Opinion
No. X08 FST CV04-4004519S
February 19, 2010
Memorandum of Decision on Plaintiff's Application for Prejudgment Remedy and on Defendant Leventhal's Objection Thereto (213.10)
The plaintiff has filed a post-judgment application for prejudgment remedy in the amount of $400,000 to secure the amount of plaintiff's judgment, accruing interest on that amount, and plaintiff's attorneys fees. The application includes the affidavit of plaintiff's president Samuel L. Braunstein, a Motion for Disclosure of Property, and a request for leave to conduct discovery of defendants' property to ascertain the precise nature and location of assets sufficient to satisfy its judgment. There was a hearing before the court on August 21, 2009 at which all parties were present and were heard by counsel. The defendants stipulated at that hearing that, pending the court's ruling on the PJR application, they would not transfer or encumber assets without the permission of the court, and the court entered an order consistent with that stipulation.
On October 30, 2008 this court entered judgment following a bench trial in favor of the plaintiff in the amount of $89,396.91 consisting of damages in the amount of $61,542.54 and prejudgment interest in the amount of $27,854.37. All parties filed motions to reargue the judgment. On June 30, 2009 the court issued a Memorandum of Decision on Motions to Reargue denying all motions to reargue with the sole exception that the court reserved decision on a point raised by the defendants Coastal Pallet Corporation, Peter Standish and Bernice Donahue that the court had used the wrong statutory rate of interest under Conn. Gen. Stat. § 37-3a(a) for part of the period of accrual of prejudgment interest. After giving the plaintiff an opportunity to respond to that point, the court modified the judgment by recalculating the interest component of the judgment to $26,238.24. The modified judgment is therefore $87,780.78 consisting of damages in the amount of $61,542.54 and interest of $26,238.24 as of October 30, 2008, the original date of judgment.
On December 21, 2009 this court entered an "Interim Ruling re Application for Prejudgment Remedy" deferring final decision thereon until the court had decided the plaintiff's contested application for an award of attorneys fees and costs filed shortly after the application for PJR was initially filed. Now, the court on February 18, 2010 has granted plaintiff's Motion for an Award of Attorneys Fees and Costs Post-Trial by awarding to the plaintiff as against all defendants attorneys fees of $99,425.33 and attorneys costs and disbursements of $6,700.36.
Defendant Marvin Leventhal has filed a procedural Objection to Application for Prejudgment Remedy on the ground that plaintiff should have filed this "application" as a "Motion for Post Judgment Remedy" instead of serving a cover sheet, order, summons, notice, and affidavit and application as one would do in the case of an application for prejudgment remedy filed prior to service or return to court of a complaint in a civil action. In support of that objection defendant Leventhal cites Conn. Gen. Stat. § 52-278h which provides: "The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly." Plaintiff clearly could have sought this post-judgment relief by filing a motion for relief as an ordinary pleading in the case, accompanied by an affidavit in support of the motion, as defendant suggests. Conn. Gen. Stat. § 52-278m provides: "Whenever a prejudgment remedy is sought under the provisions of sections 52-278h or 52-278i against a party who has previously filed a general appearance in such action, personal service of any application or order shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action." Although the service of cover sheet, order, summons and notice is not required, the court sees nothing in the law which would prohibit the over-inclusive procedure of serving such documents upon the defendant-target of the PJR application. The validity of such procedure is implicit in the statute's recognition that a court may order service of process, in which case it is required. See, Burnham v. Carr, 53 Conn.App. 425 (1999) where the Appellate Court held that service of a PJR application while the appeal was pending was not required under § 52-278h because defense counsel had filed a general appearance in the case at the time the motion was filed. There is no suggestion in the opinion that service in hand or abode service would have been improper. The court concludes that service of plaintiff's PJR application package by a state marshal in this case was not improper and did not cause any prejudice to defendant Leventhal. The objection elevates form over substance and is overruled.
Because service of process here was not required the court in ruling on Plaintiff's Application for an Award of Attorneys Fees and Costs Post-Trial declined to award plaintiff's claimed cost of $309.09 as the marshal's fee for serving the PJR package on the defendants.
This proceeding is governed by Conn. Gen. Stat. § 52-278d(a) which provides in relevant part that a hearing on a prejudgment remedy application ". . . shall be limited to a determination of . . . whether or not 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 setoffs, will be rendered in the matter in favor of the plaintiff . . ."
The role of the court in considering an award of a prejudgment remedy is well established:
Pursuant to our prejudgment remedy statutes . . . 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 establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role is such a hearing is to determine probable cause by weighing probabilities. 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. (Citations omitted; emphasis in original; internal quotation marks omitted.) J.K Scanlon Company, Inc. v. The Construction Group, Inc., 80 Conn.App. 345, 350 (2003).
In this case, the probable cause standard is more than satisfied because the court has already entered judgment, and has recently ordered an award of attorneys fees and costs. The amount of the judgment against all defendants as modified is $87,780.78 which includes statutory interest through October 30, 2008. In about a week sixteen months will have elapsed since that date during which statutory interest has continued to accrue on the damages of $61,542.54 at $512.85 per month, or additional interest of $8,205.60. Also, the court yesterday, on February 18, 2010, filed its memorandum of decision awarding attorneys fees and costs in favor of the plaintiff against all defendants in the total amount of $106,125.69. The sum of the $87,780.78 judgment, the $8,205.60 interest accrued on the damages since the date of judgment, and the $106,145.69 attorneys fees and costs is $202,132.07. Taking into account that court costs are yet to be taxed, the court finds that a prejudgment remedy in the amount of $210,000 is appropriate and established.
Interest is allowed pursuant to Conn. Gen. Stat. § 37-3a(a) and is calculated at the current maximum 10% rate under that statute.
ORDER
A prejudgment remedy is hereby ordered jointly against all defendants in the amount of $210,000. This prejudgment remedy is ordered without bond to be posted by the plaintiff since judgment has already entered in its favor. This order is also entered without prejudice to plaintiff's right to seek an upward modification pursuant to Conn. Gen. Stat. § 52-278k in the event that an appeal is filed. Plaintiff's Motion for Disclosure of Property is granted with a compliance date of March 19, 2010. Plaintiff's request for leave to conduct discovery to ascertain the nature and location of defendants' assets is marked "off" subject to being reclaimed by filing a Request for Adjudication after defendants have filed their compliance with the Motion for Disclosure of Assets or March 19, 2010, whichever is later.