, the plaintiff paid $525,000 pursuant to each letter of credit. Fourth, the plaintiff brought suit to obtain reimbursement from the defend
The judgments are affirmed.
In this opinion the other judges concurred.
The trial court also treated both cases in an identical fashion.
The letters of credit were issued by United Bank and Trust Company, now known as Fleet Bank of Connecticut.