Opinion
No. CV06-5002506S
December 17, 2009
MEMORANDUM OF DECISION RE MOTION #143
A prominent plastic surgeon employs an office manager, becomes romantically involved with her, and later alleges that she embezzled $300,000 from his practice. A civil action is commenced claiming embezzlement, larceny, Connecticut Unfair Trade Practices Act violation, fraudulent concealment, negligent infliction of emotional distress, and intentional infliction of emotional distress.
The defendant office manager was arrested on 4/17/07 and charged with 9 counts of larceny in the 3rd degree which charges are still pending in Waterbury GA4. It is reputedly the oldest pending case in the GA. Those proceedings were not considered by the court in the rendering of this decision.
The instant motion seeks a prejudgment remedy (PJR) to attach property in Connecticut owned by the defendant office manager and her husband in order to secure any judgment which might be obtained. All parties, including the office manager's husband, were represented by competent counsel, thoroughly heard over four days of hearings, and filed detailed post-hearing memorandums. There were eight witnesses who testified, several under subpoena, including one forensic accounting expert, and a total of 53 exhibits introduced. The defendant office manager appeared through counsel but was not present during the four days of hearings. However, her defendant husband did appear and briefly testified that she was in Texas caring for their children.
The court did not draw any inference from her absence from the hearing.
At times, as the tangled facts indicated, the case appeared to be made for a television soap opera. Some of the more bizarre allegations, but certainly not an all inclusive list, include claims that: the plaintiff brought the law suit as revenge for the broken romantic relationship; the plaintiff diverted the missing funds to pay for his own art purchases; the plaintiff diverted cash funds so that he would not have to pay income taxes; the plaintiff made a criminal complaint against the defendant out of anger over his scorned love; the plaintiff was in fear of the defendant; the defendant became intimately involved with another man while she was still involved with the plaintiff; the plaintiff purloined an artifact from a local restaurant; the plaintiff was suspended by an area hospital because of alleged thievery of surgical equipment; the plaintiff often slept in his office; the plaintiff improperly used the defendant's address on his IRS tax returns; the plaintiff diverted cash money to investments he made together with the city's mayor; the plaintiff, even though he had insurance for employee theft, refused to make a claim to his insurance carrier for the alleged theft; the plaintiff terminated the defendant's services on several occasions only to have her return to work the next day; the plaintiff made complaints about the defendant to the FBI; the plaintiff's testimony was incoherent, nonsensical, and contradictory; the defendant terrorized the plaintiff's office staff; and the defendant was involved in a murder for hire plot in the State of Florida.
Interspersed throughout the proceedings were several legal questions including: the authority of the court to order an attachment of property located in the State of Texas; the effect of two different statutes of limitations; a motion in limine to preclude the testimony of the investigator used by the state attorney's office in the criminal proceeding pending against the office manager; a motion to intervene filed by the defendant office manager's husband; as well as countless objections to the testimony of witnesses and the introduction of exhibits.
Considering the fact that the case was over three years old, the PJR motion itself was almost two years old, the court repeatedly urged the parties to close the pleadings, schedule a pretrial, and set an early trial date in lieu of proceeding with a lengthy PJR hearing, all to no avail. They all appeared bent on costly, mutual self-destruction. During the proceedings, despite repeated reminders, counsel often lost sight of the fact that what was before the court was a PJR hearing and not the trial of the case. As is well known, the burden of proof in a PJR hearing is much less than that required in at a full scale trial.
According to statute, the defendant is entitled only to a limited review of the plaintiff's application for a prejudgment remedy. General Statutes § 52-278d(a) provides:
The defendant shall have the right to appear and be heard at the [prejudgment remedy] hearing. The hearing shall be limited to a determination of (1) whether or not 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 defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff, (2) whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance, (3) whether the property sought to be subjected to the prejudgment remedy is exempt from execution, and (4) if the court finds that the application for the prejudgment remedy should be granted, whether the plaintiff should be required to post a bond to secure the defendant against damages that may result from the prejudgment remedy or whether the defendant should be allowed to substitute a bond for the prejudgment remedy. If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court. The court shall not grant the prejudgment remedy if the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.
Our courts have interpreted the statute as follows. "The duty of the trial court at a hearing on an application for a prejudgment remedy is limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff's claim . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim." (Citation omitted; internal quotation marks omitted.) International Harvester Credit Corp. v. Gillis, 4 Conn.App. 510, 512, 495 A.2d 295, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). In Calfee v. Usman, 224 Conn. 29, 616 A.2d 250 (1992), the Connecticut Supreme Court outlined a flexible standard for determining whether there is probable cause to issue a prejudgment remedy of attachment. Id., 37. The court referred to the probable cause standard as that which "has regularly been upheld in the criminal law context." Id., 38.
In considering an application for a prejudgment remedy, the trial court is asked to determine whether there exists probable cause to believe that the judgment will be rendered in favor of the plaintiff in a trial on the merits, considering both legal and factual issues. General Statutes § 52-278d(a); Hoke, Inc. v. Circuits, Inc., 26 Conn.App. 804, 805, 602 A.2d 1075 (1992).
"The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim." New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 620, 569 A.2d 1098 (1990). "Civil probable cause constitutes a bona fide belief in the existence of facts essential under the law for the action and as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action." Tyler v. Schnabel, 34 Conn.App. 216, 641 A.2d 388, aff'd, 230 Conn. 735, 646 A.2d 152 (1994). The task of the trial court is essentially one of weighing probabilities; that task requires the exercise of broad discretion. Haxhi v. Moss, 25 Conn.App. 16, 19, 591 A.2d 1275 (1991). The court, in making its determination of probable cause, does so on the basis of the facts before it. Included in those facts are those contained in the affidavit required by General Statutes § 52-278c. Lauf v. James, 33 Conn.App. 223, 227-28, 635 A.2d 300 (1993).
"In ruling on a prejudgment remedy motion, the court must evaluate not only the plaintiff's claim but also any defenses raised by the defendant. Haxhi v. Moss, supra, 25 Conn.App. 20. A valid defense may defeat probable cause. Roberts v. Caton, 224 Conn. 483, 487 n. 4, 619 A.2d 844 (1993). "[A] good defense, such as infancy or the running of the statute of limitations, will be enough to show that there is no probable cause that judgment will be rendered in the matter in favor of the plaintiff." (Internal quotation marks omitted.) Augeri v. C.F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); see also Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 43 Conn.Sup. 83, 642 A.2d 762 [ 9 Conn. L. Rptr. 77].
It would serve no useful purpose to chronicle the testimony of the witnesses, review the import of dozens of exhibits, and discuss the merits of each party's position in this memorandum of decision. Suffice it to say that the court finds the plaintiff has established probable cause to have a PJR granted in the amount of $300,000. Accordingly, the plaintiff's motion is granted. The court further orders that the defendants may post bond in the amount of $300,000 to avoid attachment to their property. The court further orders that, upon request of the defendants, the plaintiff be required to post bond in the amount of $300,000 to secure the defendants against damages that may result from the prejudgment remedy. No other fees are awarded.