Opinion
No. 0412199
June 16, 2004
MEMORANDUM OF DECISION
General Statutes § 52-278d(a) provides in relevant part that if, after a hearing on an application for a prejudgment remedy "the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court."
"`The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . .' (Internal quotation marks omitted.) Calfee v. Usman, 224 Conn. 29, 37, 616 A.2d 250 (1992). Probable cause for purposes of the PJR statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false. Goodwin v. Pratt, 10 Conn. App. 618, 621, 524 A.2d 1168 (1987)." Fischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994). "`In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs' claim. [T]he trial court, vested with broad discretion, need determine only the likely success of the plaintiffs' claim by weighing probabilities.' (Citations omitted; internal quotation marks omitted.) Haxhi v. Moss, 25 Conn. App. 16, 18-19, 591 A.2d 1275 (1991); E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-30, 356 A.2d 893 (1975). Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action. One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn. App. 524, 525, 589 A.2d 892 (1991)." Tyler v. Schnabel, 34 Conn. App. 216, 219-20, 641 A.2d 388 (1994).
The court finds that monies totaling approximately $660,000 were at one time or another given the defendant by his ailing and dependent mother under an agreement to use the money for her care and then, with exception of certain gifts made to family members, divide the residue after her death equally between her three sons. While the mother may have changed her wishes concerning the equal division between her sons at one point, her original desire for an equal division again became operative and known to the defendant prior to her death.
The arrangement was one in which the defendant owed a fiduciary relationship to his mother and brothers and over which courts regularly impose a constructive or resulting trust. See Starzec v. Kida, 183 Conn. 41, 50-51, 438 A.2d 1157 (1981); Cohen v. Cohen, 182 Conn. 193, 203, 438 A.2d 55 (1980); Hieble v. Hieble, 164 Conn. 56, 316 A.2d 777 (1972).
Of the monies given to the defendant, only about $110,000 can be reasonably accounted for. However, over time, other monies from sources such as pensions and social security came into the defendant's possession, creating a net of approximately $600,000 which is unaccounted for. The defendant claims that some of this was held in stocks which severely declined during the relevant period, 2000 to 2003. The balance, however, he claims to have expended on his mother's care. In response to an inquiry from the court, the defendant testified that all such payments were made by check. The defendant had the means, either directly or by process, to produce those checks at the hearing. He did not. The court, however, will credit the defendant's testimony that the stocks held in the stock brokerage accounts suffered a general degradation. Indeed, the court takes judicial notice that most public traded stocks suffered during this period. Gannon v. Gannon, 130 Conn. 449, 452, 35 A.2d 204, 150 A.L.R. 986 (1943) (judicial notice taken of depression); New Haven v. New Haven Water Co., 118 Conn. 389, 397, 172 A. 767 (1934).
The court finds that there is probable cause that a judgment in the amount of $355,000 will be rendered in favor of the plaintiffs. A prejudgment remedy, as requested, in the amount of $355,000 is issued in favor of the plaintiffs.
Bruce L. Levin Judge of the Superior Court CT Page 9189