Hull v. Joyner

Full title: DARREN HULL v. ECCLESIATES JOYNER ET AL

Court: Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Aug 25, 2006

2006 Ct. Sup. 15556 (Conn. Super. Ct. 2006)

Opinion

No. CV 05-5000206-S

August 25, 2006

MEMORANDUM OF DECISION ON AMENDED APPLICATION FOR PREJUDGMENT REMEDY

ALFRED J. JENNINGS, JUDGE.

Procedural and Factual Background

This is an action for intentional assault causing alleged personal injuries for which the plaintiff seeks money damages from the defendant Ecclesiastes Joyner, and a fraudulent transfer action against the defendant Ecclesiastes Joyner and his wife the defendant Carolyn R. Joyner relating to Mr. Joyner having quitclaimed to Mrs. Joyner all his interest in their jointly-owned home about two months after the alleged assault. The first count of the Amended Complaint alleges that on March 27, 2004 the defendant Ecclesiastes Joyner intentionally drove his automobile into the plaintiff while the plaintiff was standing in front of his own car in the Yerwood Community Center parking lot in Stamford, violently knocking the plaintiff to the ground. The second count alleges that following the vehicular "knock down," the defendant Ecclesiastes Joyner got out of his car and assaulted the plaintiff by punching him with his fists. As a result of these two alleged assaults the plaintiff claims to have suffered personal injuries, some or all of which may be permanent in nature, causing him pain and anguish, permanent impairment of function, medical treatment and expenses, and loss of income from employment. The third count alleges that the transfer of Ecclesiastes Joyner's interest in their house to his wife Carolyn R. Joyner by quitclaim deed dated June 29, 2004 was made without his receiving reasonably equivalent value to avoid having to pay damages arising out of his wrongful behavior toward the plaintiff.

Now before the court is the plaintiff's Amended Application for Prejudgment Remedy dated November 14, 2005 seeking to attach the defendants' residence at 34 Buena Vista Street, Stamford, Connecticut now standing in the sole name of the defendant Carolyn R. Joyner as a result of the quitclaim deed of June 29, 2004. The court heard evidence on May 1, 2006 consisting of the testimony of the plaintiff and of both defendants, and various exhibits. Post-hearing memoranda of law have been filed.

Discussion and Findings

A plaintiff seeking a prejudgment remedy pursuant to Conn. Gen. Stat. § 52-278a et seq. must prove that there is probable cause that a judgment in the amount of the prejudgment remedy sought or in a greater amount, taking into account any defenses, counterclaims, or set-offs, will be rendered in favor of the plaintiff and that payment of any judgment that will be rendered against the defendant is not adequately secured by insurance. Conn. Gen. Stat. § 52-578d. The probable cause burden has been stated as follows: "The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence, and judgment, under the circumstances, in entertaining it." Pero Building Company v. Smith, 6 Conn.App. 180, 183 (1986). "Probable cause, for purposes of the PJR statutes is a flexible, common sense standard . . ." Weicker v. Granatowski, Docket No. 398167, Superior Court, Judicial District of Fairfield at Bridgeport, (September 2, 2003, Levin, J.); 35 Conn. L. Rptr. 333.

The hearing is not intended to be a trial on the merits . . . The plaintiff is not required to establish her case by a fair preponderance of the evidence, but need only show the probable validity of her claim . . . The task of the trial court is essentially one of weighing probabilities; that task requires the exercise of broad discretion . . .

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.

(Citations omitted.) McCahill v. Town County Associates, Ltd., 185 Conn. 37, 39 (1981).

In this case there was undisputed testimony that the automobile insurance carrier for the vehicle operated by the defendant Ecclesiastes Joyner denied coverage for this incident (presumably because of the allegations of intentional conduct). The court finds after hearing the evidence and reviewing the plaintiff's affidavit and the hearing exhibits that the plaintiff has established probable cause for liability of the defendant Ecclesiastes Joyner for assaulting the plaintiff by automobile and by punching. That brings the court to the question of the $60,000 in damages claimed by the plaintiff. A finding of probable cause of damages sustained must be based on reasonable subordinate facts. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 585 (1977). Although he alleges serious and permanent injuries, including a claim of "mild traumatic brain injury" the plaintiff has submitted no medical reports or bills for treatment. The police report of the incident (Exhibit 1) confirms that the plaintiff complained of lacerations abrasions and bruises to his arms and knees, intense pain to the back of the left thigh, a small laceration to the middle of the forehead, a bruised left eye, a small laceration to his right cheek, bloodshot eyes, head, back and neck pain, and dizziness, for which he drove himself to the Stamford Hospital for emergency treatment. He testified that he was released from the hospital after 2 1/2 hours, and went home to bed for a week and took unspecified pain medication. He claims to have seen a Dr. Allen twice and to have gone for physical therapy for about six months. He also claims that he missed work on two jobs for 2-2 1/2 months. He claims that his primary job was as a driver for Michael's Garbage where he earned $450 per week and that his other job was as a desk receptionist for 22 hours a week at the Yerwood Community Center where he earned $10 per hour. Taking him at his word, he would have lost about $6,700 in wages over about a ten-week period. Aside from conclusory statements of injuries in his affidavit which track verbatim the allegations of the complaint, the plaintiff has presented no evidence of any medical diagnosis of any injury, no evidence of bills for treatment or even a statement of their amount, no verification of any permanent impairment, and no evidence of his claimed traumatic brain injury. Under these circumstances, even under the relatively low burden of proving probable cause, the court finds probable cause for no more than $30,000 in damages. The court grants the plaintiff's application for a prejudgment remedy in the amount of $30,000 against the assets of the defendant Ecclesiastes Joyner. But since he is no longer a record owner of the home at 34 Buena Vista Street, the attachment against Mr. Joyner's property cannot be recorded against that real property.

That leaves for determination the plaintiff's request for an attachment of the house now owned by Mrs. Joyner on the theory that the transfer to her on June 29, 2004 was fraudulent as to the plaintiff. Actually, Mrs. Joyner had owned a half interest in the house since December 20, 2000 when both defendants purchased it from Madeline M. King for $265,000. (Ex. 2.) The fraudulent transfer claim, then, would apply only to the half interest quitclaimed by Mr. Joyner to Mrs. Joyner on June 29, 2004 (Ex. 3), following the March 27, 2004 assault upon the plaintiff.

Under Connecticut common law,¹ a party alleging a fraudulent transfer or conveyance "bears the burden of proving either (1) that the conveyance was made and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated." (Citation omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140-41 (2002). In order to prevail on such a claim, the elements of fraudulent conveyance ". . . must be proven by a heightened standard of proof, that of clear, precise, and unequivocal evidence." (Internal quotation marks omitted; citation omitted.) Id. In this case, however, the plaintiff is not held to that heightened standard of proof because what is now before the court is not a motion asking for judgment of fraudulent transfer, but rather an application for a prejudgment remedy on a theory of fraudulent transfer where the applicant is not held to the trial-level burden of proof but rather to a pre-trial probable cause standard of proof. Conn. Gen. Stat. § 52-278d; Pero Building Company v. Smith, supra. Specifically, the plaintiff must establish probable cause to believe that it can prove by clear and convincing evidence that the transfer was fraudulent. See Memoli v. Debrizzi, Docket No. CV04-04001966S, Superior Court, Judicial District of Fairfield at Bridgeport (February 28, 2005, Dewey, J.); 2005 Ct.Sup., 3760; WL 758046 (Conn.Super.) The court finds that the plaintiff has sustained that burden of proof and that there is probable cause to believe that the plaintiff can prove by clear and convincing evidence both that the conveyance was made and rendered the transferor unable to meet his obligations and that the conveyance was made with a fraudulent intent in which the grantee Carolyn R. Joyner participated.

1 There is also a statutory cause of action for fraudulent transfer under the Uniform Fraudulent Transfer Act, Conn. Gen. Stat. §§ 52-552a et seq. The plaintiff's third count is deemed to be based on a common-law theory of fraudulent transfer since it fails to mention the Uniform Act or cite it by its number. Practice Book § 10-3.

Both defendants testified that when the transfer was made in June of 2004 no threat of litigation had been made by the plaintiff and they were not aware that the plaintiff intended to bring a lawsuit for injuries sustained in the March 2004 assault. But actual notice of intended litigation is not required for a fraudulent transfer to occur. A civil claim for assault damages "arises" on the day the assault occurs. Davenport v. Quinn, 53 Conn.App. 282, 304 (1999). Knowledge that a claim has arisen and fear of litigation for damages sustained is sufficient. White v. Amenta, 110 Conn. 314, 317 (1930). The defendant Mr. Joyner admitted in his testimony, and the police report (Exhibit 1) confirms, that he assaulted the plaintiff with his fists. He therefore knew that a cause of action for assault damages had arisen before he transferred his interest in the house to his wife for no consideration.² He continued thereafter to live in the house with his wife just as before. He admitted that after the transfer he had no real estate, no personal property, and no bank account with a balance of more than $500.³ Mrs. Joyner admitted in her testimony her participation in the June 2004 transfer. Their counsel now claims that the transfer was made for the legitimate purpose of "estate planning" presumably based on Mr. Joyner's testimony that he gave his interest in the home to his wife so that "If something happens to me, it's yours." But that was exactly the situation before the transfer since the previous owner had conveyed the house to "Carolyn R. Joyner and Ecclesiastes Joyner, and the survivor thereof, as joint tenants with the right of survivorship." (Exhibit 2.) There was no evidence that the couple had sought or received any estate planning advice from an attorney or financial advisor. In summary, there is more than enough evidence and logical inferences therefrom to believe on a probable cause basis (1) that the conveyance was made by Mr. Joyner to Mrs. Joyner, and that the conveyance rendered Mr. Joyner unable to meet his obligations including his known unmatured obligation to the plaintiff for assault damages; and (2) that the conveyance was made by Mr. Joyner with the intent to defraud the plaintiff, and the grantee Mrs. Joyner was aware of the conveyance and shared in that fraudulent intent. The court so finds, and the application to attach Mr. Joyner's former half interest in the home is therefore granted.

2 The quitclaim deed (Exhibit 3) recited a consideration of "One ($1.00) DOLLAR, love and affection and other valuable consideration." Mr. Joyner testified that "no money" was exchanged.

3 Under Conn. Gen. Stat. § 52-352b(r) there is an exemption for "any interest of the exemptioner in any property not to exceed in value one thousand dollars."

Order

The Amended Application for Prejudgment Remedy is granted to the extent of $30,000. The plaintiff may attach in the amount of $30,000 the undivided one-half interest in the real property at 34 Buena Vista Street, Stamford, Connecticut formerly owned by the defendant Ecclesiates Joyner and now standing of record in the name of the defendant Carolyn R. Joyner. The real property is more particularly described in the order attached to the Amended Application for Prejudgment Remedy as signed by the Court.

So ordered.