Opinion
No. HHD CV 084035501
October 22, 2008
MEMORANDUM OF DECISION RE PREJUDGMENT REMEDY APPLICATION (#140)
The present case is an action to enforce a foreign judgment by the plaintiff, Beam Team, Inc., against the defendant, Stevenson Group Corporation. On May 22, 2007, a Georgia superior court rendered a default judgment in favor of the plaintiff, awarding the plaintiff $62,527.50 on its breach of contract action. Presently before this court is the defendant's application for a prejudgment remedy (application) in the amount of $67,599.13, which it filed on May 12, 2008 along with an affidavit of debt (previously filed on March 5, 2008 and incorporated by reference) and a motion to disclose assets.
On May 13, 2008, the defendant objected to the application for prejudgment remedy on the ground that the plaintiff's application did not comply with the procedural requirements of General Statutes § 52-278c. Specifically, the defendant argues that plaintiff, in derogation of § 52-278c, did not file an application for prejudgment remedy, an order for hearing, a proposed order granting relief containing a description of the property, and the appropriate standard of probable cause.
Section 52-278c(a) requires the applicant to submit the following: "(1) An application, directed to the Superior Court . . . (2) An affidavit . . . setting forth a statement of facts sufficient to show that there is probable cause that a judgment . . . will be rendered . . . in favor of the plaintiff . . . (3) A form of order that a hearing be held . . . and a notice of such hearing complying with subsection (e) of this section . . . (4) A form of summons directed to a proper officer commanding him to serve upon the defendant . . . the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing . . ."
On July 14, 2008, this court held a hearing in conjunction with the application for prejudgment remedy. The only admitted evidence presented at the hearing by the plaintiff was the certified copy of the Georgia judgment. The defendant appeared at the hearing but did not present any evidence. The defendant argued that the plaintiff had the burden of proving that the Georgia court had personal jurisdiction over the defendant.
"A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . . Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false . . . Under this standard, 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." (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2008).
"Section 52-278d(a) clearly mandates that, in seeking a prejudgment remedy, a plaintiff must show probable cause . . ." Id., 147. "The defendant has the burden of proof to show defenses, counterclaims or set-offs, thus reducing the amount of the prejudgment remedy." Charlie Brown, Inc. v. Northeast Hotel Associates, Inc., Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. CV 9410-3030, SNBR467 (December 3, 1996, Tierney, J.); see also Chaspek Mfg. Corp. v. Tandet, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. CV 9309-2714, SNBR-429A (June 16, 1995, Tierney, J.).
"The United States Supreme Court has consistently held . . . that the judgment of another state must be presumed valid, and the burden of proving a lack of jurisdiction rests heavily upon the assailant . . . [T]he party attacking the judgment bears the burden of proof regardless of whether the judgment at issue was rendered after a full trial on the merits or after an ex parte proceeding . . . [T]he defendants must establish that the [foreign] judgment is void, not merely voidable . . . Broadly stated, this would require proof of the lack of a legally organized court or tribunal; lack of jurisdiction over the subject matter, the parties, or both; or want of power to grant the relief contained in the judgment." (Citations omitted; internal quotation marks omitted.) J. Corda Construction., Inc. v. Zaleski Corp., 98 Conn.App. 518, 523, 911 A.2d 309 (2006); see also Seaboard Surety Co. v. Waterbury, 38 Conn.Sup. 468, 472, 451 A.2d 291 (1982) ("[An] independent action on the foreign judgment allows the debtor to attack collaterally the foreign judgment by establishing facts that would render the foreign judgment void").
The plaintiff's submission of a certified copy of the foreign judgment is sufficient by itself to establish probable cause. The defendant had the burden of proving that the Georgia court lacked personal jurisdiction but submitted no evidence at the hearing. Where the defendant submits no evidence that the foreign court lacked jurisdiction, evidence of the foreign court's judgment is sufficient to establish probable cause for a prejudgment remedy. Yazoo Mfg Co., Inc. v. Ellis, Superior Court, judicial district of Danbury, Docket No. 321020 (November 14, 1995, Stodolink, J.) [ 15 Conn. L. Rptr. 322].
The defendant's procedural objections to the plaintiff's application have no merit. The plaintiff did file the appropriate forms for a prejudgment remedy application as required by General Statutes §§ 52-278c and 52-278h, namely, an application for prejudgment remedy, an affidavit setting forth facts that show probable cause and form JD-CV-53, which includes the notice to the defendant required by § 52-278c(e). Even if the defendant's application did technically violate § 52-278c, the plaintiff's argument would fail because the defendant has not shown that it was prejudiced. See Spencer v. Star Steel Structures, Inc., 96 Conn.App. 142, 154-55, 900 A.2d 42 (2006) (failure to file a timely notice in accordance with General Statutes § 52-278c(e) does not prevent the granting of a prejudgment remedy when the defendant cannot show prejudice). As in Spencer, the defendant received notice of the hearing beforehand, did not show any practical prejudice arising from any deficiencies in the paperwork and participated in the hearing. Id. Indeed, in this case, more than two months elapsed between the filing of the application and the hearing.
Section 52-278h directs that the prejudgment remedy "forms and procedures shall be adapted accordingly" when the application is filed after the plaintiff has commenced its action, which is procedural posture of the present application.
For the foregoing reasons, the plaintiff's application for a prejudgment remedy is granted in the amount of $62,527.50. Plaintiff may attach sufficient property of the defendant to secure such sum.