Opinion
No. HHD-CV-92-0513128-S
April 23, 2008
ORDER RE MOTION FOR NEW JUDGMENT
Before the court is a motion for a new judgment pursuant to General Statutes § 52-351. The movant is D.A.N. Joint Venture, L.P. ("D.A.N.") a successor of the original judgment creditor Fleet Bank, N.A. ("Fleet Bank"), by assignments. Judgment entered in favor of Fleet Bank against the defendants, Warren Martel and Arrow Glass, Inc., on November 2, 1992 in the principal amount of $197,893.32 and costs of $254.60 for a total judgment of $198,147.92. A bank execution issued on January 21, 1993 and was returned unsatisfied. A second execution issued on March 1, 2007 included costs of $35.00 and was returned unsatisfied.
General Statutes § 52-351 provides: New judgment to include unsatisfied costs of execution. Any court issuing an execution on which the costs thereon are not wholly satisfied, upon written motion of the plaintiff and such notice to the judgment debtor as the court rendering the original judgment deems reasonable, may render a new judgment which may include the prior judgment and costs and all unsatisfied costs of the first execution, and the original judgment shall thereupon be vacated.
Fleet Bank, N.A. assigned all rights, title and interest in the November 2, 1992 judgment against Warren Martel and Arrow Glass, Inc. to The Cadle Company on May 13, 2005. The Cadle Company assigned rights, title and interest to D.A.N. Joint Venture, L.P. on October 11, 2006.
The movant is seeking a new judgment in the amount of $495,404.80. This includes the original judgment of $198,147.92 plus interest in the amount of $297,221.88 and costs of the second execution in the amount of $35.00. The court rejects D.A.N.'s contention that section 52-351 provides for postjudgment interest. It provides only for costs and all unsatisfied costs of the first execution. If the legislature intended Section 52-351 to provide for interest it would have explicitly stated such as it did in General Statutes § 52-350(f).
General Statutes § 52-350(f) provides: Enforcement of money judgment. Costs, fees and interest. A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under section 52-352a, 52-352b, 52-352d, or 52-361a, or any provision of the general statutes or federal law. The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with (1) all statutory costs and fees as provided by the general statutes, (2) interest as provided by chapter 673 on the money judgment and on the costs incurred in obtaining the judgment, and (3) any attorneys fees allowed pursuant to section 52-400c.
Because the plaintiff seeks costs of the second execution and because the statute authorizes only costs of the "first" execution, no costs will be included in the new judgment. There is no existing order awarding plaintiff postjudgment interest. The award of postjudgment interest pursuant to Conn. Gen. Stat. § 37-3a is within the trial court's discretion. To date, D.A.N. has made no showing that it is entitled to postjudgment interest. Accordingly, no postjudgment interest will be included in the new judgment.
See O'Hara v. State, 218 Conn. 628, 643 (1991) (holding that a decision to deny or grant postjudgment interest is an equitable matter lying within the discretion of the trial court).
See O'Hara, 218 Conn. at 643 (holding that the allowance of interest pursuant to Conn. Gen. Stat. § 37-3a is dependent upon whether the detention of the money is wrongful under the circumstances).
The motion for a new judgment is granted; the prior judgment is vacated; and a new judgment may enter in favor of D.A.N. in the amount of $198,147.92.