Opinion
CV165036915S
06-20-2017
York Hill Trap Rock Quarry Company v. Douglas Flemming, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISSOLVE PREJUDGMENT REMEDY (#113)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, York Hill Trap Rock Quarry Company (plaintiff), filed an Application for Prejudgment Remedy in connection with a proposed Complaint in two counts against Douglas P. Fleming, LLC and Douglas P. Fleming seeking to collect for unpaid building materials sold and delivered to Douglas P. Fleming, LLC. The first count is based on breach of contract, and the second count is based on quantum meruit. In addition, each count seeks to hold Douglas P. Fleming liable under his written guaranty to the plaintiff for the indebtedness of Douglas P. Fleming, LLC.
The plaintiff claims that on or about July 22, 2015, through and including August 28, 2015, it sold and delivered to Douglas P. Fleming, LLC building materials with an outstanding balance of $15,322.80. The plaintiff further claims that Douglas P. Fleming, LLC promised to pay the plaintiff, for the building materials sold, a reasonable price, interest on past due balances at the rate of 18%, costs of collection and a reasonable attorneys fee per a signed Credit Agreement, and that Douglas P. Fleming personally guaranteed the indebtedness of Douglas P. Fleming, LLC to the plaintiff pursuant to a signed Credit Agreement.
Lastly, the plaintiff claims that Douglas P. Fleming, LLC and Douglas P. Fleming have neglected and refused to pay for said building materials. The plaintiff filed an application for a prejudgment remedy to protect any judgment that may be rendered in its favor, in the amount of $26,500.00. An evidentiary hearing on the plaintiff's application was held on October 12, 2016, to which the defendants failed to appear. On October 12, 2016, after the evidentiary hearing, the court (Abrams, J.), granted the application and ordered that " the plaintiff may attach to the value of $26,317.58 the goods or estate of either or both defendants." (Docket Entry No. 100.37.)
On January 6, 2017, the self-represented party, Douglas P. Fleming filed a motion to dissolve the PJR on grounds that, 1) the court granted the PJR without the defendants present, allowing the plaintiff to attach the property of either or both in the amount of $26,317.58; 2) there is an action pending between the parties to this one captioned Fleming v. Suzio Sand and Gravel et al., Superior Court, judicial district of New Haven, Docket No. CV-16-5006708-S, where damages are sought against the plaintiff in this action in excess of $100,000; 3) The plaintiff attached the property of defendant, Douglas P. Fleming, individually, however, the defendant is an improper party to this action; 4) pursuant to General Statutes § 52-278k, the court should dissolve the PJR; 5) the defendant raised for the first time at the hearing that he posted a bond for materials in performance of the project and that the plaintiff not only knew the bond existed, but it had a copy of said bond prior to seeking a PJR, and in fact has made a claim on the bond; and 6) the plaintiff failed to disclose to the court at the initial PJR hearing that it in fact had a bond that would pay any claim and that the plaintiff had in fact filed a claim.
The defendant filed a motion to strike simultaneous with his motion to dissolve in which he claims, inter alia, that the defendant, Douglas P. Fleming, individually is an improper party because the plaintiff's complaint impermissibly seeks to " pierce the corporate veil." The court will address the issues raised in the motion to strike only to the extent the defendant claims that he is an improper party to this action.
In addition to the above stated grounds in support of the motion to dissolve, the defendant also argues that the court who granted the PJR lacked subject matter jurisdiction on two grounds. First, (1) the plaintiff's application contains a customer printout maintaining that the amount owed was to the L. Suzio Construction Company (see 100.31), not York Hill Trap Rock Quarry Company, and therefore the plaintiff lacked standing. Second, General Statutes: " § 52-278 requires that a plaintiff 'serve and return to court the writ, summons and complaint within thirty days thereof of a prejudgment remedy after the court grants it. The record reflects that the prejudgment remedy was granted October 12, 2016 (Entry #100.37) but was not actually returned until November 14, 2016 (entry 106.00). The failure to return the Complaint within 30 days commands that . . . the court shall dismiss the prejudgment remedy . . .' and by extension, this action." (Def. Mot. to Dismiss, Docket Entry No. 148.) The motion to dissolve the PJR was heard on March 28, 2017 and April 3, 2017. The parties were ordered to submit post-trial briefs on or before May 3, 2017.
The defendant filed a motion to dismiss on March 28, 2017, on grounds that the court lacked subject matter jurisdiction. The grounds raised in support of the defendant's motion to dismiss are identical to the jurisdictional grounds raised in the motion to dissolve.
DISCUSSION
I
Subject Matter Jurisdiction
A
Standing
The defendant moves to dissolve the PJR on grounds that the court that granted the PJR lacked subject matter jurisdiction over PJR because the plaintiff lacked standing. Practice Book § 10-31 provides that a motion to dismiss may assert lack of subject matter jurisdiction. " A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellaman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). " [T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66, cert. denied, 261 Conn. 938, 808 A.2d 1135 (2002).
" 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 . . . In other words, [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 334-35, 857 A.2d 348 (2004).
" Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matters of the controversy." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 567-68, 775 A.2d 284 (2001). " When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 568, 775 A.2d 284. " Standing is established by showing that the party . . . is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by [the challenged action]." Cimmino v. Household Realty Corp., 104 Conn.App. 392, 395, 933 A.2d 1226 (2007), cert. denied, 285 Conn. 912, 943 A.2d 470 (2008).
" The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003), superseded by statute on other grounds as recognized by Flanagan v. Blumenthal, 100 Conn.App. 255, 260, 917 A.2d 1047 (2007). " [I]t is the burden of the party who seeks exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . ." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).
The defendant claims that the plaintiff lacked standing at the time the PJR was granted because the plaintiff's affidavit submitted in support of the application for the PJR relied exclusively upon a customer printout that was attached to the affidavit. The defendant claims that although the credit application, which was signed by the defendant Fleming on behalf of the LLC, and as a guarantor, names three companies, the plaintiff, York Hill, the L. Suzio Asphalt Company, Inc. and the El Suzio Concrete Company, Inc., the customer printout indicates that the account belonged to the " The L. Suzio Company, Inc." which is none of the entities named in the credit application. The defendant therefore claims that the court lacked subject matter jurisdiction at the time it granted the PJR because the plaintiff lacked standing and therefore, the motion to dissolve should be granted.
In its proposed complaint attached to the PJR application, the plaintiff alleges that on or about July 22, 2015, through and including August 28, 2015, it sold and delivered to Douglas P. Fleming, LLC building materials with an outstanding balance of $15,322.80. The plaintiff further claims that Douglas P. Fleming, LLC promised to pay the plaintiff, for the building materials sold, a reasonable price, interest on past due balances at the rate of 18%, costs of collection and a reasonable attorneys fee per a signed Credit Agreement, and that Douglas P. Fleming personally guaranteed the indebtedness of Douglas P. Fleming, LLC to the plaintiff pursuant to a signed Credit Agreement. The complaint alleges facts demonstrating that the plaintiff has a real legal interest in this action and, thus, is a proper party to this lawsuit, and therefore has standing to invoke judicial resolution of the dispute. Accordingly, the defendant's motion to dissolve for lack of subject matter jurisdiction on standing grounds is denied.
B
Service
The defendant Douglas P. Fleming argues that the prejudgment remedy should be dissolved because the plaintiff failed to comply with General Statutes § 52-278j(a) by not serving and returning to court within thirty days of the granting of the PJR, the writ, summons, and complaint for which the prejudgment remedy was granted, and therefore, the court lacks subject matter jurisdiction over the PJR.
" Our Supreme Court implicitly has treated a party's alleged noncompliance with § 52-278j as a jurisdictional issue that can be raised at any time during the pleadings, thereby resembling a challenge to subject matter jurisdiction. See Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183 (1982); see also Sammarco v. Kostowski, Superior Court, judicial district of Fairfield, Docket No. CV-09-5027402, 2010 WL 3667747 (August 18, 2010). 'In undertaking this review [of a motion to dismiss challenging subject matter jurisdiction], [the court is] mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.' (Internal quotation marks omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011) . . .
" A party may seek prejudgment relief, such as an attachment on property, to secure the anticipated judgment. General Statutes § 52-278a et seq. That party submits a proposed unsigned copy of the writ of summons and complaint; General Statutes § 52-278c(a); but the civil action is not yet initiated. See Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 560-61, 944 A.2d 329 (2008). It is not until after the prejudgment remedy proceeding is completed that the applicant serves a signed writ, summons and complaint, and returns them to court to officially commence the action. See id., at 555-56, 559, 944 A.2d 329. " [T]he language of the prejudgment remedy statutes, [General Statutes] § 52-278a et seq., in several instances . . . makes it clear that proceedings for prejudgment remedy applications and civil actions are separate and distinct, with a prejudgment remedy application generally preceding the filing of the civil action . . . [I]n addition to the differences regarding the process for initiating these two legal proceedings, the purpose of filing a civil action is fundamentally different from the purpose of obtaining a prejudgment remedy. A prejudgment remedy application is brought as a prelude to the filing of a civil action, and is meant to determine whether security should be provided for any judgment ultimately recovered by the plaintiff if he or she is successful on the merits of the civil action. A civil action, in contrast, resolves the merits of the parties' claims, and can be filed irrespective of whether the plaintiff was successful in his or her prior pursuit of a prejudgment remedy.' Id., at 560-61, 944 A.2d 329." Adler v. Rosenthal, 163 Conn.App. 663, 675-76, 134 A.3d 717.
Section 52-278j(a) provides: " 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." " [T]he plain language of § 52-278j provides for the dismissal or withdrawal of an application for a prejudgment remedy unless the plaintiff, within thirty days from the date the application is granted or denied, serves and returns to court the writ of summons and complaint in the civil action for which the prejudgment remedy was allowed or disallowed. General Statutes § 52-278j(a) and (b) . . . [A] motion seeking to dismiss a prejudgment remedy is nevertheless an appropriate vehicle with which to alert the court of a plaintiff's failure to comply with § 52-278j(a). If a court determines that the plaintiff [has not complied with § 52-278j], the court lacks authority to do anything but to 'dismiss' . . . the prejudgment remedy." Adler v. Rosenthal, supra, 163 Conn.App. 677.
In addition, " [section] 52-278j(a) is to be strictly construed. 'Because the plaintiff's right to a [prejudgment remedy] is founded and regulated by statute, 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). 'Dismissal of the plaintiff's application for a prejudgment remedy is mandatory because the plaintiff did not serve the defendant within thirty days of the court's decision on its application . . . This result is harsh, especially in this case where the matter was continually and aggressively litigated . . .' Cornfield Associates, L.P. v. Cummings, Superior Court, judicial district of Hartford, Docket No. CV-10-5034745-S (February 7, 2013, Berger, J.) (55 Conn.L.Rptr. 493, 493, )." Connecticut Light & Power Co. v. Paradigm Healthcare PF Torrington, LLC et al., Superior Court, judicial district of New Haven, Docket No. CV-13-5034681-S (November 3, 2014, Burke, J.) [59 Conn.L.Rptr. 264, ].
The plaintiff's application for a PJR was granted by the court, Abrams, J., on October 12, 2016. The writ, summons and complaint were served on the defendants, Douglas P. Fleming LLC and Douglas P. Fleming on November 4, 2016, and returned to court on November 14, 2016. The marshal's return of service was not filed with the court until November 15, 2016. Thirty days from the granting of the PJR was November 11, 2016. November 11, 2016, was a Friday, Veterans Day, state and national holiday, and on which day court was closed for business. General Statutes § 51-347c provides: " Last day for filing next business day if clerk's office closed. If the last day for filing of any matter in the clerk's office of the Superior Court falls on a day on which such office is closed, the last day for such filing shall be the next business day." Thus, the next day court was opened for business was Monday, November 14, 2016.
It is well established that " [w]hen interpreting a statute, '[the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, it seek[s] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.' (Internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 147, 989 A.2d 593 (2010). General Statutes § 1-2z requires th[e] court first to consider the text of the statute and its relationship to other statutes to determine its meaning. If, after such consideration, the meaning of the statutory text is plain and unambiguous and does not yield absurd or unworkable results, we cannot consider extratextual evidence of the meaning of the statute. E.g., Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009). Only if we determine that the text of the statute is not plain and unambiguous may we look to extratextual evidence of its meaning, such as 'the legislative history and circumstances surrounding its enactment . . . the legislative policy it was designed to implement, and . . . its relationship to existing legislation and common law principles governing the same general subject matter . . .' (Internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, supra, 297 Conn. at 399, 999 A.2d 682. The proper test to determine whether the meaning of the text of a statute is ambiguous is 'whether the statute, when read in context, is susceptible to more than one reasonable interpretation.' (Internal quotation marks omitted.) Id. " Potvin v. Lincoln Service and Equipment Co., 298 Conn. 620, 631-32, 6 A.3d 60 (2010).
In accordance with § 1-2z, the court begins its analysis with the text of the statute. The defendant argues that the marshal's return of service, which was not filed with the court until November 15, 2016, renders service improper under the statute. The court disagrees. The plain language of § 52-278j(a) does not require the marshal's return of service be filed with the court within thirty days of the granting of the PJR. The statute specifically states that the " writ, summons and complaint" must be " served and returned to court" within thirty days of the granting of the PJR. The marshal's return of service was filed on November 15, 2016 [Entry #107.00] and is evidentiary of the service of process. The return of service states that the marshal made the attachment on November 3, 2016, and then served the legal process on both defendant Fleming and the LLC defendant on November 4, 2016. The placing of the attachment took place twenty-two days after the PJR order and the service of process took place twenty-three days after the PJR order. As previously noted, the writ, summons and complaint were returned to court on November 14, 2016, which was the next day court was opened for business after November 11, 2016, a legal holiday. Accordingly, the plaintiff has met the time requirements for service under the statute.
In addition, limiting § 52-278j(a) to filing the writ, summons and complaint is consistent with our statutes that define legal process. " Civil actions shall be commenced by a legal process consisting of a writ of summons, or attachment, describing the parties, the court to which it is returnable, the return day, the date, time and place for filing an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." General Statutes § 52-45a.
" Our statutory definition of a legal process is harmonious with the definition in Black's Law Dictionary. Judicial process [i]n a wide sense . . . may include all the acts of a court from the beginning to the end of its proceedings in a given cause, but more specifically it means the writ, summons, mandate, or other process which is used to inform the defendant of the institution of proceedings against him and to compel his appearance, in either civil or criminal cases.' Black's Law Dictionary (5th Ed. 1979)." Fedor v. Hawley, Superior Court, judicial district of Fairfield, Docket No. CV065003192S, (April 12, 2007, Tyma, J.).
" The foregoing statute [§ 52-45a] specifically defines a writ of summons as one type of legal process. The service of 'a complaint in an ordinary civil action requires the use of a writ of summons directed to a sheriff or other authority competent to make service of process . . . Indeed, personal service by such an authority without a writ of summons has long been regarded as a nullity, because without such a writ the sheriff is no more than a delivery person.' Tolly v. Department of Human Resources, 213 Conn. 13, 20, 621 A.2d 719 (1993)." Fedor v. Hawley, Superior Court, judicial district of Fairfield, Docket No. CV065003192S (April 12, 2007, Tyma, J.) [43 Conn.L.Rptr. 233, ]. Accordingly, the plaintiff has satisfied the service requirements of § 52-278j(a) to confer subject matter jurisdiction over the PJR on the court. The court, therefore, will not grant the defendant's motion to dissolve on jurisdictional grounds.
II
Improper Party--Piercing the Corporate Veil
The defendant moves to dissolve the PJR on grounds that the plaintiff's complaint " improperly joins Douglas Fleming to the LLC and fails to allege facts that would justify piercing the corporate veil." The defendant Douglas Fleming appears to be arguing that the PJR order is improper because it seeks to attach his individual property and as a member of the defendant LLC, the plaintiff cannot do this because it has failed to allege sufficient facts to " pierce the corporate veil." The defendant argues that as a member of the defendant LLC, he cannot be held individually liable for debts incurred by members on behalf of the company. The defendant cites to General Statutes § 34-133(a) in support of his argument, which provides in relevant part: " [A] person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company."
A reading of the plaintiff's complaint demonstrates that the plaintiff has not attempted to pierce the corporate veil. The plaintiff's claim against the defendant, Douglas Fleming is based on his " guarantee[] of the payment of the indebtedness of the Defendant Douglas P. Fleming, LLC to the Plaintiff'; Pl. Prop. Writ, Sum. and Compl., counts one and two ¶ ¶ 3, pp. 2-3; Aff. of Leonardo Suzio; Ex. B, Credit Agreement; Pl. Compl., counts one and two ¶ ¶ 3, pp. 2-3; and not against defendant Douglas Fleming solely by reason of being a member of the defendant LLC.
Moreover, the guaranty was admitted into evidence as plaintiff's exhibit 2 at the PJR hearing. Thus, because the plaintiff is not attempting to " pierce the corporate veil, " but instead is seeking recovery against the defendant on a contract of guaranty, the defendant's claim that he is an improper party to this lawsuit cannot support his motion to dissolve the PJR. Accordingly, the court will not grant the motion to dissolve on this ground. The defendant, Douglas P. Fleming is a proper party to this action.
III
Court's Reliance on Plaintiff's Affidavit in Support of PJR
At the initial hearing on March 28, 2017, on the defendant's motion to dissolve, the defendant raised an additional ground in support of his motion that he did not raise in his motion filed with the court. The defendant argued that there was no factual basis for the issuance of the PJR because Exhibit A to the affidavit filed in support of the application for the PJR, failed to expressly identify the plaintiff, York Hill Trap Rock Quarry Company. What the defendant is seemingly trying to argue, is that the affidavit which was submitted in support of the PJR application was insufficient to establish probable cause, and the court therefore improperly relied upon that affidavit in issuing the attachment.
" General Statutes § 52-278b states . . . that no prejudgment remedy shall issue unless there has been compliance with Sections 52-278a through 52-278g inclusive. Section 52-278c(a)[(2)] requires that a PJR application contain an affidavit setting forth facts sufficient to show there is probable cause that a judgment in the amount of the prejudgment remedy sought . . . [or more] . . . will be rendered in the matter in favor of the plaintiff." (Emphasis added; internal quotation marks omitted.) Smith v. Andrews, Superior Court, judicial district of Stamford/Norwalk, Docket No. X08 CV 03 0198246 (September 7, 2005, Adams, J.).
In the present case, the plaintiff submitted an affidavit of Leonardo H. Suzio, President of York Hill. In the affidavit, Suzio avers that he has personal knowledge of the facts contained in the affidavit, that on or about July 22, 2015, through August 28, 2015, the plaintiff sold and delivered to the defendant LLC, building materials at reasonable prices per a Customer Inquiry Report, which is attached to the affidavit as Exhibit A. Suzio further avers that the defendant LLC promised to pay the plaintiff for the building materials sold, a reasonable price, interest on past due balances at the rate of 18%, costs of collection and a reasonable attorneys fee per the Credit Agreement which is also attached to the affidavit as Exhibit B. Suzio avers that the defendant, Douglas P. Fleming guaranteed the indebtedness of the defendant, LLC to the plaintiff and that despite demand, the defendants have refused to pay the unpaid principal balance due to York Hill in the amount of $15,322.80. Suzio further avers that there are no known defenses, counterclaims, or set-offs to the plaintiff's claims, and that there is probable cause that 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. Defendant Fleming argues that because the Customer Inquiry Report does not specifically state that the outstanding amounts due are due to York Hill, said affidavit does not set forth facts " sufficient to show there is probable cause that a judgment in the amount of the prejudgment remedy sought . . . [or more] . . . will be rendered in the matter in favor of the plaintiff." The defendant Fleming argues that the court, therefore, improperly relied upon the affidavit to issue the attachment.
The court does not agree that the affidavit is insufficient. The affidavit provides sufficient facts to establish that the plaintiff and defendants entered into an agreement whereby the plaintiff sold and delivered to the defendant LLC building materials, that there remains an outstanding balance, that the defendant LLC refused to pay, and that the defendant Fleming guaranteed payment. Although the Customer Inquiry Report does not expressly indicate that the unpaid balance of $15,322.80 is due to York Hill, Suzio's testimony in the affidavit connects the unpaid principal balance to the claim of York Hill against the defendants. Furthermore, in granting the PJR order, the court did not rely solely on the affidavit. At the hearing on October 12, 2016, Michael Ecke, the comptroller for York Hill, testified to the amount of the debt owed to the plaintiff by the defendants, contained in the Customer Inquiry Report, which was also introduced into evidence as plaintiff's Exhibit 1. F.T.R., PJR Hearing, October 12, 2016. Ecke also testified as to the terms of the Credit Agreement signed by the defendant LLC, and the contract of guaranty signed by the defendant Fleming, which was introduced into evidence at the PJR hearing as plaintiff's Exhibit 2. Id. Upon inquiry by the court, Ecke explained the reference to " The L. Suzio Co., Inc." on the Customer Inquiry Report, and provided further testimony establishing that the principal amount shown on the report is owed by the defendants to the plaintiff, York Hill. Id. Ecke further testified as to the terms of the Credit Agreement, namely, how the defendants were to pay the debt, and in the event of default, the cost of collection, interest and reasonable attorneys fees. Id. Ecke testified as to the amount that the plaintiff sought as a prejudgment remedy based upon the unpaid principal balance, costs, interests and reasonable attorneys fees. Id. Based upon the evidence submitted, and testimony heard, the court entered a PJR order in the amount of $26,317.58.
Even if this court were to find that the affidavit was insufficient, which it does not, there was sufficient evidence, independent of the affidavit, presented at the PJR hearing, for the court to find probable cause. " In Self-Service Sales Corp. v. Heinz, supra, 1 Conn.App. 188, the court held that an affidavit need not stand alone in determining probable cause for a prejudgment attachment. A prejudgment remedy is available to an applicant if a judge determines that there is sufficient probable cause . . . This is the first hurdle which must be met if a prejudgment remedy is to be granted, whether after a hearing or ex parte . . . It is however, the hearing, required under § 52-278c . . . that decides the issue. Id. The court held, '[t]he affidavit need not stand alone in determining probable cause. It merely invokes the statutory mechanism. If this were not so, there would be no reason to provide a hearing. The statute could, if the legislature so desired, provide that the hearing should be limited to determining the sufficiency of the affidavit alone.' Id. : Further, the court in Banks v. Vito, 19 Conn.App. 256, 562 A.2d 71 (1989), held that a defective affidavit in a prejudgment remedy attachment was not fatal. Id., 264. '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.' Id. accord Glanz v. Testa, 200 Conn. 406, 408, 511 A.2d 341 (1986). The plaintiff's application is not defective because . . . defects in the affidavit can be corrected by supplementary oral testimony produced at the probable cause hearing. Under the holdings of Self-Service Sales Corp. v. Heinz, supra, 1 Conn.App. 188, and Banks v. Vito, supra, 19 Conn.App. 256, the plaintiff may prove probable cause at a hearing to sustain the validity of the prejudgment remedy application." Matza v. West, Superior Court, judicial district of Waterbury, Docket No. CV 99 0153851 (February 25, 2000, West, J.).
Moreover, the defendants failed to appear at the PJR hearing to hear the evidence presented against them and to cross examine Ecke or question any exhibit introduced into evidence by the plaintiff. Both the defendant LLC and defendant Fleming in failing to appear, in effect waived their right to contest the evidence presented at the PJR hearing. Accordingly, the court will not grant the defendant's motion to dissolve on grounds that the affidavit submitted in support of the PJR application was insufficient.
IV
Set-off
In his motion to dissolve dated January 6, 2017, the defendant Fleming states that " there is an action pending between the parties to this one captioned Fleming v. Suzio Sand and Gravel et al., [Superior Court, judicial district of Windham, Docket No. CV-16-5006708-S], where damages are sought against the plaintiff in this action in excess of $100,000." Def Mot. to Dissolve. It appears that the plaintiff is claiming the Fleming v. Suzio Sand and Gravel et al. case as a set-off to the plaintiff's debt against defendant Fleming. The defendant Fleming commenced an action in the Windham judicial district against Suzio Sand and Gravel, the plaintiff in this case, York Hill, and Leonardo Suzio, individually (Fleming action). The case was transferred to the New Haven judicial district and consolidated with the present action. The original complaint dated November 7, 2016, alleges tortious interference, breach of contract, failure to meet industry standards and a CUTPA violation pursuant to General Statutes § 42-110b. Damages claimed against all three defendants is in excess of $100,000. On April 24, 2017, and April 26, 2017, plaintiff Fleming in the Fleming action filed a request for leave to amend in which he adds a myriad of additional parties and the additional claims of anticipatory repudiation, fraud, negligent misrepresentation, and abuse of process. The defendants in the Fleming action have objected to the plaintiff's request for leave to amend and that objection is still pending. The court has reviewed the pleadings in the Fleming action, both the original complaint and the proposed amended complaint, to determine if the defendant Fleming's claim of set-off, as grounds for dissolving the PJR in the present action, is viable.
" 'Setoff is the right to cancel or offset mutual debts or cross demands . . . The concept of setoff allows [parties] that owe each other money to apply their mutual debts against each other, thus avoiding the absurdity of making A pay B when B in fact owes A.' (Internal quotation marks omitted.) Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 84 Conn.App. 688, 703, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004). 'A set-off is made where the defendant has a debt against the plaintiff arising out of a transaction independent of the contract on which the plaintiff sues, and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiff's recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance.' (Emphasis omitted; internal quotation marks omitted.) Bank of Boston Connecticut v. Avon Meadow Associates, 40 Conn.App. 536, 541, 671 A.2d 1310, cert. denied, 237 Conn. 905, 674 A.2d 1329 (1996) . . .
" As to the issue of mutuality, '[t]o constitute mutuality required for the setoff, the debts must be due to and from the same persons in the same capacity and right and of the same kind and quality . . . Setoff may be employed only when a defendant requests that the court set off a judgment against a debt owed to the defendant by the plaintiff . . . It is the defendant's burden to demonstrate its right to setoff by affirmatively and adequately alleging such a claim in the pleadings.' (Citations omitted; internal quotation marks omitted.) Mariculture Products Ltd. v. Those Certain Underwriters at Lloyd's of London, supra, 84 Conn.App. 688, 704, 854 A.2d 1100.
" 'Traditionally, the distinction between a setoff and a counterclaim centers around whether the claim arises from the same transaction described in the complaint. If the claim involves a debt which is mutual and liquidated, even though it arises from separate transactions, it is characterized as a setoff . . .' (Citations omitted; internal quotation marks omitted.) 225 Associates v. Connecticut Housing Finance Authority, 65 Conn.App. 112, 121, 782 A.2d 189 (2001)." PPI Technologies, Inc. v. Madison Polymeric Engineering, Inc., Superior Court, judicial district of New Haven, Docket No. CV-116024647S (June 16, 2015, Wilson, J.) [60 Conn.L.Rptr. 527, ]. Here, the defendant Fleming's claims set forth in the original complaint in the Fleming action are against three defendants: Suzio Sand and Gravel, York Hill and Leonardo Suzio. Moreover, the proposed amended complaint filed in the Fleming action seeks to add a number of additional defendants and additional claims. The defendant's claims have not been segregated or delineated as to any particular defendant. The claim for the damages in the Fleming action does not describe the damages in a manner which would clarify whether all, some, or none of the damages are attributed to the plaintiff in this action. Thus, this court cannot discern if any debts are due, to whom and from whom, and whether the debt claimed by Fleming in the Fleming action to be owed by York Hill, was in the same capacity and right and of the same kind and quality as the debt claimed by the plaintiff, York Hill against Fleming in the present action.
" Regarding the issue of whether the debt the defendant claims in the setoff is liquid, the Supreme Court has defined a liquidated debt as follows, '[w]hen a debtor knows precisely how much he is to pay and to whom he is to pay it, his debt is a liquidated one . . . An amount claimed to be due is a liquidated sum when it is susceptible of calculations from factors which are or ought to be in the possession or knowledge of the party to be charged.' (Internal quotation marks omitted.) Forster v. Gianopoulos, 105 Conn.App. 702, 707, 939 A.2d 1242 (2008). `Unliquidated damages, on the other hand, are those which are not yet reduced to a certainty in respect to amount, nothing more being established than the plaintiff's right to recover; or such as cannot be fixed by a mere mathematical calculation from ascertainable data in the case.' (Internal quotation marks omitted.) Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 166, 475 A.2d 310 (1984)." PPI Technologies, Inc. v. Madison Polymeric Engineering, Inc., supra, Superior Court, Docket No. CV-116024645, . The debt in the defendant Fleming's claim for setoff in the present case is not liquidated. As previously stated, the defendant in the Fleming action has alleged damages against all three defendants and has not specified a specific amount he is claiming against York Hill. Accordingly, the defendant Fleming has not established set-off as a ground for granting his motion to dissolve the PJR.
V
General Statutes § § 52-278e; 52-278k
At the continued hearing on the motion to dissolve on April 3, 2017, the court requested that additional issues be briefed by the parties. The court requested the parties to brief whether § 52-278e(d) is applicable in the present case; under what circumstances does § 52-278k apply to this case; and what are the procedural requirements for substitution of a bond for a prejudgment remedy.
General Statutes § 52-278e provides in relevant part: " Allowance of prejudgment remedy without hearing. Notice to defendant. Claim form. Subsequent hearing and order. Attachment of real property of municipal officers. (a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d 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."
Section 52-278e(d) provides that: " A defendant may move to dissolve or modify a prejudgment remedy allowed pursuant to this section by any proper motion or by return to the Superior Court of a signed claim form that indicates, by the checking of a box on the claim form, whether the claim is an assertion of a defense, counterclaim, set-off or exemption, an assertion that any judgment that may be rendered is adequately secured by insurance, an assertion that the amount of the prejudgment remedy is unreasonably high, a request that the plaintiff be required to post a bond to secure the defendant against any damages that may result from the prejudgment remedy, or a request that the defendant be allowed to substitute a bond for the prejudgment remedy." The provisions of subsection (d) are subject to the provisions of subsection (a) which is limited to the situation where the court issues a prejudgment remedy without a hearing when exigent circumstances exists as enumerated in subsection (a). Thus, § 52-278e(d) does not apply to the present case.
In this case, the plaintiff's Application for Prejudgment Remedy was made pursuant to § 52-278c which requires a hearing to which " the defendant shall have the right to appear and be heard." General Statutes § 52-278d(a). In addition to the documents that must be filed with the application, and the requirement of service upon the defendant in accordance with § 52-278c(a)(1)-(4), subsection (e) provides that: " An application for a prejudgment remedy shall be accompanied by 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 RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, THAT YOU MAY WISH TO EXERCISE CONCERNING THIS APPLICATION FOR A PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE THE RIGHT TO A HEARING: (1) TO OBJECT TO THE PROPOSED PREJUDGMENT REMEDY BECAUSE YOU HAVE A DEFENSE TO OR SET-OFF AGAINST THE ACTION OR A COUNTERCLAIM AGAINST THE PLAINTIFF OR BECAUSE THE AMOUNT SOUGHT IN THE APPLICATION FOR THE PREJUDGMENT REMEDY IS UNREASONABLY HIGH OR BECAUSE PAYMENT OF ANY JUDGMENT THAT MAY BE RENDERED AGAINST YOU IS COVERED BY ANY INSURANCE THAT MAY BE AVAILABLE TO YOU; (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 YOU BE ALLOWED TO SUBSTITUTE A BOND FOR THE PREJUDGMENT REMEDY SOUGHT; AND (4) TO SHOW THAT THE PROPERTY SOUGHT TO BE SUBJECTED TO THE PREJUDGMENT REMEDY IS EXEMPT FROM SUCH A PREJUDGMENT REMEDY." In accordance with this provision of the statute, and upon receipt of the Application for Prejudgment Remedy, the clerk's office issued a form JD-CV-53, Notice of Application for Prejudgment Remedy/Claim for Hearing to Contest Application or Claim Exemption (#100.30). This notice contained " Section II-'Notice to Defendant' " with the date and time of the initial hearing on the Application and the statutorily required language as set forth in § 52-278c(e). The notice also contained " Section III-Defendant's Claim and Request for Hearing (To be completed by Defendant)" which allows the defendant to request a hearing to contest the application, claim an exemption or request the posting or substitution of a bond. See General Statutes § 52-278c(g).
The application and notice were served on the defendant Fleming, however, the court record does not show that the defendant Fleming returned the form and requested a hearing. The defendant did not make the court aware, prior to the PJR hearing, that he wanted a hearing to present any defense, counterclaim, set-off or exemption or to be allowed to substitute a bond for the prejudgment remedy. More importantly, the defendant Fleming failed to exercise his right to " appear and be heard at the hearing." On October 12, 2016, after hearing evidence, the court granted the PJR allowing the plaintiff " to attach to the value of $26,317.58 the goods or estate of either or both defendants." (PJR Order, Docket Entry #100.37.) On January 6, 2017, almost three months after the granting of the PJR, the defendant Fleming filed the present motion to dissolve.
In a similar case, Lia v. Pacelli, Superior Court, judicial district of Fairfield, Docket No. 321837 (September 1, 1995, Levin, J.) [15 Conn.L.Rptr. 122, ], " the plaintiff filed an application for a prejudgment remedy with the court together with an order for hearing and notice. The assistant clerk signed the order and designated that a hearing would be held on the application on April 10, 1995, that service be made on the defendant on or before April 4, 1995 and that return of service be made to the court on April 7, 1995. Service was made on the defendant on April 3, 1995. On April 10, 1995, the court held a hearing and granted the plaintiff's application. The order authorizing the prejudgment remedy purported to allow the plaintiff to attach to the value of $35,000.00 real property of the decedent. The defendant did not appear at the hearing.
" On July 21, 1995, an attorney filed an appearance for the defendant and, on August 18, 1995, [four months after the prejudgment remedy had been issued] made a request for a hearing on the form (JD-CV-53) entitled 'NOTICE OF APPLICATION FOR PREJUDGMENT REMEDY/CLAIM FOR HEARING TO CONTEST APPLICATION OR CLAIM EXEMPTION.' The defendant checked the boxes on the form signifying that she claims 'a defense, counterclaim, set-off, or exemption' and 'that the amount sought in the application for prejudgment remedy is unreasonably high.' " Id. The court in Lia denied the defendant's request for a hearing holding that: " [a]n order granting or denying a prejudgment remedy after a hearing is accorded a certain degree of finality under the law. General Statutes § 52-278l; see Srager v. Koenig, 36 Conn.App. 469, 651 A.2d 752 (1994); Ahlers v. Russo, Superior Court, Judicial District of New London, No. 520385, (1994). The defendant waived her right to contest that attachment by not doing so on the date on which, as she was notified, a hearing was held, nor indeed for several months thereafter. Cf. Pantlin & Chananie Dev. Corp. v. Hartford Cement & Bldg. Supply Co., 196 Conn. 233, 240, 492 A.2d 159 (1985) (negligence of party not grounds for vacating a judgment). General Statutes § 52-278e(d), on which the defendant relies, applies only to prejudgment remedies granted without a hearing and is, therefore, inapplicable here." Id.
The court in Lia also determined that neither could the defendant successfully invoke the provisions of § 52-278k which provides in relevant part: " The court may, upon motion and after hearing, at any time modify or vacate any prejudgment remedy granted or issued under this chapter upon the presentation of evidence which would have justified such court in modifying or denying such prejudgment remedy under the standards applicable at an initial hearing." " This statute confers very broad power on the trial court to 'vacate any prejudgment remedy granted . . . under this chapter . . .' The use of the word 'may' in the statute connotes that the exercise of that broad power is discretionary. Rosick v. Equipment Maintenance & Service, Inc., 33 Conn.App. 25, 34, 632 A.2d 1134 (1993). Especially since an order pursuant to General Statutes § 52-278k is not appealable pursuant to General Statutes § 52-278l; Gibbs v. Mase, 11 Conn.App. 289, 293, 526 A.2d 7 (1987); the court will not afford the relief sought where the moving party failed without reasonable excuse even to attend the hearing that was afforded her. Pantlin and Chanante Development Corp. v. Hartford Cement and Bldg. Supply Co., supra, 196 Conn. 240." Lia v. Pacelli, supra, Superior Court, Docket No. 321837, .
Similar to the plaintiff in Lia, the defendant in the present case was served notice of the application for the PJR and the notice of the PJR hearing, however without a reasonable explanation, he failed to appear at the hearing. The defendant Fleming had every opportunity to contest the hearing, by showing up, submitting evidence, cross examining the witnesses, contesting the evidence the plaintiff submitted in support of the application, and presenting any defenses, counterclaims or set-offs. He failed to do so. Nor did the defendant complete and file the claim form to contest the PJR application or, if applicable, to claim an exemption. As the court in Lia decided, because an order granting or denying a prejudgment remedy after a hearing is accorded a certain degree of finality, this court will not afford the relief sought by the defendant Fleming where he failed, without reasonable excuse, to attend the hearing that was afforded him.
Even if this court were to look beyond the defendant Fleming's failure to appear at the PJR hearing, and apply § 52-278k, which allows the court, in its discretion, to modify and/or reopen a PJR order, this court's discretion must be guided by the principles enunciated by Judge Lavine in Apex Environmental, Inc. v. Stanwicks, Superior Court, judicial district of Hartford, Docket No. CV 97 0575395 S (May 7, 1998, Lavine, J.) [22 Conn.L.Rptr. 151, ] (emphasis added). In Apex, the defendant, pursuant to § 52-278k, sought an order to dissolve or reduce the prejudgment remedy obtained. The defendant's ground for dissolving the prejudgment remedy was that the witness who testified in support of the prejudgment remedy testified falsely, and therefore, consequently, his testimony should have been disregarded in all respects, and as result, the attachment should have been dissolved. Noting that the defendant's application to dissolve the attachment was governed by § 52-278k, the court stated: " The issue is significant where, as here, the application for dissolution may be viewed, in essence, to be a motion to reopen the hearing held on December 22, 1997, irrespective of how it is titled.
" The need to preserve the resources of the parties, as well as judicial resources, militates in favor of requiring a moving party to demonstrate that there is good cause to reopen a hearing to permit additional evidence to be heard. So does the desirability of preventing parties from seeking unfair tactical advantage through time-consuming and costly piecemeal litigation, and piecemeal attacks on the evidence presented or the credibility of the witnesses who have testified. Because the obtaining of a prejudgment remedy is merely a preliminary stage in a case, there is an important need to ensure that this stage be undertaken with a clear sense that prejudgment remedy proceedings will not devolve into episodic litigation or a full blown trial. Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). That would substantially undercut the limited thrust of our prejudgment remedy statutes and undermine their essential nature. It would also undercut accordingly 'a certain degree of finality' to these preliminary proceedings, to use Judge Levin's language from Lia v. P[a]celli, 15 Conn.L.Rptr. 122, Casebase No. 321837, (Superior Court) (Levin, J., 1995).
" To be sure, a court should be flexible in reaching any determination as to whether fairness requires a second hearing in connection with a motion to dissolve or reduce a prejudgment remedy granted after an adversary hearing has already been held and a ruling made. No simple mechanistic test can replace the careful exercise of judicial discretion in light of all present facts and circumstances. But given the above stated concerns, logic and common sense require that a party seeking to reopen a probable cause hearing should have to make a convincing showing that a hearing is necessary before requiring an adversary, and the court, to devote further time and resources to a matter which has already been heard and which if not settled, will again be litigated in a full trial setting . . .
" Considering all relevant factors[, ] [the court] conclude[d] that in determining whether a second hearing is required, the court should at a minimum consider the following factors:
(1) Whether the moving party can demonstrate clearly and convincingly that he or she intends to produce new evidence or new information; and (2) Whether the moving party can demonstrate clearly and convincingly that any such new evidence or new information could not reasonably have been presented at the initial hearing; and (3) Whether the moving party can demonstrate clearly and convincingly that if the new evidence or information is believed, there is a reasonable probability that the prejudgment remedy would be dissolved, or reduced, by the court.
" If the moving party cannot clearly demonstrate all of the above to a court's satisfaction, then [the court] conclude[d] that in most instances, absent unusual circumstances, a request for a hearing should not be granted." (Emphasis added.) Apex Environmental, Inc. v. Stanwicks, supra, Superior Court, Docket No. CV-97-0575395 S, .
During hearing and argument on the motion to dissolve, the defendant Fleming alluded to evidence of defective product, a payment bond and a counterclaim in the consolidated case Fleming v. Suzio Sand and Gravel et al., Superior Court, judicial district of New Haven, Docket No. CV-16-5037829-S. The complaint in that case alleges causes of action sounding in breach of contract, product liability and CUTPA, all causes of action that would have existed at the time of the PJR hearing. Thus, even if the defendant Fleming could meet the requirements for a new hearing under (1) and (3) as discussed in Apex, he cannot meet the burden under (2) which requires him to clearly and convincingly demonstrate that such new evidence or information could not have been presented at the initial hearing. See also, Silva v. Frausini, Superior Court, judicial district of New London, Docket No. 522036 (August 19, 1993, Hurley, J.) [9 Conn.L.Rptr. 636, ] (court found that " evidence" referred to in the language " the presentation of evidence" in § 52-278k " must be new evidence, not evidence that was available at the time of the original hearing. Otherwise, parties where property is attached could bring any number of motions to modify or vacate"). Accordingly, the defendant's motion to dissolve pursuant to § 52-278k is denied.
VI
Substitution of Bond § 52-304
During the hearing on the defendant's motion to dissolve the prejudgment attachment, defendant Fleming introduced evidence of what he claimed to be a payment bond posted for labor and materials that the plaintiff claims it sold and delivered to the defendant. The purported payment bond introduced is not signed by the contractor, who is identified in the bond document as Douglas P. Fleming, LLC. Def. Ex. E; see also, Pl. Ex. 1.
General Statutes § 52-304 et seq. sets forth the procedure by which a defendant may substitute a bond to dissolve a prejudgment attachment. General Statutes § 52-304 provides: " When any estate is attached, or any debt or effects taken by process of foreign attachment, the defendant may apply in writing to the court in which such action may be pending, or any judge thereof, to dissolve the attachment lien upon the substitution of (a) a bond with surety or (b) a lien on any other property of the defendant which has an equal or greater net equity value than the amount secured by such attachment." General Statutes § 52-305 sets forth the form for the application. If a defendant chooses to make an application to substitute a bond, section 52-306 requires that reasonable notice of the application to dissolve the attachment by substitution of the bond be in writing, signed by the defendant or his attorney and be served upon the plaintiff or his attorney and the officer serving the attachment. The notice must state that the defendant will apply to a judge to dissolve the attachment, upon the substitution of a bond with surety. The notice must also state the court to which the application is made and the date and time of the application.
" [General Statutes § § ]52-307 and Section 52-308 provide for the substitution of a bond in lieu of an amount directed to be attached." Kevalis v. Cook, Superior Court, judicial district of Waterbury, Docket No. UWYCV034002528S (April 11, 2006, Eveleigh, J.) [41 Conn.L.Rptr. 173, ]. " It is settled law in Connecticut that a bond in the statutory form, given to obtain release of an attachment, is a substitute for the property and not a substitute for the lien of the attachment. The bond takes the place of the property attached. Perry v. Post, 45 Conn. 354; Schunack v. Art Metal Novelty Co., 80 A. 290, 84 Conn. 331; Republic Rubber Co. v. Foster, 111 A. 839, 95 Conn. 551; McCann-Camp Co., Inc., v. Globe Indemnity Co., 126 A. 687, 101 Conn. 541. The lien of the attachment remains in legal contemplation over the property through the bond, or over the bond as representing the property." New York Plumbers' Specialty Co. v. Werebitzik, 104 Conn. 280, 132 A. 454 (1926).
Section 52-307 provides for a hearing on the amount and sufficiency of the bond, and states that " [a]ll persons interested may be heard in relation to the amount and sufficiency of the bond or the substitute lien offered by the defendant. Such amount shall equal the value of the estate which the process directed to be attached, unless the action is founded in tort for the recovery of unliquidated damages, and it appears to the authority to whom the application is made that the amount so required to be attached is excessive, in which case he may take a bond or substitute lien for such sum as he deems reasonable." " [Section] 52-308 provides for the precise form which must be used for any bond [to substitute the attachment]." Kevalis v. Cook, supra, Superior Court, Docket No. UWYCV034002528S, In this case, the payment bonds that were introduced into evidence at the hearing on the motion to dissolve do not meet the standards and requirements set forth in § 52-304 et seq. Nor are the payment bonds in substantially the form set forth in § 52-308. The payment bonds do not name the plaintiff, York Hill nor do they describe " THE CONDITION of [the obligation of the bond]" namely, that York Hill brought an action against the defendant, the court to which such action is returnable, the amount of damages demanded, the description of the attachment granted by the court on October 12, 2016, and that the surety will be liable to the plaintiff for the amount of any judgment rendered in the plaintiff's favor. Thus, the purported payment bonds are not in the form prescribed by the statute. " Pursuant to the case of Atlas Garage & Custom Builders, Inc. v. Hurley, 167 Conn. 248, 257-58, 355 A.2d 286 (1974) the prejudgment remedy statute is to be strictly construed. Therefore, there must be strict adherence to the form of any bond before a court can approve that bond [and it be substituted to dissolve an attachment]." Kevalis v. Cook, supra, Superior Court, Docket No. UWYCV034002528S, .
General Statutes § 52-308 provides: " The bond shall be taken to the plaintiff and be substantially in the following form: KNOW ALL MEN BY THESE PRESENTS: That . . . of . . . as principal, and . . . of . . . as surety, are holden and firmly bound jointly and severally unto of in the penal sum of dollars, to which payment well and truly to be made, we hereby bind ourselves, our heirs, executors and administrators, firmly by these presents. THE CONDITION of this obligation is such that, whereas the said . . . has brought an action against the said . .., said action being returnable to the . . . court for . . . judicial district on the first Tuesday of . . . 20 . .., demanding dollars damages, the writ being dated at, on the day of, A.D. 20 . . . and signed by as . .., and by direction of said writ an attachment has been placed upon property of the said . . . as follows: . . . Now, therefore, if the said . . . shall pay any judgment that may be recovered against him in such action not exceeding the amount of . . . dollars (the amount of damages demanded by said writ), or in default of such payment, shall pay to the officer having the execution issued on such judgment, on demand, the actual value of the interest; not exempt from attachment and execution, of the said . . . in said attached property at the time of said attachment, not exceeding said amount of . . . dollars, then his bond shall be void, but otherwise in full force and effect."
Section 52-309 provides that " [t]he authority dissolving the attachment, if it is other than the court to which the writ is returnable, shall certify his doings upon the application, and forthwith return the application, bond or certified copy of the lien and other proceedings to the court to which the writ is returnable, where they shall be kept on file." Where the attachment has been dissolved, because a bond has been properly substituted, § 52-310 provides that the defendant may file a certificate of dissolution of attachment, and section 52-311 provides that " [t]he court before which any action may be pending, in which such a bond or substitute lien has been given, shall, on application of either party and notice to the other, order that a new bond of a licensed surety company or some responsible inhabitant of this state or a new lien be substituted in lieu and discharge of the original one; and, if such order is made on application of the plaintiff, shall render judgment in his favor by default, if such substitution is not made within such time as the court may appoint."
General Statutes § 52-310 provides that " [t]he defendant, if the attachment dissolved is of real estate, may file with the town clerk of the town where the real estate is situated a certificate of such dissolution signed by the plaintiff of record or by his attorney of record or by the authority making the same; if the attachment is of shares in any corporation, he may leave a like certificate with the officer of the corporation with whom a copy of the attachment was left in service; and, if the attachment is of debts or effects in the hands of a garnishee, he may leave a like certificate with the garnishee; and no such corporation shall be held liable to the defendant for refusing to transfer the shares attached or to pay the dividends due thereon, and no such garnishee shall be held liable to the defendant for refusing to pay the debt or to return the effects attached in his hands, until such certificate has been so left."
In the present case, the defendant Fleming did not follow the prescribed statutory procedures for substitution of a bond for the existing prejudgment attachment. He did not file an application in writing to substitute a bond to dissolve the prejudgment attachment nor give written notice to the plaintiff that he was making an application to substitute a bond. In addition, the purported payment bonds that were submitted into evidence do not comply with the form prescribed by § 52-308. Moreover, the defendant Fleming had every opportunity to make such an application prior to the PJR hearing, and chose not to do so. Accordingly, as the defendant Fleming has failed to properly make an application to substitute a bond to dissolve the existing prejudgment remedy in accordance with the relevant statutory provisions, the motion to dissolve on grounds that there is an existing surety bond is denied.
CONCLUSION
For all of the foregoing reasons, the defendant's motion to dissolve is denied.