Opinion
No. CV04-4000033S
March 28, 2005
MOTION FOR DISCLOSURE OF ASSETS #109
FACTS
This action arises from the granting of a prejudgment remedy against the defendant, Jason Burgess on August 13, 2004, with an attachment in the amount of $1 million. The following facts are alleged in the complaint, which was filed on October 21, 2004, by the plaintiff, Darrell Burgess, owner, operator, manager and controller of Terminators of America, Inc., dba Mastershield and Prestco, L.L.C. (Terminators). Jason Burgess is the son of the plaintiff and a former employee of Terminators. Terminators had one secured creditor, Kenneth Jalbert. As a result of an agreement between the plaintiff and Jalbert, and following the default of Terminators on a secured debt to Jalbert, Jalbert exercised his right to repossess the assets of Terminators. Jalbert then sold the repossessed assets to Prestco, L.L.C. (Prestco), an entity that had been created by the plaintiff to acquire these repossessed assets. Jason Burgess is the sole member of Prestco and agreed to hold title to it in his name as trustee for the plaintiff as an undisclosed beneficiary. In consideration of the agreement between Jalbert and the plaintiff, the debt owed Jalbert was paid in advance of the maturity date in the original note from terminators.
The defendant, without the knowledge or consent of the plaintiff, sold the assets from the repossession to Chas S. Bogannam dba BUG-EZ for an undisclosed sum of money and has kept the proceeds from that sale. The fair market value of these assets is approximately $1 million. The defendant has failed to return to the plaintiff any of the proceeds from the sale of the repossessed assets.
In count one, the plaintiff alleges that the defendant "has been unjustly enriched" by his continued possession of the proceeds. In count two, the plaintiff alleges that despite making a demand for the return of the proceeds from the sale of the assets, the defendant has converted them to his own use. In count three entitled `money had and received,' the plaintiff alleges that the defendant has received the proceeds from the sale of the assets for an undisclosed certain sum and has refused to pay the money to the plaintiff. In count four for the breach of an oral contract, the plaintiff alleges that the defendant is wrongfully holding and retaining these funds as trustee for the plaintiff in violation of their agreement. In count five, entitled "constructive trust," the plaintiff alleges that "[b]y agreement and understanding with [the defendant], [the plaintiff] provided a large sum of money to [him] for the purpose of creating a common fund with which a secured debt would be paid and the excess held in trust for [the plaintiff]"; that the defendant sold the assets without the consent or knowledge of the plaintiff; and that "[t]he sum remaining in the common fund after payment of the expenses due to its creditors was never refunded or accounted to [the plaintiff]."
On December 1, 2004, the plaintiff filed a motion for the disclosure of assets in which he seeks to attach the assets of the defendant sufficient to satisfy the prejudgment remedy and for an order pursuant to General Statutes § 52-578n requiring the defendant to disclose the existence, location and extent of his interest in all property both real and personal, in which the defendant has an interest or debts owing to him. The defendant filed an objection to the plaintiff's motion on the ground that the writ, summons and complaint were not served and returned to the court within thirty days from the granting of the prejudgment remedy as required by § 52-578j of the General Statutes, thereby rendering the prejudgment remedy invalid.
DISCUSSION
The statute which is the subject of the court's consideration is General Statutes § 52-278j which states:
(a) If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy.
(b) If an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, or if a date for a hearing upon a prejudgment remedy is scheduled by the clerk and such hearing is not commenced within thirty days thereof, except as provided in Section 52-278e, the court shall order the application to be considered as having been withdrawn.
(c) An application for a prejudgment remedy or a prejudgment remedy which is granted but not served may be withdrawn in the same manner as a civil cause of action.
"[T]he plaintiff's right to a [prejudgment remedy] is founded and regulated by statute, [and therefore] the law mandates strict compliance with the authorizing statute." William Beazley Co. v. Business Park Associates, Inc., 34 Conn.App. 801, 803, 643 A.2d 1298 (1994). "In 1991, § 52-278j(a) was amended by Public Act 91-315. Prior to the adoption of Public Act 91-315 . . . cases held that the time limits in the statute were not mandatory, and therefore were not jurisdictional . . . Public Act 91-315 changed the statutory language [of § 52-278j(a)], however, from a statement that the court `may' dismiss the prejudgment remedy to a statement that the court `shall' dismiss the prejudgment remedy, if the writ, summons and complaint are not filed within the thirty day period . . . Williamson v. Seidman, Superior Court, judicial district of New London, Docket No. 0536900 (October 30, 1996, Burley, J.) ( 18 Conn. L. Rptr. 228] (granting defendant's motion to dismiss the prejudgment remedy of attachment because, although the plaintiff delivered the writ, summons and complaint to the sheriff within the thirty day statutory period, the sheriff failed to make service within the statutory period, due to the death of his wife)." (Internal quotation marks omitted.) Errigal Construction v. Arganese Properties, Superior Court, judicial district of Waterbury, Docket No. CV02-0170901 (January 21, 2003, Gallagher, J.) ( 33 Conn. L. Rptr. 691, 692).
"The legislature's use of the word `shall' generally evidences an intent that the statute be interpreted as mandatory." Todd v. Glines, 217 Conn. 1, 8, 583 A.2d 1287 (1991). "The change in the statutory language from may to shall indicates that the legislature made an affirmative selection of words with a specific intent to make use of each word's distinctive meaning . . . Ordinarily, the word shall connotes that the directive is mandatory, not permissive . . . Thus, [i]f read according to the commonly approved usage of its language, the statute then speaks for itself . . . The legislative history of § 52-278j is instructive. Senator Avallone stated: `The bill requires, instead of permits, a court to dismiss [a] PJR, prejudgment remedy or order the application for a PJR to be considered withdrawn if the plaintiff does not institute the action within a specified period of time. It used to be 90 days, now they have to file the action in 30 days.' 34 S. Proc., Pt. 10, 1991 Sess., p. 118, remarks of Senator Avallone. Thus, it appears that the directive in § 52-278j is mandatory." (Citations omitted; internal quotation marks omitted.) Williamson v. Seidman, supra, 18 Conn. L. Rptr. 229. In addition, "[t]he power of taking property by attachment, before any just debt or claim has been established, is an extraordinary power, given by statute, against common right; and no title can be acquired by its exercise, except by strict compliance with the terms of the statute." (Internal quotation marks omitted.) Feldmann v. Sebastian, 261 Conn. 721, 725-26, 805 A.2d 713 (2002). The Connecticut Supreme Court has consistently "adhered to these principles of strict construction dealing with various aspects of prejudgment remedy statutory schemes." Id., 725.
The statute governing prejudgment remedies clearly stated that "[i]f an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof . . . does not serve and return to court the writ, summons and complaint . . . the court shall dismiss the prejudgment remedy." General Statutes § 52-278j(a). "Where . . . the language of the statute is clear and unambiguous, courts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for doing so. Simko v. Zoning Board of Appeals, 205 Conn. 413, 418, 533 A.2d 879 (1987), modified on other grounds, 206 Conn. 374, 538 A.2d 202 (1988). The language of § 52-278j(a) is to be strictly construed" (Internal quotation marks omitted.) Errigal Construction v. Arganese Properties, supra, 33 Conn. L. Rptr. 692; see also Benistar v. Property Exchange Trust Co., 268 Conn. 264, 273, 842 A.2d 1113 (2004) (if the time requirement of thirty days is not complied with in § 52-278j, then the court must dismiss the prejudgment remedy).
Connecticut Practice Book § 10-33 states:
Any claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.
In Melendez v. Valley Metallurgical Processing Co., 86 Conn.App. 880, 884 (2004) the court restated the rule on subject matter jurisdiction:
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Internal quotations marks omitted.) Figueroa V. CS Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).
In the present case, the court granted the prejudgment remedy on August 13, 2004. The plaintiff filed his complaint with the writ and summons and following service on the defendant on October 21, 2004, more than thirty days after the granting of the remedy as mandated by § 52-278j. Since the thirty-day requirement in which the plaintiff had to serve and return to the court the writ, summons and complaint began to run on August 13, 2004 and expired on September 13, 2004, which was before the plaintiff filed the mesne process with the court, the court lost subject matter jurisdiction over the prejudgment remedy. The prejudgment remedy is therefore dismissed without prejudice. The writ, summons and complaint are not effected by this ruling.
AGATI, J.