Opinion
No. CV90-0384919-S
June 28, 2011
MEMORANDUM OF DECISION RE POST-JUDGMENT RELIEF
Introduction
On February 19, 1991, judgment was rendered in this matter in favor of the plaintiff, Fleet Bank of Connecticut, Inc., against the defendant, Francis Kucza, in the amount of $8,061.70 plus costs of $228.70. The judgment was based on a claim for the unpaid balance on a note between the parties. On September 28, 1993 the judgment was assigned by Fleet Bank to The Cadle Company. On March 17, 1994 the judgment was assigned by The Cadle Company to D.A.N. Joint Venture. On January 21, 1996, D.A.N.'s Motion to Open and Substitute Party Plaintiff was denied by the court which cited General Statutes § 52-350d(b). General Statutes § 52-350d provides: "(a) For the purposes of postjudgment procedures, the Superior Court shall have jurisdiction over all parties of record in an action until satisfaction of the judgment or, if sooner, until the statute limiting execution has run, except the Superior Court shall have jurisdiction at any time to determine exemption rights and grant appropriate relief. (b) This section shall not be construed to allow opening of a judgment other than within four months succeeding the date on which it was rendered as provided by section 52-212a or as otherwise provided by law." Despite the denial of D.A.N.'s motion, on May 20, 2009 the court granted D.A.N.'s Motion for Post-Judgment Discovery and Application for Turnover Order in Aid of Execution. On June 23, 2009 the court granted D.A.N.'s Motion for Order of Nominal Payments and ordered that the defendant make weekly payments of $75.00 commencing July 17, 2009 over the defendant "Franklin R. Kucza's" objection that he "is not the party the plaintiff alleges." On June 26, 2009, Franklin R. Kucza entered an appearance in this matter for "Franklin R. Kucza alleged to be Francis R. Kucza."
A later assignment between the same parties dated January 31, 2007 indicates that the assignment was effective August 4, 1993.
A later assignment between the same parties is dated February 5, 2007.
Before the court are numerous motions relating to D.A.N's further attempts to collect on the judgment. A hearing was held on the motions on October 6, 2010 and February 7, 2011. The court heard testimony from Franklin Kucza; Attorney Elizabeth Cipriano, an attorney who had previously represented D.A.N. in this matter; and Nick Davies, account officer for D.A.N.; and received numerous exhibits. Post-hearing briefs were filed on March 7, March 26, April, 4, April 9, April 15, and April 25.
Discussion Defendant's Motion for Order (#125)
Prior to consideration of D.A.N.'s motions seeking post-judgment discovery, the court must consider the recent motion of the defendant requesting that the court remove D.A.N. as plaintiff and order it to file a withdrawal from this matter in light of the court's January 21, 1996 decision denying its motion to be substituted as plaintiff.
The exact same issue presented here was addressed by the Appellate Court in Mall v. LaBow, 33 Conn.App. 359 (1993), cert denied, 229 Conn. 912 (1994). There the defendant appealed from the denial of her motion to vacate a property execution against her. Mall, one of the attorneys who had represented the defendant in her marriage dissolution, had obtained a judgment against her for unpaid legal fees. Five years later, Mall assigned that judgment to Warren Joblin. Joblin then obtained a bank execution against funds of the defendant. Joblin's motion to be substituted as plaintiff was denied. Although Joblin was not a party to the case, the court granted him amicus status for purposes of the appeal by LaBow. The Appellate Court affirmed the trial court's decision. It held that: "Judgments are assignable . . . A judgment is a chose in action . . . The assignee of a chose in action stands in the shoes of the assignor . . . A valid assignment transfers to the assignee exclusive ownership of all of the assignor's rights to the subject assigned and extinguishes all of those rights in the assignor . . . Thus, an assignee of a judgment acquires the right to collect on the judgment. This conclusion is also supported by the Connecticut statutes governing postjudgment remedies. The General Statutes define judgment creditors as `person[s] in whose favor a money judgment was rendered, or any person[s] succeeding to such rights.' . . . General Statutes 52-350a(l0) . . . A person succeeds to rights when [o]ne . . . follows another in ownership or control of property . . . Mall had a money judgment rendered in his favor; Joblin succeeded to those rights by assignment. Therefore, Joblin was the defendant's judgment creditor, having available to him all of the statutory postjudgment remedies. See General Statutes 52-350f through 52-400e." (Footnote, internal quotation marks and citations omitted.) Id., 362-3.
A second decision, rendered the same day as Mall v. LaBow and involving a property execution to enforce another judgment against LaBow, is also applicable here. In Joblin v. LaBow, 33 Conn.App. 365 (1993), cert. denied, 229 Conn. 912 (1994), the defendant appealed from the trial court's denial of her motion to vacate a property execution to enforce a judgment against her. There, John Colleran, an attorney who had represented the defendant in her marriage dissolution, obtained a judgment against her for unpaid legal fees. Five years later, Colleran assigned the judgment to Warren Joblin. Seven years after the assignment, Joblin obtained a property execution. At the subsequent hearing to vacate the execution, the trial court granted Joblin's motion to be substituted as plaintiff. There the defendant argued that the trial court improperly permitted an assignee of a judgment to obtain a property execution. The court indicated that it had resolved that issue in Mall v. LaBow. The defendant also claimed that the trial court improperly granted Joblin's motion to be substituted as plaintiff. The court stated: "In general, substitution is permitted where an action was commenced in the name of the wrong person; General Statutes 52-109; Practice Book 101; in cases of misjoinder and nonjoinder; Practice Book 100; and in cases of assignment. Practice Book 96. In each situation, the statute or rule envisions substitution while the action is pending. See, e.g., General Statutes 52-109 (substitution allowed `[w]hen any action has been commenced in the name of the wrong person'); Practice Book 96 (substitution permissible `[i]f, pending the action, the plaintiff assigns the cause of action'). Where judgment has been rendered, however, substitution is unavailable unless the judgment is opened . . . In this case, Colleran obtained the judgment five years before the assignment and twelve years before the motion for substitution. Thus, Joblin should not have been substituted for Colleran. This conclusion, however, does not alter the result. As we noted in Mall v. LaBow, supra, Joblin did not have to substitute himself for Colleran in order to collect on the judgment. Once assigned, the judgment could be enforced by the new judgment creditor, Joblin. Therefore, even though the substitution was improper the result would be the same." (Citations omitted.) Id., 367-8.
Therefore the fact that D.A.N. was not substituted as plaintiff in this matter does not affect its rights to enforce the judgment. D.A.N., through the assignment of the judgment to it, became the defendant's judgment creditor and has all the statutory postjudgment remedies available to it to enforce the judgment.
The defendant's motion (#125) is denied and D.A.N.'s objection (#127) is sustained.
Plaintiff's Motion to Compel Post-Judgment Discovery and Plaintiff's Motion to Amend, Modify or Correct the Judgment to Include the Alias of the Defendant (#111)In response to the service of post-judgment interrogatories upon the defendant, Franklin R. Kucza advised D.A.N.'s counsel, by letter dated June 10, 2009, that he was "not in the possession of the Judgment Debtor's Property known as Francis Kucza." Exhibit B to Motion #11]. By motion dated September 2, 2009, D.A.N. then moved that the court order that additional discovery be provided by Franklin Kucza, who it believed was the defendant, Francis Kucza, and that a hearing be scheduled to allow D.A.N. to confirm that the defendant in this matter and Franklin R. Kucza are one and the same person. The defendant objected to the motion and denied "the Plaintiff's cause to believe that the Defendant and Franklin R. Kucza are one and the same" and that Franklin R. Kucza was not the defendant in this matter. Objection to Motion to Compel Post-Judgment Discovery and Motion to Amend, Modify or Correct the Judgment to Include the Alias of the Defendant, 9/2/09, Pleading #112. On September 21, 2009, the court ordered that: "The Plaintiff/Judgment Creditor, D.A.N. Joint Venture, a Limited Partnership, may serve on Franklin R. Kucza a subpoena duces tecum for the production of documentation concerning the Defendant Judgment Debtor, Francis R. Kucza and/or Franklin R. Kucza . . . Thereafter, the Court will schedule a hearing thirty (30) days after the Plaintiff/Judgment Creditor, D.A.N. Joint Venture, a Limited Partnership, may serve a subpoena on Franklin R. Kucza to appear at said hearing. Failure to comply with this Order and such subpoena duces tecum, subpoena and/or failure to appear at hearing may subject the Defendant/Judgment Debtor, Francis R. Kucza and/or Franklin R. Kucza to be held in contempt of court." After a subsequent hearing, on October 6, 2010, the court found "that the Defendant Francis R. Kucza is also known as or goes by the name of Franklin R. Kucza. The judgment dated February 19, 1991 shall be amended, modified and/or corrected to state that the judgment is in favor of the Plaintiff/Judgment Creditor, D.A.N. Joint Venture, a Limited Partnership, and against the Defendant/Judgment Debtor, Francis R. Kucza a/k/a Franklin R. Kucza." The court deferred decision on D.A.N.'s other requests for relief pending further hearing. The plaintiff requests as a sanction an award of attorneys fees and an order that the defendant be ordered not to remove, transfer or withdraw any of his monies or assets.
At the October 6th hearing, after admitting that he had gone for years by the name Francis Kucza, although his birth certificate listed his name as Franklin Kucza, and that he signed the note that was the subject of this action, the defendant now claimed that the judgment had been paid. The defendant made this claim after repeatedly claiming in this litigation that he was not the named defendant and his identity had been stolen by his brother, not that the judgment had been paid. The matter was continued, however, so that the defendant could provide proof of payment. The hearing was to continue to December 21, 2010 but, at the defendant's request, it was rescheduled to February 7, 2011. At that time the court heard additional evidence regarding this matter. The defendant claimed that it was his belief that this judgment had been paid as part of the closing on property he sold in June 1991. The evidence presented at the hearing established that the Defendant owed two debts to D.A.N.'s predecessor, Fleet Bank. The proceeds of the sale of the property were used to pay a note to Fleet Bank secured by a mortgage on the property, not the judgment here which was based on payments due on an unsecured note to Fleet Bank. The judgment itself was also not secured by a lien on the property. From the evidence presented, the court concludes that the judgment was not paid as part of the sale of the property and it remains unpaid.
The plaintiff claims that it is entitled to attorneys fees pursuant to General Statutes § 52-400c and as a sanction for Kucza's repeated attempts to mislead the plaintiff and the court as to his identity and responsibility for the judgment. General Statutes § 52-400c provides that: "In the discretion of the court, a reasonable attorneys fee may be allowed to the prevailing party (1) for counsel at any contempt hearing reasonable and necessary for the enforcement of a court order, pursuant to section 52-256b, (2) for counsel at any discovery hearing reasonable and necessary for the enforcement of disclosure rights, and (3) for counsel at any other hearing that is reasonable and necessary for the enforcement of rights pursuant to a postjudgment procedure that is held on a claim or defense that the court determines was made for the purpose of harassment or solely for the purpose of delay."
In light of the fact that the defendant repeatedly misrepresented to the plaintiff and this court that he was not the named defendant in this case resulting in substantial additional work by the plaintiff in pursuing its claim, an award of attorneys fees is appropriate. Although Kucza claims that the attorneys fees requested by D.A.N. should not be allowed because the bills submitted were sent to The Cadle Company, the D.A.N. representative testified that D.A.N. had paid the attorneys fees. Therefore fees are awarded in the amount of $20,000.00
Motion for Contempt (#114)
D.A.N. claims that it propounded to the defendant post-judgment discovery as allowed by General Statutes § 52-351b. That statute states: "(a) A judgment creditor may obtain discovery from the judgment debtor, or from any third person the judgment creditor reasonably believes, in good faith, may have assets of the judgment debtor, or from any financial institution to the extent provided by this section, of any matters relevant to satisfaction of the money judgment. The judgment creditor shall commence any discovery proceeding by serving an initial set of interrogatories, in a prescribed form containing such questions as to the assets and employment of the judgment debtor as may be approved by the judges of the Superior Court or their designee, on the person from whom discovery is sought . . . Such person shall answer the interrogatories and return them to the judgment creditor within thirty days of the date of service . . . (c) On failure of a person served with interrogatories to return, within the thirty days, a sufficient answer or disclose sufficient assets for execution, or on objection by such person to the interrogatories, the judgment creditor may move the court for such supplemental discovery orders as may be necessary to ensure disclosure including (1) an order for compliance with the interrogatories or (2) an order authorizing additional interrogatories. The judgment creditor may obtain discovery, including the taking of depositions, from any person served with interrogatories in accordance with procedures for discovery in civil actions without further order of the court. The court may order such additional discovery as justice requires provided the order shall contain a notice that failure to comply therewith may subject the person served to being held in contempt of court . . ."
On June 7, 2009 Franklin R. Kucza was served with post-judgment interrogatories. He did not respond to them, claiming that he was not in possession of the property of the judgment debtor known as Francis Kucza. On September 21, 2009, the court ordered that: "The Plaintiff/Judgment Creditor, D.A.N. Joint Venture, a Limited Partnership, may serve on Franklin R. Kucza a subpoena duces tecum for the production of documentation concerning the Defendant Judgment Debtor, Francis R. Kucza and/or Franklin R. Kucza." The plaintiff served such a subpoena but the defendant has failed to respond. The court, having found that the defendant, Francis R. Kucza is known as or goes by the name of Franklin R. Kucza, and is the judgment debtor in this matter, is required to respond to the subpoena. Since D.A.N. has not requested enforcement of this specific subpoena in its suggested orders, the court does not so order. However, D.A.N., as noted above, continues to have available to it all applicable post-judgment procedures, including those provided in General Statutes § 52-351b.
Motion for Award of Post-Judgment Interest (#120)
In Bower v. D'Onfro, 45 Conn.App. 543, 549-50 (1997), the Appellate court stated that: "General Statutes § 37-3b does not provide for any time limits by which a party must seek interest. Nor does any other statute or rule of Practice set a time limit. Statutory and case law clearly recognize that motions for postjudgment interest may be made after judgment has been rendered. See generally General Statutes § 52-192a; Balf Co. v. Spera Construction Co., 222 Conn. 211, 214-15, 608 A.2d 682 (1992); IBM Credit Corp. v. Mark Facey Co., 44 Conn.App. 490, 493-94 (1997) (regarding postjudgment motions for determination of interest under General Statutes § 37-3a); Edward Denike Tree Co. v. Butler, 21 Conn.App. 366, 369, 573 A.2d 349 (1990). Common sense also dictates that a party seeking an award of postjudgment interest must file a post-trial motion because the award can be determined only after judgment has been rendered. Cf. Paine Webber Jackson Curtis, Inc. v. Winters, 26 Conn.App. 322, 326, 600 A.2d 1048 (1991) (regarding interest under General Statutes § 52-192a), aff'd, 225 Conn. 146, 622 A.2d 536 (1993). We also note that this court, in Stafford Higgins Industries, Inc. v. Norwalk, 15 Conn.App. 752, 759, 546 A.2d 340 (1988), ruled that interest on a judgment should not be denied solely because judgment was rendered five years earlier."
"A decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court." (Citations and internal quotation marks omitted.) TDS Painting Restoration, Inc. v. Copper Beech Farm, Inc., CT Page 14272 73 Conn.App. 492, 511, cert. denied, 262 Conn. 925 (2002).
General Statutes § 37-3a provides that: "Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable . . ." Here the defendant has refused to pay a judgment entered against him by attempting to argue repeatedly that he was not the person sued. Yet, when he appeared before this court and testified, it was clear, from his own admissions, that he was. Therefore interest is clearly warranted here. It is within the discretion of the court to award interest where the retention of money was unlawful. See, Sosin v. Sosin, 300 Conn. 205, 235 (2011). The retention of money is unlawful where the party has failed to pay a lawful judgment rendered against him.
Therefore the court awards interest in the amount of 10% from the date of judgment, February 1, 1991. Calculating interest on the judgment amount of $8,290.40 at $829.04 per year, the amount of interest due as of June 28, 2011 is $16,854.50. Interest will continue to accrue at the rate of 10% per year on any unpaid balance of the judgment.
Conclusion
For the reasons stated above the court enters the following orders:
1. D.A.N. has authority to seek relief from the court, and/or invoke all applicable post-judgment procedures to enforce the judgment in this case.
2. Postjudgment interest is awarded in the amount of $16,854.50 due as of June 28, 2011. Interest will continue to accrue at the rate of 10% per year on any unpaid balance of the judgment.
3. D.A.N. is awarded attorneys fees and costs in the amount of $20,000.00.