Opinion
Nos. HHD-CV07-4028460S, HHD-CV07-4029220S
March 13, 2009
MEMORANDUM OF DECISION MOTIONS TO DISSOLVE PREJUDGMENT ATTACHMENT
I STATEMENT OF CASE
The above-entitled matters involve a sovereign enforcement action under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff, the state of Connecticut, is represented by the office of the attorney general, acting at the request of Jerry Farrell, Jr., the commissioner of consumer protection. The defendants are: (1) Sunrise Herbal Remedies, Inc. (Sunrise); (2) Sage Advice, Inc. (Sage); (3) Valerie Hawk-Hoffman; (4) David Hoffman; and (5) Wachovia Bank N. A. (Wachovia). Sunrise, doing business as Sage, is a retail company engaged in the business of selling herbal products to consumers, with its principal place of business at 35 Codfish Hill Road, Bethel, Connecticut (35 Codfish Hill Road). Valerie Hawk-Hoffman is a principal of Sunrise and Sage. She is married to David Hoffman, who is also a manager of Sunrise. These parties, Sunrise, Sage, Valerie Hawk-Hoffman, and David Hoffman, will be referred to collectively in this opinion as "the defendants." The plaintiff alleges that the defendants have engaged in numerous unfair or deceptive acts or practices in connection with the sale of herbal products to consumers, beginning in 2001 and continuing to the present, in violation of CUTPA.
The first action filed, State v. Sunrise Herbal Remedies, Inc., Docket No. CV 07 4028460, alleges violations of CUTPA. On March 19, 2007, the state filed an application for an ex parte prejudgment remedy (PJR) to secure the sum of at least $1,391,000, which represents $91,000 in restitution and $1,300,000 in civil penalties (based upon 260 willful violations at $5,000 each). The application sought the attachment of Valerie Hawk-Hoffman's real property, located at 35 Codfish Hill Road. The sole affidavit filed in support of the PJR application was made by assistant attorney general Matthew F. Fitzsimmons. Fitzsimmons has not entered an appearance in this action. On March 19, 2007, the court, Miller J., granted the application, ordering that the state may attach to the value of $1,391,000 the property located adjacent to 35 Codfish Hill Road, which property was owned by Valerie Hawk-Hoffman.
In the second action filed, State v. Hoffman, Docket No. CV 07 4029220, the state alleges claims of fraudulent conveyance. On March 23, 2007, the state applied for an ex parte PJR to secure the sum of at least $1,391,000, which represented the amount of the attachment granted by the court, Miller J., on March 19, 2007, against Valerie Hawk-Hoffman in State v. Sunrise Herbal Remedies, Inc. The application sought the attachment of David Hoffman's real property, located at 35 Codfish Hill Road. The affidavit in support of the application was made by Fitzsimmons, who has not entered an appearance. On March 23, 2007, the court, Wiese, J., granted the ex parte PJR, ordering that the state may attach to the value of $1,391,000 the property located at 35 Codfish Hill Road, which property was owned by David Hoffman.
On July 30, 2008, upon the agreement of the parties, the court, Graham, J., ordered the substitution of the state's attachment on the property with the state's attachment on the net proceeds from the sale of the property, in the form of a cash escrow. The property was subsequently sold, along with and as part of the transaction for the sale of the 35 Codfish Hill Road parcel. The amount of $497,772.23 was placed in the escrow account, which is subject to the state's attachment and reflects the proceeds from the sale of both parcels. Wachovia, a mortgage holder, was allowed to intervene as an interested party, and was a party to the agreement.
On October 8, 2008, the defendants filed a motion to dissolve or reduce the attachment obtained by the state on March 23, 2007. The state filed a response on October 20, 2008.
On December 2, 2008, the plaintiff filed a substitute affidavit in support of the application for an ex parte PJR. The substitute affiant was Patrick Ahlquist, an investigator with the office of the attorney general. On or about December 17, 2008, the defendants filed an objection to the substitute affidavit.
The probable cause hearing was scheduled to begin on December 17, 2008. On that date, the defendants and Wachovia raised legal issues regarding the court's jurisdiction to allow the prejudgment attachment to remain in effect, and to proceed with the probable cause hearing. The court continued the probable cause hearing, and ordered a briefing schedule.
On January 9, 2009, the defendants filed a supplemental motion to dissolve the attachment. On January 9, 2009, Wachovia filed a motion to dissolve the PJR and attachment, and submitted a memorandum of law in support thereof. On January 26, 2009, the state filed responses to the motions to dissolve the attachment.
On January 30, 2009, a hearing was held on several pending motions, including the motions to dissolve. On February 9, 2009, the court ordered that the motions to dissolve required an evidentiary hearing, and scheduled the motions for a consolidated hearing with the PJR application.
The consolidated hearing was begun on March 3, 2009. In conjunction with Fitzsimmons' testimony, the defendants and Wachovia renewed their motions to dissolve. After argument on the motions, the parties were given an opportunity to submit additional briefs. On March 11, 2009, the state filed supplemental responses. On March 12, 2009, the defendants and Wachovia filed their supplemental briefs.
DISCUSSION
The defendants have moved to dissolve or reduce the attachments obtained by the state on the ground that the state failed to submit an affidavit from a competent affiant as required by statute. Likewise, Wachovia has moved to dissolve the PJR and attachment on the ground that Fitzsimmons' affidavit is fatally defective, depriving the court of subject matter jurisdiction. The PJR application was supported by the affidavit of assistant attorney general Fitzsimmons. Both the defendants and Wachovia argue that the Fitzsimmons' affidavit is not valid because he lacked personal knowledge. The state objects to the motions to dissolve the attachment on the ground that the PJR application was accompanied by a validly executed affidavit from a competent affiant, in compliance with the statute and due process.
A prejudgment attachment may be challenged on the ground that the affidavit fails to satisfy the statutory requirements under General Statutes § 52-278c. The caselaw reflects challenges to prejudgment attachment affidavits based on: (1) an invalid affidavit; and, (2) an insufficient affidavit.
The insufficient affidavit issue was raised in Glanz v. Testa, 200 Conn. 406, 408-09, 511 A.2d 341 (1986). In Glanz, the court addressed "whether a trial court at a hearing on a motion to dissolve an ex parte prejudgment real estate attachment is limited to an examination of probable cause as presented in the supporting affidavit to the prejudgment remedy application." Id., 406-07. There, the plaintiff applied for and was granted an ex parte prejudgment real estate property attachment. Id., 408. The defendants moved to dissolve the attachment. Id. At the hearing, the trial court found that the plaintiff's affidavit was insufficient to establish probable cause as to damages, and granted the motion to dissolve. Id. The plaintiff was not allowed to offer additional evidence to support the damages claim. Id. In reversing the trial court, the Appellate Court held that "[e]ven if a court erred in granting an ex parte real estate attachment because of a defective affidavit, the plaintiff may still prove probable cause at a hearing to dissolve or modify the attachment." Glanz v. Testa, 4 Conn.App. 330, 331, 494 A.2d 600 (1985). The Supreme Court affirmed, and held that "a plaintiff may present evidence at a hearing on a motion to dissolve an ex parte prejudgment attachment in order to support an insufficient initial affidavit." Glanz v. Testa, supra, 408.
Since Glanz, the caselaw has been clear that a properly executed affidavit lacking sufficient facts to support probable cause for the prejudgment attachment or one with mistakes or inconsistencies is not necessarily fatal to a prejudgment attachment. See Doe v. Rapoport, 80 Conn.App. 111, 117, 833 A.2d 926 (2003) ("Even if we were to conclude that the affidavit alone was insufficient to support a finding of probable cause, the evidence presented at the hearing amply supported such a finding. Our Supreme Court has stated that `a plaintiff may present evidence at a hearing on a motion to dissolve an ex parte prejudgment attachment in order to support an insufficient initial affidavit.' Glanz v. Testa, 200 Conn. 406, 408, 511 A.2d 341 (1986). We see no reason why the plaintiff's in this case should not be permitted to use evidence at the hearing to buttress the facts contained in the affidavit"); Banks v. Vito, 19 Conn.App. 256, 264, 562 A.2d 71 (1989) ("That defective affidavit, however, was not fatal. Even if a court erred in granting an ex parte real estate attachment because of a defective affidavit, the plaintiff may still prove probable cause at a hearing to dissolve or modify the attachment"); Matza v. West, Superior Court, judicial district of Waterbury, Docket No. CV 99 0153851 (February 25, 2000, West, J.) ("Clearly, a properly executed affidavit supporting an application for prejudgment remedy lacking sufficient facts to show probable cause does not deprive this court of subject matter jurisdiction, where the plaintiff has complied with the requirements of General Statutes § 52-278c in submitting its prejudgment remedy application. Moreover, the plaintiff's application is not defective because, although the affidavit incorrectly states the outcome of a prior judgment, defects in the affidavit can be corrected by supplementary oral testimony produced at the probable cause hearing . . . [T]he plaintiff may prove probable cause at a hearing to sustain the validity of the prejudgment remedy application."); Connecticut Bank Trust Co., N.A. v. Wollenberg, Superior Court, judicial district of Hartford, Docket No. 385394 (January 8, 1991, Satter, J.) ("[I]f an ex parte prejudgment real estate attachment is granted on an insufficient affidavit, the subsequent findings of probable cause after a hearing cures the error and the prejudgment remedy may remain in effect"); Chase Manhattan Bank, N.A. v. Shea, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0102197 (May 18, 1990, Lewis, J.) ("The defendant claims that there are mistakes and inconsistencies in the affidavit of one of Chase's representatives, Peter Galbraith, which was used to procure the ex parte real estate attachment. Glanz v. Testa, 200 Conn. 406, 408-09, 511 A.2d 341 (1986), however, provides that a plaintiff may present evidence at a hearing in support of an insufficient initial affidavit").
In their motions to dissolve, the defendants and Wachovia argue that the state failed to submit a valid affidavit from a competent affiant, and, therefore, the court does not have subject matter jurisdiction. In addressing jurisdictional issues, the court must consider that "[f]acts showing that a particular judgment is rendered in compliance with all existing mandatory law in that regard are essential to jurisdiction to render a particular judgment." (Internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 434, 541 A.2d 1216 (1988). The failure to comply with statutory requirements deprives a court of subject matter jurisdiction. See Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn.App. 574, 582, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988).
The invalid affidavit issue was addressed in Lauf v. James, 33 Conn.App. 223, 635 A.2d 300 (1993). There, the plaintiff submitted a faxed affidavit acknowledged over the telephone. Id., 225. At the hearing on the PJR, the defendant moved to dismiss or strike the application, claiming "that because of the manner in which the purported affidavit was [acknowledged], it was not in fact an affidavit and did not satisfy the requirements of General Statutes § 52-278c(a)(2)." Id. The trial court denied the motion and, after hearing, found that there was probable cause and granted the prejudgment attachment application. Id., 225-26. After oral argument before the Appellate Court, the plaintiff "conceded that the purported affidavit did not constitute an affidavit and that we should proceed as if there had been no affidavit submitted with the application for prejudgment remedy." Id., 226.
In reversing the trial court, the Appellate Court addressed the subject matter jurisdiction issues relating to an application for a prejudgment attachment. Id., 226. "There are three separate elements of the jurisdiction of a court: jurisdiction over the person, jurisdiction over the subject matter, and jurisdiction to render the particular judgment . . . The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it . . . Pursuant to General Statutes § 52-278a et seq., the trial court has statutory authority to hear and grant applications for prejudgment remedies. Therefore, the trial court had subject matter jurisdiction to hear this application for a prejudgment remedy . . .
"The issue before us, therefore, is whether the trial court had jurisdiction to issue the order granting the prejudgment remedy."
"The remedy of attaching and securing a defendant's property to satisfy a judgment which the plaintiff may recover is unknown to the common law and is founded on and regulated by our statutory law . . . It follows that a party seeking an attachment must comply with the requirements of the statutes allowing such attachment as may be sought . . . General Statutes § 52-278b provides that `no prejudgment remedy shall be available to a person in any action at law or equity unless he has complied with the provisions of sections 52-278a to 52-278g, inclusive . . .' Except in certain instances not applicable to this case, one of the prerequisites to the granting of such a remedy is that the plaintiff or some competent person sign an affidavit stating facts sufficient to establish probable cause that judgment will be rendered in the matter in favor of the plaintiff. General Statutes § 52-278c(A)(b)." (Citations omitted; internal quotation marks omitted.) Lauf v. James, supra, 33 Conn.App. 226-28.
The court found that that the plaintiff failed to comply with the requirements of General Statutes § 52-278c based on the invalid affidavit. Id., 228. "Therefore, the trial court did not have [subject matter] jurisdiction to issue the order granting the prejudgment remedy." Id. The trial court order granting the application for a prejudgment remedy was reversed and the case was remanded with direction to deny the application. Id., 229.
There is a line of cases after Lauf, recognizing that the failure of a party seeking an attachment to file a valid affidavit, or any affidavit at all, deprives the court of subject matter jurisdiction because the statutory requirements have not been satisfied. See Regan v. Computer Plus Center, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0823990 (July 10, 2003, Booth, J.) [35 Conn. L. Rptr. 8] (" Lauf v. James, 33 Conn.App. 223 (1993), makes clear that in the absence of a valid affidavit, the trial court lacks jurisdiction to issue a PJR"); CT Page 5066 Giordano Construction Co., Inc. v. Novicelli Construction, Inc., Superior Court, judicial district of New Haven, Docket No. CV 98 0412074 (January 13, 1999, DeMayo, J.T.R.) (23 Conn. L. Rptr. 660) ("The defendant's claim of lack of jurisdiction is premised on the claim that the plaintiff's affidavit was, in fact, not an affidavit as required by Sec. 52-278c(a)(2). There is no question that this document was signed and sworn to, but it does not list the facts relied on to formulate its prayer for relief. Instead, it refers to facts as set forth in the accompanying unsigned complaint"); Tobin v. Doe, United States District Court, Docket No. 3:04-cv-952 (SRU), 2006 U.S. Dist. LEXIS 14567, *3-4 (D.Conn. March 15, 2006) ("Here, Tobin has not submitted an affidavit with his motion. Thus, Tobin has failed to comply with Connecticut General Statutes § 52-278c(a)(2)"); Davila v. Secure Pharmacy Plus, 329 F.Sup.2d 311, 313 (D.Conn. 2004) ("Here, Plaintiff has not submitted an affidavit with either motion, let alone an affidavit that sets forth facts sufficient to demonstrate that there is probable cause that a judgment will enter in favor of Plaintiff in the amount of the remedy sought, as required § 52-278c(a)(2). Instead, Plaintiff simply states that there is probable cause that a judgment will be rendered in his favor. Plaintiff has thus failed to comply with Connecticut General Statutes § 52-278c(a)(2)").
The court in Lauf also addressed the issue of whether an invalid affidavit could be cured through evidence presented at the probable cause hearing. In distinguishing between an insufficient affidavit and an invalid affidavit, the court noted: "Both Glanz and Lengyel, however, are clearly distinguishable from the present case. Glanz and Lengyel involved properly executed affidavits that were simply lacking in sufficient facts to show probable cause. Here, there was no affidavit. Since § 52-278c(a) requires that an affidavit be submitted with an application for a prejudgment remedy before a prejudgment remedy `shall be available to a person' under § 52-278b, it is only after an affidavit is submitted that the holdings in Glanz and Lengyel become applicable." Lauf v. James, supra, 33 Conn.App. 229. In other words, it is only after a valid affidavit is submitted that the party seeking an attachment is entitled to prove probable cause at a hearing.
Pursuant to Lauf, this court must address the threshold issue of whether the Fitzsimmons affidavit is valid. Under General Statutes § 52-278c(a), "any person desiring to secure a prejudgment remedy shall attach . . . (2) 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 . . ." In order to meet the statutory requirements, the affidavit must be properly executed; it must be sworn to by a competent affiant.
"Because the plaintiff's right to a PJR is founded and regulated by statute, the law mandates strict compliance with the authorizing statute . . . The statute is interpreted strictly because the right to attach property on mesne process, before the debt or claim has been established by judgment, is an extraordinary power given by statute against common right." (Citations omitted; internal quotation marks omitted.) Efthimiou v. Smith, Superior Court, judicial district of Fairfield, Docket No. CV 99 0367639 (January 27, 2000, Skolnick, J.).
The term "competent affiant" is not defined by the general statutes. In construing the term "competent affiant," "[w]e presume that the legislature intends sensible results from the statutes it enacts . . . Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results . . . Words in a statute must be given their plain and ordinary meaning unless the context indicates that a different meaning was intended." (Internal quotation marks omitted.) State v. Pommer, 110 Conn.App. 608, 614, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). The plain meaning rule, General Statutes § 1-1(a), provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." "As a rule, terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . Moreover, [i]t is a principle of statutory construction that a court must construe a statute as written . . . and not, through interpretation, supply omitted language." (Citations omitted; internal quotation marks omitted.) Griswold Airport, Inc. v. Madison, 289 Conn. 723, 733-34, 961 A.2d 338 (2008).
The plain and ordinary meaning of "competent affiant" must be examined. In Blue Cross Blue Shield of Connecticut v. Mike, 184 Conn. 352, 354, 439 A.2d 1026 (1981), the court noted that "[t]he word `competent' has a number of meanings. One of the definitions is `legally qualified;' Webster, Third New International Dictionary; or stated another way `possessing the requisite . . . legal qualifications.' Black's Law Dictionary (5th Ed.)." Webster, Third New International Dictionary defines "affiant" as "one that swears to an affidavit."
In Louring v. Kuwait Boulder Shipping Co., 455 F.Sup. 630 (D.Conn. 1977), the court examined the meaning of "competent affiant." There, after removal, the defendant moved to dissolve a garnishment imposed under General Statutes § 52-278e and to dismiss the action on the ground that the garnishment was improper and the court lacked subject matter jurisdiction. Id., 631. The defendant argued three grounds for the dissolution of the garnishment, including that "the application for the pre-judgment remedy [was] supported by an affidavit of plaintiff's counsel only . . . and plaintiff failed to satisfy the statutory requirement of `verification by oath of the plaintiff or of some competent affiant' that there is probable cause for the plaintiff's claim and that the defendant cannot be found in the state. Conn. Gen. Stat. § 52-278e(2)(A)." Id., 631-32. In rejecting this ground and holding that the plaintiff had satisfied the statutory requirements of § 52-278e(2)(a), the court found that "[a]n affidavit by plaintiff's attorney alleged that after investigation he believed the defendant could not be found in Connecticut. Plaintiff's attorney is a `competent affiant' for this limited purpose, especially in light of defendant's failure to controvert the substance of the allegation." (Emphasis added.) Id., 632.
In determining the meaning of "competent affiant," the use of affidavits in other civil contexts is informative. Affidavits are required when a motion for summary judgment is filed. Practice Book § 17-46 provides in relevant part that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Military affidavits are also filed in many civil cases. In Master Electric Supply Co., Inc. v. Keiser, Superior Court, judicial district of Fairfield, Docket No. CV 03 0406473 (May 11, 2004, Dewey, J.) (37 Conn. L. Rptr. 47), the court examined a military affidavit provided by a state marshal. The court noted that "[t]he term affidavit is not defined in the state's general statutes. However, an affidavit must contain a statement of personal knowledge." Id. In denying the motion for default judgment based on the state marshal's affidavit, the court found that "[i]n the present case the plaintiff, through his marshal, has supplied unsworn statements repeated in another's `affidavit.' The court cannot consider these inadmissible hearsay statements." Id.
It is axiomatic that an affiant must have personal knowledge of facts to be competent to testify about those facts. See C. Tait E. Prescott, Tait's Handbook of Connecticut Evidence (4th Ed. 2008) § 6.4, p. 301 ("A person who has no personal knowledge concerning facts about which he or she is asked to testify is not competent to testify about those facts. Although this is not a stated ground for incompetency in the Connecticut Code, it is implicit in Code § 6-3, which renders a witness incompetent if unable to receive correct sensory impressions. One has received no sensory impressions if one has no personal knowledge. A distinction should be drawn between a witness who has no personal knowledge and one who has only hearsay knowledge. A person who has no personal knowledge about the subject matter of his or her testimony, i.e., the person is guessing or speculating, is an incompetent witness as to that matter. A witness who is testifying to information that is not admissible in evidence, such as inadmissible hearsay or privileged evidence, is a competent witness as to that matter because he or she has some personal information, but the evidence is inadmissible because the evidence is incompetent").
Personal knowledge is not expressly defined in the general statutes or our rules of practice, but the phrase is commonly understood to mean knowledge gained through one's senses. One lacks personal knowledge if one has "received no sensory impressions." C. Tait E. Prescott, supra, § 6.4, p. 301. Merriam-Webster's Dictionary of Law (1996) defines "personal knowledge" as "direct knowledge of a matter or of the truth or falsity of an allegation . . . a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter — Federal Rules of Evidence Rule 602." The phrase is defined in Ballentine's Law Dictionary (3d Ed. 1969) as "[o]ne's own knowledge. With more accuracy, knowledge derived from the exercise of one's own senses . . . A person's direct knowledge of anything, as distinguished from that which he learns by hearsay."
Attorney Fitzsimmons is the sole affiant offered in support of the prejudgment attachments. The state did not attach any affidavits from consumers allegedly harmed by the defendants. After hearing, it is clear that evidence has not been introduced sufficient to support a finding that Fitzsimmons had personal knowledge of the matters in the affidavits regarding the consumer complaints. Before making out the affidavits, Fitzsimmons basically reviewed the consumer complaint files. The consumer complaints were unofficial documents on file in the office of the attorney general and the department of consumer protection, and thus raise authentication issues. See C. Tait E. Prescott, supra, § 9.4.5, pp. 626-27 ("The Code does not authenticate documents that are prepared by non-officials and that wind up in public offices. Thus, letters, complaints, data submissions, and the like from private individuals communicated to a public official and thereafter filed in that public office are not authenticated under the Code"). The consumers who filed the complaints had no business duty to report, as required to satisfy the business records exception to the hearsay rule. See C. Tait E. Prescott, supra, § 8.28.7, p. 550 ("Statements and information obtained from volunteers and other persons outside the `business' are not admissible even though they are included in a business record because it is the duty to report in a business context that provides the reliability to justify this hearsay exception"). The requirements of the residual exception to the hearsay rule, reasonable necessity and trustworthiness, were also not satisfied by Fitzsimmons reviewing the consumer complaint files. See C. Tait E. Prescott, supra, § 8.50, pp. 607-11; State v. McClendon, 248 Conn. 572, 585, 730 A.2d 1107 (1999) ("[t]he residual hearsay exceptions [should be] applied in the rarest of cases . . ."); State v. Dollinger, 20 Conn.App. 530, 540, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990) ("This [residual] exception is not to be treated as a broad license to admit hearsay inadmissible under other exceptions, and is to be used very rarely and only in exceptional circumstances").
Unlike Louring, Fitzsimmons' affidavits were not offered for a limited purpose. Rather, he was the sole affiant offered by the state. This is not a case where the PJR application included a valid affidavit from one or more of the consumers allegedly harmed by the defendants' conduct. Fitzsimmons' review of the consumer complaint files did not make him a competent affiant of the essential facts. An attorney may be a competent affiant for a prejudgment attachment. See Perez v. Lane, Superior Court, judicial district of Fairfield, Docket No. CV 04 4001316 (August 19, 2005, Doherty, J.) (39 Conn. L. Rptr. 821); Conaway v. Prestia, Superior Court, housing session at New Britain, Docket No. CVN 20476 (September 3, 1980, Spada, J.). Nevertheless, Fitzsimmons lacked personal knowledge of the essential facts supporting the prejudgment attachments. He did not possess the requisite legal qualifications to provide the affidavits in question. Fitzsimmons may not have filed appearances in these matters, but he is still employed as an assistant attorney general, not as an investigator, with the office of the attorney general, which is representing the commissioner of consumer protection. This is a situation which may very well raise issues with respect to the rules of professional conduct. "There are occasions when a witness is called and the testimony which he gives reveals that he has no competent knowledge of the subject, or that his knowledge of the subject matter has been gained through hearsay. Such testimony cannot properly be received and, if given, should be stricken out." 2 B. Holden J. Daly, Connecticut Evidence (2d Ed. 1988) § 123b, p. 1208. Based on the particular circumstances of the case, this is one of those occasions.
The courts have expressed a strong preference against attorney affiants. See Barnes v. Schlein, 192 Conn. 732, 737 n. 7, 473 A.2d 1221 (1984) ("The plaintiff's counsel filed his own affidavit — a practice we do not encourage and strongly disapprove . . ."); Farrell v. Farrell, 182 Conn. 34, 37 n. 2, 438 A.2d 415 (1980) ("An attorney should not ordinarily become a witness on behalf of his client in the same cause on a material matter. While the attorney is not disqualified from testifying, it is ethically improper"); Miller v. Urban, 123 Conn. 331, 333-34, 195 A. 193 (1937) ("On occasions, happily infrequent, when the matter of acting in the dual capacity of counsel and witness has been before us we have emphatically discountenanced the practice. When counsel becomes a witness in behalf of his client in the same cause on a material matter, not of a merely formal nature such as the attestation or custody of an instrument and the like, and not in an emergency to avoid defeat of the ends of justice but having knowledge that he would be required to be a witness in time to relinquish the case to other counsel, he violates a highly important rule of professional conduct now formally expressed in the Code of Professional Ethics, § 21, Practice Book, p. 16 . . . However, the great weight of authority in this country holds that the impropriety of an attorney so testifying is a matter of professional etiquette and not one of strict law, and that the admission of testimony under such circumstances is not reversible error. Reliance has been placed, instead, upon `the restraining influence of a professional education and of the opinion of the bar and bench, and the liability to discipline for persistent misconduct, as competent to suppress evils of this character.' . . . We have held in cases . . . that where an attorney has testified in a case in which he also appears as counsel the admission of that testimony does not constitute reversible error, and . . . that an attorney participating in the trial of a case is not thereby rendered legally incompetent to testify and if he offers to do so `the court could not treat him as disqualified, but the most it could do would be to remind him of the impropriety of his conduct'").
The prejudgment attachment statute, § 52-278c(a)(2), requires strict compliance. See William Beazley Co. v. Business Park Associates, Inc., 34 Conn.App. 801, 803-04, 643 A.2d 1298 (1994) (" `The right to attach property on mesne process is created and regulated by statute.' . . . Since 1973, the authority for pretrial property attachment has been spelled out in General Statutes §§ 52-278a through 52-278n. Because the plaintiff's right to a PJR is founded and regulated by statute, the law mandates strict compliance with the authorizing statute . . . In addition to this fundamental tenet of statutory law, General Statutes § 52-278b expressly enunciates that `no prejudgment remedy shall be available to a person in any action at law or equity . . . unless he has complied with the provisions of sections 52-278a to 52-278g . . ."). Contrary to the arguments set forth in the state's supplemental responses, the requirements to obtain a prejudgment attachment under § 52-278c(a)(2) are not somehow different because this is a sovereign enforcement action under CUTPA. See ATC Partnership v. Coats North America Consolidated, Inc., 284 Conn. 537, 545, 935 A.2d 115 (2007) ("[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended"). Fitzsimmons' affidavits were, in fact, not affidavits from a competent affiant. The state has not satisfied the statutory requirements under § 52-278c(a)(2). Therefore, the court does not have subject matter jurisdiction.
III CONCLUSION AND ORDER
For the above-stated reasons, the motions to dissolve the PJR and attachment filed by the defendants and Wachovia are granted. Having ruled in favor of the defendants and Wachovia on other grounds, the court does not need to address the constitutional issues raised by the movants. See Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 635 n. 15, 904 A.2d 149 (2006) ("[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case"). It is also unnecessary to address the status of the Fitzsimmons' affidavit in relation to the substitute affidavit issue.
On March 12, 2009, the state filed a motion for a stay pending appeal. This order is stayed pending a hearing on the state's motion, to be scheduled after the defendants and Wachovia have had an opportunity to respond to the motion pursuant to our rules of practice.