Opinion
No. CV 08-4007186S
December 11, 2009
MEMORANDUM OF DECISION RE #156 PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY HEARING
On April 18, 2008, the plaintiff, DPF Financial Holdings, LLC, filed a multiple-count complaint against the defendants, Amy Lyons, Valley View Riding Stables, "Mae Lyons Stone House Real Estate," and the Town of Killingly Planning and Zoning Department. On July 21, 2009 the court (Riley, J.) denied a motion to dismiss as to defendants Amy Lyons, Mae Lyons and Valley View Riding Stables, and granted the motion as to Stone House Real Estate and Michael Sobieniak on the basis that they had not been properly joined as parties to the action. On October 1, 2009, the plaintiff filed an application for a prejudgment remedy seeking to secure the sum of $500,000. On October 23, 2009, defendants Amy Lyons, Mae Lyons and Valley View Riding Stables filed an objection to the plaintiff's application for a prejudgment remedy. Therein, the aforementioned defendants assert, in part, that the plaintiff cannot avail itself of a prejudgment remedy because it has failed to comply with the provisions of General Statutes §§ 52-278a to 52-278g. The matter was heard at the short calendar on October 26, 2009. At short calendar the defendants specifically argued that the plaintiff has failed to comply with the provisions of General Statutes §§ 52-278a to 52-278g since it did not provide the defendants with proper service/notice and did not submit an affidavit along with its application for a prejudgment remedy. Accordingly, the defendants argue that the plaintiff's application for a prejudgment remedy and hearing must be denied.
General Statutes § 52-278b provides, in relevant part, 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 . . ." (Internal quotation marks omitted.) Ford Motor Credit Co. v. B.W. Beardsley, Inc., 208 Conn. 13, 18 n. 4, 542 A.2d 1159 (1988). See Cahaly v. Benistar Property Exchange Trust Co, Inc., CT Page 1144 73 Conn.App. 267, 272, 812 A.2d 1 (2002). Pursuant to General Statutes § 52-278c(a), "[i]ndividuals seeking a prejudgment remedy must attach an unsigned writ, summons and complaint to the following documents: (1) a prejudgment remedy application; (2) an affidavit stating facts sufficient to show that probable cause exists that a judgment will be rendered in the action in favor of the plaintiff; (3) a form of order that a hearing be held; and (4) a form of summons for the prejudgment remedy hearing." Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 558, 944 A.2d 329 (2008).
In the present case, the defendants argue that they did not receive proper service of the prejudgment remedy application and request for a hearing. "General Statutes § 52-278m provides: `Whenever a prejudgment remedy is sought under the provisions of sections 52-278h or 52-278i against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action.'" (Internal quotation marks omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 384 n. 9, 949 A.2d 450 (2008). Simply, § 52-278m permits the plaintiff to serve the documents "in the same manner as any motion" if the defendant has already filed a general appearance in the action, as the defendants have in the present case. The plaintiff, therefore, did not have to have the documents personally served on the defendants in this action. Moreover, the "[c]ourts have also held that pursuant to § 52-278h[a] plaintiff does not have to attach an unsigned writ, summons, and complaint to the required documents [when an] action has already been commenced . . ." The Doyle Group v. Alaskans for Cuddy, Superior Court, judicial district of Litchfield, Docket No. CV 08 5004014 (September 16, 2008, Roche, J.) ( 46 Conn. L. Rptr. 269). Based on the aforementioned, the court finds that the plaintiff's prejudgment remedy application does not require personal service upon the defendants, rather such application is properly served if done so in the same manner as any other motion in this action.
The defendants also contend that the plaintiff's prejudgment remedy application must be denied on the basis that the plaintiff failed to attach an affidavit with its application to the court. In Lauf v. James, 33 Conn.App. 223, 635 A.2d 300 (1993), our Appellate Court examined the issue of whether an affidavit must be submitted along with an application for prejudgment remedy in order for the trial court to order and conduct a hearing on an application for a prejudgment remedy. In Lauf, the Court noted that, pursuant to General Statutes § 52-278c, "one of the prerequisites to the granting of [a prejudgment 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." Id., 227-28. Based on the aforementioned, the Court held that if a "plaintiff fail[s] to comply with the requirements of General Statutes § 52-278c . . . the trial court [does] not have jurisdiction to issue [an] order granting the prejudgment remedy." Id., 228. See Koslik v. Sponzo, Superior Court, judicial district of Hartford, Housing Session, Docket No. CVH 7040 (June 22, 2007, Bentivegna, J.); and Block v. Statewide Grievance Committee, 47 Conn.Sup. 5, 9, 771 A.2d 281 [ 29 Conn. L. Rptr. 54] (2000). With regard to the present matter, the court finds that the plaintiff has failed to attach any sort of affidavit to its prejudgment remedy application and, therefore, has failed to set forth sufficient facts to establish probable cause that a judgment will be rendered in the matter in favor of the plaintiff. Since the plaintiff has failed to comply with the requirements of General Statutes § 52-278c, this court does not have jurisdiction to issue an order granting the prejudgment remedy.
Based on the foregoing, the court hereby denies the plaintiff's application for a prejudgment remedy and request for a hearing.