Opinion
No. CV-03-0523441
March 2, 2005
MEMORANDUM OF DECISION MOTION TO DISSOLVE PREJUDGMENT REMEDY
FACTS
On November 8, 2004, the defendant, Maciej Wieckowski, ("Defendant") filed a motion to dissolve a prejudgment remedy that was granted on August 26, 2004 in favor of the plaintiff, Krystyna Zdunczuk, ("Plaintiff"). The plaintiff filed an ex parte application for a prejudgment remedy and order on August 26, 2004 and served the defendant with the ex parte application for the prejudgment remedy, order of hearing and notice, summons, motion for disclosure of assets, affidavit, writ of attachment, and certificate of attachment on September 1, 2004. Subsequently, on November 10, 2004, the plaintiff served the defendant again with additional documents. The second service included the original notice of application for prejudgment remedy/claim for hearing to contest application or claim exemption, ex parte application for prejudgment remedy, order for prejudgment remedy, order for hearing and notice, summons, motion for disclosure of assets, affidavit, exhibit #1, notice of ex parte prejudgment remedy/claim for hearing to dissolve or modify, and fiduciary's deed and quitclaim statutory form.
The defendant moves to dissolve and set aside the order granting the plaintiff's application for prejudgment remedy on the following grounds: (1) "The Application, Order for Prejudgment Remedy, Order for Hearing and Notice, and Summons, dated August 26, 2004, which was certified to Defendant's counsel did not contain the Notice to Defendant, an Affidavit sworn to by the Plaintiff, or another competent authority setting forth a statement of funds sufficient to show probable cause, all as required by Connecticut General Statutes Section 52-278c and following"; (2) "The Defendant was not properly served with said Application"; (3) "The Defendant was not given the opportunity to appear and be heard on said Application, as provided in Connecticut General Statutes Section 52-278d"; (4) "The Defendant was not provided with notice as set forth in Connecticut General Statutes Section 52-278e(b)"; (5) "The Defendant did not receive notice from the Court or the Plaintiff that the Application has been granted"; (6) "The Plaintiff has attached more real estate than requested in her Application, namely, 27-29 Roger Street, Hartford, CT, and has filed a false certificate on the land records indicating that this Court granted an Application to attach said premises"; (7) "The Defendant has a valid defense to the action, namely, that the Plaintiff has signed and provided the Defendant with a full release of her claims against him." Defendant's Motion to Dissolve Prejudgment Remedy, November 5, 2004.
The plaintiff objects to the motion for four reasons. First, the plaintiff asserts that the affidavit was sworn to by the plaintiff and was properly filed with the court and forwarded to the defendant's counsel of record. Second, the defendant was properly served and the Marshal's Return of Service was attached as proof. Third, the plaintiff properly cured any defects in service prior to the hearing on the defendant's motion to dissolve. Fourth, the plaintiff claims she did not attach more property than her application requested.
DISCUSSION
The defendant first asserts that the "Application, Order for Prejudgment Remedy, Order for Hearing and Notice, and Summons, dated August 26, 2004, which was certified to the Defendant's counsel did not contain the Notice to Defendant, an Affidavit sworn to by the Plaintiff, or another competent authority setting forth a statement of funds sufficient to show probable cause, all as required by Connecticut General Statutes Section 52-278c and following." Id. According to the Marshal's Return of Service, dated September 1, 2004, the affidavit was served. That affidavit was sworn to by the plaintiff and did in fact contain a statement of funds sufficient to show probable cause. The defendant does not specify which notice was not served. The September 1, 2004 Return of Service listed the order of hearing and notice as being served. If the defendant is referring to the notice required by § 52-278e(b), that issue is taken up in the defendant's fourth ground for the motion to dissolve. Due to the fact that the affidavit is sworn to by the plaintiff and was served on the defendant's counsel and the defendant has not specified which notice was not served, the motion to dissolve is denied as to this ground.
The second assertion that the defendant makes is that he was not properly served. The defendant does not cite any authority on service of process in regards to a prejudgment remedy. Furthermore, the defendant was served on September 1, 2004 and then again on November 10, 2004. General Statutes § 52-278c(a) provides "Except as provided in sections 52-278e and 52-278f, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents . . . (4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of the hearing." The plaintiff did attach a summons on August 26, 2004 directing any proper officer to serve the application for prejudgment remedy and order for hearing and notice on the defendant. The matter was marked on the court's calendar for December 6, 2004 and the defendant was served with all defects corrected on November 10, 2004 which was more than the four days required prior to the hearing date. Therefore, the defendant's motion as to this ground is denied.
The third ground on which the defendant relies on alleges that he was not given the opportunity to appear and be heard on said application, as provided in § 52-278d. While the defendant is correct in asserting that § 52-278d sets out the procedures in hearings on prejudgment remedies, the defendant ignores § 52-278e, which allows the court to grant a prejudgment remedy "without a hearing . . . upon the filing of an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show 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 known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff and that there is reasonable likelihood that the defendant (1) has hidden or will hide himself so that process cannot be served on him or (2) is about to remove himself or his property from this state or (3) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (4) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts." General Statutes § 52-278e(a); see also Glanz v. Testa, 200 Conn. 406, 408-09, 511 A.2d 341 (1986) (holding that "the court may award a prejudgment remedy, without a hearing or notice to the defendant, upon verification by oath of the plaintiff or some competent affiant that there is probable cause to sustain the validity of the plaintiff's claim."). In the plaintiff's sworn affidavit, she states that she believes that the defendant is planning to move to another state or another country because he is attempting to sell his assets and has acquired real estate in Florida, thereby satisfying subsection 2 of § 52-278e(a). Furthermore, the plaintiff believes there is a likelihood that the defendant "is about to fraudulently hide money, property or effects," thereby satisfying subsection 4 of § 52-278e(a). Plaintiff's Affidavit, August 26, 2004. The plaintiff has satisfied the requirements of § 52-278e, which allows a prejudgment remedy without a hearing, therefore, the defendant's motion as to this ground is denied.
The fourth ground that the defendant asserts as a basis for his motion is that he was not provided with notice as set forth in § 52-278e(b). The plaintiff argues that she cured any defects before the date of the hearing and therefore, the motion to dissolve should not be granted. Prejudgment remedies are creatures of statute and are unknown to common law, therefore, statutory requirements must be followed strictly. See State v. Philip Morris, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 96 0148414 (October 27, 1998, Sheldon, J.) ( 23 Conn. L. Rptr. 192). However, several courts have held that Practice Book § 10-59 applies to prejudgment remedies. Shelton Winnelson Co. v. Sapiente, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 98 0063705 (May 21, 1999, Flynn, J.) ( 24 Conn. L. Rptr. 556). It specifically provides that a "plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day." Practice Book § 10-59. "Typically, prejudgment remedies are sought before or coincident with the bringing of an action, but § 52-278h expressly permits a plaintiff to seek such remedy after the institution of suit. That section also specifically allows the applicant leeway to adapt the forms and procedure contained in §§ 52-278a through n to that circumstance . . . Certain requirements of § 52-278c are clearly inappropriate if the prejudgment remedy application is made after the action has begun. For example, § 52-278c obligates the applicant to serve the respondent with a copy of the `proposed, unsigned writ, summons and complaint.' Under § 52-278h, this procedure can be eliminated because the defendants would already have been served with a signed writ, summons, and complaint." Laperle v. KN Ambulance Corps., Superior Court, judicial district of Windham at Putnam, Docket No. CV 98 0058133 (July 30, 1998, Sferrazza, J.). In the present case, the application for prejudgment remedy was filed almost a year after the commencement of the action; therefore, it is necessary that the court adapt the forms and procedure to this circumstance. The plaintiff served the defendant with the proper notice well before the hearing date, thereby curing any defects. Therefore, the court denies the motion as to this ground.
General Statutes § 52-278e(b) provides: "If a prejudgment remedy is issued pursuant to this section, the plaintiff shall include in the process served on the defendant a notice and claim form, in such form as may be prescribed by the Office of the Chief Court Administrator, containing the following language: YOU HAVE THE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERINING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE THE RIGHT TO A HEARING (1) TO OBJECT TO THE PREJUDGMENT REMEDY BECAUSE YOU HAVE A DEFENSE TO OR SET-OFF AGAINST THE ACTION OR A COUNTERCLAIM AGAINST THE PLAINTIFF OR BECAUSE THE AMOUNT OF THE PREJUDGMENT REMEDY ALLOWED BY THE COURT IS UNREASONABLY HIGH OR BECAUSE PAYMENT OF ANY JUDGMENT THAT MAY BE RENDERED AGAINST YOU MAY HAVE; (2) TO REQUEST THAT THE PLAINTIFF POST A BOND IN ACCORDANCE WITH SECTION 52-278d OF THE GENERAL STATUTES TO SECURE YOU AGAINST ANY DAMAGES THAT MAY RESULT FROM THE PREJUDGMENT REMEDY; (3) TO REQUEST THAT THE PREJUDGMENT REMEDY BE DISSOLVED OR MODIFIED OR THAT YOU BE ALLOWED TO SUBSTITUTE A BOND FOR THE PREJUDGMENT REMEDY; AND (4) TO SHOW THAT ANY PROPERTY SUBJECT TO THE PREJUDGMENT REMEDY IS EXEMPT FROM SUCH A PREJUDGMENT REMEDY."
In the defendant's fifth ground, he claims that he did not receive notice from the court or the plaintiff that the application was granted. The Marshal's Return of Service listed the notice of the order on September 1, 2004; therefore, it seems implausible that the defendant did not receive notice of the order granting the prejudgment remedy. Therefore, the court denies the motion as to this ground.
The sixth ground for the defendant's motion to dissolve claims that the plaintiff attached more real estate than requested in her application, namely, 27-29 Roger Street, Hartford, CT, and filed a false certificate on the land records indicating that this court granted an application to attach said premises. The plaintiff's application clearly states that the plaintiff sought to "attach sufficient property of the Defendant . . . including the Real Property located at 521 Allen Street, New Britain, Connecticut, and the business assets of MSKI Cleaning Services located at 521 Allen Street . . . to secure such sum." (Emphasis added.) Plaintiff's Ex Parte Application for Prejudgment Remedy, August 26, 2004. The defendant is mistaken in claiming that more property was attached because the plaintiff did not limit the relief sought to the property listed, she only included it. The court ordered the attachment of defendant's real estate on August 26, 2004. Order for Prejudgment Remedy, August 26, 2004. The plaintiff did not attach more property than requested in her application. There is also no evidence presented in regard to the alleged false land records. Therefore, the motion to dissolve on this ground is not granted.
Finally, the defendant claims that he has a valid defense to the action, namely, that the plaintiff has signed and provided the defendant with a full release of her claims against him. This court will not grant the motion on this ground because the defendant has not presented any credible evidence proving this defense.
The defendant could have submitted the document that he alleges was signed by the plaintiff, releasing the defendant of the plaintiff's claims against the defendant.
Therefore, the defendant's motion to dissolve the prejudgment remedy is denied.
Richard E. Burke, J.