Opinion
No. TTD CV 07-5001483-S
July 25, 2007
RULING ON PLAINTIFF'S APPLICATION FOR PREJUDGMENT REMEDY
In this case, the plaintiff, Harrison Sipes, alleges that the defendant, Daisy Serrano, wrongfully refused to return his 1999 Cadillac Deville after their romantic relationship ended in 2006. A lawsuit based on a cause of action for conversion is proposed. In advance of suit, and by Amended Application for Prejudgment Remedy, Sipes seeks a garnishment in the amount of $10,000.00 from Serrano's interest "in the eventual proceeds or recovery in a personal injury claim, Daisy Serrano v. Richard Fields, arising out of a two-car motor vehicle accident . . . in Hartford, CT." That motor vehicle case has not yet been filed, however, Serrano has filed a claim with the New London County Mutual Insurance Company in the matter. That insurance company is the proposed garnishee. For the following reasons, the Application for Prejudgment Remedy is denied.
I
The purpose of the garnishment effort, prejudgment, is to secure, in the hands of the garnishee, any "debt due or that may become due" to pay such judgment as the plaintiff may recover. General Statutes § 52-329. The Application for Prejudgment Remedy in this ease, seeking the garnishment, is presented to the court with a proposed unsigned writ, summons and complaint, pursuant to General Statues § 52-278c(a).
The proposed complaint alleges conversion of the 1999 Cadillac. In order for Sipes to prevail on the Application for Prejudgment Remedy, the court must find probable cause that judgment will be rendered for the him in an amount equal to or greater than the amount of the prejudgment remedy sought, taking into account all defenses, counterclaims or set offs. General Statutes § 52-278d(a)(1). In this context, probable cause means a bona fide belief in facts essential under the law for the action, and such as would lead a reasonably prudent person to entertain such belief. See, Dufraine v. Commission on Human Rights and Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996). "It is firmly established that the trial court's hearing in probable cause is not intended to be a full scale trial on the merits of the plaintiff's 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 . . ." (Internal quotation marks omitted.) Fischel v. TKPK. Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994).
This case presents two major issues: (1) Whether there is probable cause to believe that judgment will be rendered in favor of Sipes in his proposed conversion case; and (2) whether the asset sought to be garnished in this case — the eventual proceeds or recovery in a personal injury action not yet filed — is a type of asset eligible for garnishment? The court finds in the negative on both issues.
II
With regard to the probable cause issue, the court heard testimony from Sipes; Serrano; Nicole Maddox, a friend of Serrano; and Madeline Serrano, Serrano's sister. Documentary evidence was also admitted. The court finds as follows: Sipes and Serrano began dating in September 2005 and fell in love. In January 2006, they went shopping for a car together, and found the subject 1999 Cadillac at Orr Cadillac in Springfield, MA. Sipes signed a contract and paid for the car, and paid for the automobile insurance to cover the vehicle, but did not get the car off the lot. At this point, the testimony the parties sharply conflict.
Sipes testified that the problem was that he then learned that someone in New Jersey had stolen his identify, causing problems with his driving record and license status, and the dealer would not let him drive the car off the lot until those problems were resolved. He further testified that his solution was to have the papers redone, putting ownership and registration in Serrano's name. Serrano was given the car, he agrees, but she was only to drive him around in the vehicle until he could get the matter straightened out. The car was, and always was, his vehicle, he claims. Serrano testified, to the contrary, that Sipes had told her that he loved her, had promised to buy the car for her because her Dodge Neon was unreliable, and that the Cadillac was to be a gift. In fact, when she learned that the papers were originally prepared in his name, she complained and he changed it to have all the ownership and registration in her name, and she then accepted the car. She further testified that he never mentioned anything about an identify theft problem, and that she was not aware of any such problem.
Two contracts were admitted into evidence, the first dated January 4, 2006 showing Sipes as the purchaser of the Cadillac, and the other dated January 23, 2006 showing Serrano as the purchaser of the same vehicle. Two sets of invoices and odometer statements were also admitted, one set in Sipes's name dated January 12, 2006, and the other set in Serrano's name, dated January 24, 2006. The court finds that Sipes signed the papers to purchase the car on January 4, 2006, paid for it and acquired insurance for it, all in his name only, but changed it all starting on January 23, 2006. The court finds that the parties agreed to have the papers prepared showing Serrano as purchaser, and all of the sale papers were made out to her as purchaser and owner. Subsequently, the car was registered with the Connecticut Motor Vehicle Department in her name only, and the title was issued in her name only. The registration and title, showing her name only, were also admitted into evidence. Nicole Maddox and Madeline Serrano testified, consistent with Serrano, and the court finds, that Sipes repeatedly stated that he wanted to buy the car for Serrano as a gift, and that he said the car was for her, and that Serrano received the car in that context. The court further finds that Sipes never mentioned an identity theft problem to Serrano, nor to her sister or friend.
Conversion occurs when one assumes and exercises the right of ownership over property belonging to another, without authorization and to the exclusion of the owner's rights. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1980). A gift inter vivos, on the other hand, is complete when there is an intention to give, accompanied by a delivery of the thing given and acceptance by the donee. Hebrew University Ass'n v. Nye, 26 Conn.Sup. 342, 344, 223 A.2d 397 (1966). Considering the fact that the documents establish ownership in Serrano, and considering the corroborated testimony of intent to make a gift of the car, and delivery of the car to Serrano with testimony that it was her car, and Serrano's acceptance of the car, the court finds probable cause to believe that it will be found that the car was a gift to Serrano, and that it was not converted, and that judgment will not enter in favor of Sipes. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts . . ." Scott v. Harris, 167 L.Ed.2d 686, 694 (2007).
Even if there was probable cause to believe Sipes's explanation of the events, the Application for Prejudgment Remedy would still need to be denied. Assuming, arguendo, that the parties agreed to register the car in Serrano's name, even though it was truly owned by Sipes, that would have constituted the giving of false information to the Motor Vehicle Department. That would be an illegal act. See General Statutes § 14-12(d) (misrepresentation in registration). "It is unquestionably the general rule, upheld by the great weight of authority, that no court will lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law. In case any action is brought in which it is necessary to prove an illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any allege right directly springing from such a contract . . ." (Internal quotation marks omitted.) Haynes Const. Co. v. Cascella and Son Const. Inc., 36 Conn.App. 29, 39, 647 A.2d 1015, app. denied, 231 Conn. 916, 648 A.2d 152 (1990), quoting Tatos v. Valden, 124 Conn. 96, 101, 198 A.2d 169 (1938); see also Connecticut Importing Co. v. Janowitz, 128 Conn. 433, 436, 23 A.2d 514 (1941); State v. Council 4, AFSCME, 27 Conn.App. 635, 640, 608 A.2d 718 (1992). The court could not approve a prejudgment remedy in aid of an effort to effectuate such an illegal agreement under these principles.
III
Another reason for denying this application to garnish the eventual proceeds or recovery from a motor vehicle insurance claim is that the law prohibits the garnishment of such an asset as a prejudgment remedy. The prejudgment remedy statutes broadly permit the attachment of property of the debtor, including "any present or future interest in real or personal property, goods, chattels, or choses in action, whether such is vested or contingent." General Statutes § 52-278(e) (emphasis added). Garnishment is available under the prejudgment remedy statutes. General Statutes § 52-278c(b). Also, a right to bring a lawsuit is a chose in action. See, Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 228, 828 A.2d 64 (2003). Nevertheless, it has been held that garnishment may be allowed only against a debt that is due to the underlying debtor at the time of the garnishment. Hospital of St. Raphael v. New Haven Savings Bank, 205 Conn. 604, 608, 534 A.2d 1189 (1987). A creditor may garnish funds that are due and owing to a debtor at the time of service of the garnishment, but payable in the future, if the obligation is (1) definite and absolute, and (2) not contingent on a future event. Wilber v. New Haven Water Co., 37 Conn.Sup. 877, 879-80, 441 A.2d 863 (1982). "A debt is due and owing and thus available for garnishment if the garnishee has an existing obligation to pay the debtor either in the present or the future." (Citation omitted; quotation marks omitted). Reid and Reige, P.C. v. Brainerd Cashman Insurance Agency, Inc., 26 Conn.App. 580, 583, 602 A.2d 1051 (1992). Thus, an asset subject to a condition subsequent can be garnished. See Dick Warner Cargo Handling v. Aetna Business, 700 F.2d 858, 863 (2nd Cir. 1983). On the other hand, where an obligation to pay depends on a condition precedent, no garnishment is available. Wilber v. New Haven Water Co. No. 1, supra, 37 Conn.Sup. 880. The asset in issue in this case is subject to a condition precedent: the motor vehicle insurance claim is not payable until it is approved, and the court received no evidence indicating that it will be approved. Until it is approved, it is not an asset that can be garnished.
Ordinarily, the prejudgment remedy hearing is not the time to resolve issues over whether a debt is in existence yet, or due and owing and subject to garnishment. See William M. Raveis Associates v. Kimball, 186 Conn. 329, 334, 441 A.2d 200 (1982). However, in this case, the material facts are not in dispute. The parties agree, and the court finds, that Serrano has filed a claim with the New London County Mutual Insurance Company, the proposed garnishee, over a motor vehicle accident, but there is no evidence that the claim will be approved. Also, the path of the law on the issue is well marked. A tort claim is not a "debt" that can be garnished. 2 Stephenson's Connecticut Civil Procedure, § 109(b) (3rd Ed., 2002), citing Holcomb v. Town of Winchester, 52 Conn. 447 (1885) and Chambers v. Blickle Ford Sales, Inc., 313 F.2d 252, 259-60 (1963). Thus, an effort to garnish the proceeds of a pending negligence lawsuit in a prejudgment remedy proceeding was rejected in Johansson v. Black, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97-0572885 (April 14, 1997, Corradino, J.). Likewise, this court must deny the present application because the asset sought cannot be garnished.
Sipes urges the court to allow the garnishment, citing South v. South, Superior Court, judicial district of New Haven, Docket No. FA 89-0289403 (July 14, 1993, Axelrod, J.) as authority. In that case, the court ordered a party in a marriage dissolution case to hold in escrow the net recovery of a "pending personal injury claim" and to pay court-ordered counsel fees from that recovery when it became available. That case is inapposite. That case involved the "equitable authority of the Superior Court to render such orders as may be required to protect the integrity of its judgments in dissolution matters . . ." (Quotation marks omitted; citation omitted.) South v. South, Id. The instant case, on the other hand, is governed by garnishment law.
IV
For all of the foregoing reasons, the plaintiff's Amended Application for Prejudgment Remedy is denied.