Opinion
No. CV 03 0520243 S
June 5, 2003
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
The plaintiff Jeffrey A. Torrance is the Executor of the Estate of Andrew W. Torrance (hereinafter the "decedent") who died on February 5, 2003. He alleges in the Application that he is acting in said capacity. The defendant is Ann Q. Torrance, the widow of Andrew W. Torrance.
Ann Q. Torrance is the stepmother of the decedent's children. The marriage between Andrew W. Torrance and Ann Q. Torrance was the second marriage for both individuals. Although they each had children from the previous marriages, no children were born of the marriage between Andrew W. Torrance and Ann Q. Torrance.
The following facts are undisputed.
1. On or about December 14, 2001, the decedent executed his Last Will and Testament. Said will named his son Jeffrey A. Torrance as his Executor. It further directed that after payment of various expenses, the rest remainder and residue of his estate was bequeathed to his children Jeffrey A. Torrance, Gary A. Torrance, Donald J. Torrance and Thomas Torrance. It furthermore provided that although the decedent was not unmindful of his wife Ann Q. Torrance he had provided for her needs and she had executed a voluntary waiver in accordance with the provisions of § 45a-436 of the Connecticut General Statutes.
2. On or about December 14, 2001, the decedent and the defendant executed waivers of their statutory share to each other's estates in accordance With the provisions of § 45a-436 of the Connecticut General Statutes.
3. On or about December 14, 2001 the decedent executed a Connecticut Statutory Short Form Power of Attorney, thereby appointing Ann Q. Torrance and Jeffrey A. Torrance as his attorneys-in-fact to act severally in all matters.
4. On or about January 23, 2002, the defendant acting as attorney-in-fact under the Power of Attorney transferred funds from two bank accounts, one located at Webster Bank, the other at Fleet Bank. Both of the accounts were in the sole name of the decedent. The total amount of the withdrawals was one hundred seventy six thousand one hundred thirty eight dollars and thirty-one cents ($176,138.31). CT Page 7389-fr
The total amount withdrawn from Webster Bank was ninety seven thousand seven hundred ninety six dollars and eighteen cents ($97,796.18). The total amount withdrawn from Fleet Bank was seventy eight thousand three hundred forty two dollars and thirteen cents ($78,342.13).
5. Despite demand being made by the legal representatives of the plaintiff, the defendant refused to return the money from the aforementioned accounts to the Estate.
6. On or about March 27, 2003 for the purchase price of one hundred nineteen thousand dollars ($119,000.00) the defendant purchased a condominium located at 182 Georgetown Drive, Glastonbury Connecticut using funds that had come from the aforementioned accounts.
7. The defendant placed approximately sixty thousand dollars ($60,000.00) of the money that came from the aforementioned accounts into an account at Fleet Bank. Said account is in the defendant's name and in the name of Gary Torrance (the decedent's son) as a beneficiary.
The plaintiff alleges that the defendant is liable for common law conversion of property and statutory civil theft pursuant to the provisions of § 52-564 of the Connecticut General Statutes.
On June 5, 2003 this Court held a hearing on the Application for Prejudgment Remedy. The plaintiff and the defendant were in attendance, and the parties were represented by counsel.
Although the defendant disputes the origin of the funds in the subject bank accounts she does not dispute the salient facts as presented to this Court concerning the removal of the funds from said accounts. She does however assert that she was entitled to remove the funds in order to comply with what she alleges to be the decedent's wishes. She asserts that said wishes were for her to be provided with a "condo, villa or house" in which to live. It is the defendant's contention that the reason that the decedent gave her power of attorney was so that she could see that his wishes were met, i.e. so that she could purchase a residence.
It is the position of the defendant that the funds in the account were marital assets.
The defendant asserts that the decedent wanted her to have a life estate in said real property.
Section 52-278d of the Connecticut General Statutes concerns hearings on prejudgment remedy applications.
General Statutes § 52-278d (a) permits a trial court to grant a prejudgment remedy if "the plaintiff has shown probable cause that . . . a judgment will be rendered . . . in the plaintiff's favor . . ." We emphasize that a hearing on an application is not a full-scale trial on the merits of the plaintiff's claims; Fischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994); Hoke, Inc. v. Circuits, Inc., 26 Conn. App. 804, 805, 602 A.2d 1075 (1995); but CT Page 7389-fs rather concerns only whether and to what extent the plaintiff is entitled to have property of a defendant held in custody of the law pending final adjudication of the merits of the action. Tyler v. Schnabel, 34 Conn. App. 216, 220, 641 A.2d 388 (1994). There is no assurance that, when a hearing on the merits is eventually reached, the evidence will be identical to the evidence adduced at the prejudgment remedy hearing. In fact, the evidence at trial will usually be much more expansive and may include exhibits or testimony not yet available at the time of the hearing on the application or the prejudgment remedy.
Bosco v. Arrowhead By The Lake, Inc., 53 Conn. App. 873, 874 (1999).
Subsection 52-278d (4) provides in pertinent part that:
(4) . . . 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.
Case law in our state indicates that the burden of proof to show "probable cause" in a civil action is as follows:
"Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action." One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn. App. 524, 525, 589 A.2d 892 (1991). "The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim." Id.; Fischel v. TKPK, CT Page 7389-ft Ltd., 34 Conn. App. 22, 26, 640 A.2d 125 (1994)." Tyler v. Schnabel, 34 Conn. App. 261, 219-20 (1994).
(Cited in Incor Group v. Polied Enviro. Rest. Ser., CV01-0457219 (Mar. 28, 2002), 2002 Ct. Sup. 3346 (Munro, J).)
Although the defendant has presented credible evidence concerning defenses to the plaintiff's claims in this matter, the issue before this court is not whether the defendant has viable defenses, but rather after weighing the evidence and taking such defenses into consideration, whether or not the plaintiff has met his burden of proof to show probable cause that a judgment will be rendered in his favor. After considering all of the defendant's defenses and all of the evidence that was presented to this Court, the Court finds that the plaintiff has met his burden of proof to show by a fair preponderance of the evidence that a judgment will be rendered in his favor.
The Court further finds that payment of any judgment that may be rendered against the defendant is not claimed to be adequately secured by insurance, and the property sought to be subjected to the prejudgment remedy is not claimed to be exempt from execution.
It is hereby ordered that the application for prejudgment remedy be granted. The plaintiff may attach to the value of one hundred and seventy six thousand dollars ($176,000.00) the following goods or estate of the defendant Ann Q. Torrance:
1.) Real property of Ann Q. Torrance located at 182 Georgetown Road, Glastonbury, Connecticut.
2.) Fleet bank account in the name of Ann Q. Torrance with Gary Torrance as beneficiary.
The defendant may substitute a bond for all or any portion of the prejudgment remedy hereby granted.
Richard Allan Robinson, J
June 5, 2003