Opinion
(10507)
Argued January 16, 1992
Decision released March 3, 1992
Application for a prejudgment; real estate attachment, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, O'Neill, J., denied the application, and the plaintiff appealed to this court. Reversed; further proceedings.
Leny K. Wallen-Friedman, with whom was Eric Lukingbeal, for the appellant (plaintiff).
Katharine Goodbody, with whom, on the brief, were Mark Mininberg and Julie Harrison, for the appellee (defendant).
This is an appeal by the plaintiff from the denial of its application for a prejudgment remedy. The plaintiff seeks an order from the trial court directing the issuance of a prejudgment attachment, in the amount of $300,000, against certain real property owned by the defendant.
In determining whether to grant an application for a prejudgment remedy, pursuant to General Statutes 52-278d, "the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . . `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 plaintiffs claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court's role in such a hearing is to determine probable success by weighing probabilities.' . . . Moreover, this weighing process applies to both legal and factual issues." (Citations omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156, 595 A.2d 872 (1991). On appeal, our review is limited to "`whether the determination of the trial court constituted clear error.'" Id., 157.
General Statutes 52-278d (a) provides: "The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiff's claim. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, then the prejudgment remedy applied for shall be granted as requested or as modified by the court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j."
In denying the plaintiff's application, the trial court found that it did not have "enough here to enter a $300,000 judgment," even though it accepted all of the testimony presented by the plaintiff. The trial court, therefore, held the plaintiff to a higher standard than is required by General Statutes 52-278d.