Opinion
No. CVH-8136
July 14, 2011
MEMORANDUM OF DECISION RECONSIDERATION OF ORDER FOR PREJUDGMENT REMEDY
This is an action brought by the plaintiff seeking money damages from the defendant in connection with a senior living facility. On 4/6/11, the court conducted a hearing on the plaintiff's application for a prejudgment remedy. On May 13, 2011, the court granted the plaintiff's motion and issued an order for prejudgment remedy. The order included attaching funds, ostensibly belonging to the defendant, being held in the Meriden Superior Court that are the proceeds of a foreclosure sale in the matter of City of Meriden v. Marsha Gracie, Docket No. NNH-CV-08-5003248S.
Connecticut General Statutes § 52-356b "does not explicitly permit a property execution [or turnover order] pursuant to a money judgment to be served on the state or enforced against property of the judgment debtor in possession of the state." Herzig v. Horrigan, 34 Conn.App. 816, 821 (1994). "The general and longstanding rule is that property held in the government's custody cannot be attached or garnished." Stillman v. Isham, 11 Conn. 124, 127 (1835).
"The doctrine of sovereign immunity in Connecticut . . . encompasses attachments served on an officer of the state and does not limit the application of the doctrine of sovereign immunity to suits against the state involving the state's pecuniary interest in the outcome." Herzig v. Horrigan, supra, 821; Kosloski v. Greenwoods Associates, LLC, 2010 Ct.Sup. 1577, 49 CLR 123 (December 21, 2009, Shaban, J.).
A court does possess the authority, however, to issue an order for a court clerk to hold funds in its possession. An order to hold funds without an order to disburse, distribute or turn over funds is not a garnishment and is, therefore, permissible pursuant to Connecticut General Statutes § 52-356b. Tadros v. Tripodi, 87 Conn.App. 321 (2005). The application of this legal distinction has been limited to instances where the separate court actions involved the same parties in interests and not the "typical [case] of a third party garnishing his debtor's assets." Id., 335-36.
In the instant matter, the parties in interests are not the same parties as in the aforementioned foreclosure action. Nor is the subject matter in question in the two matters related. "Where money is paid into court in an action to determine its ownership, it is in the custody of the law, and is to be disposed of only through the medium of the proceedings had in or relating to that cause." Shelton v. Walthausen, 80 Conn. 599 (1908). "[The court clerk], as the officer and the depositary of the court, could recognize no other authority than that which placed the money in his hands pending adjudication and judgment of distribution." (Internal citations omitted.) Id., 604.
This court, although having the authority to do so, is persuaded that, in the instant matter, issuing orders to attach, garnish or otherwise encumber funds held by the court clerk, even in the absence of a "turnover order," would unduly interfere with proper governmental functions and impose undue fiscal and operational burdens on the state.
ORDER
Accordingly, the court, after argument and review of the relevant caselaw, vacates so much of the prior order as attaches, garnishes or encumbers funds held by the Meriden Superior Court that are the proceeds of the foreclosure action, City of Meriden v. Marsha Gracie, Docket No. NNH-CV-08-5003248S.
The Plaintiff is ordered to submit a new proposed order for prejudgment remedy in accordance with this decision.