Doe v. Rapoport

• Decision Date: 04 November 2003
• Docket Number: (AC 23125).
• Citation: 80 Conn. App. 111,833 A.2d 926
• Court: Connecticut Court of Appeals
• Parties: JOHN DOE ET AL. v. JONATHAN RAPOPORT ET AL.

80 Conn. App. 111

833 A.2d 926

JOHN DOE ET AL.¹ v. JONATHAN RAPOPORT ET AL.

(AC 23125).

Appellate Court of Connecticut.

Submitted on briefs September 19, 2003.

Officially released November 4, 2003.

Lavery, C. J., and Bishop and Hennessy, Js. James J. Farrell, for the appellants (defendants).

Joseph G. Walsh, for the appellee (plaintiffs).

Opinion

LAVERY, C. J.

The defendants, Jonathan Rapoport, Haig Development, LLC, and Opus Management, Inc., appeal from the judgment of the trial court granting a prejudgment attachment in the amount of $1 million in favor of the plaintiffs, John Doe, Jane Doe, James Doe and Jeff Doe. On appeal, the defendants claim that (1) the court improperly found that the affidavit on which the court based its judgment was sufficient to establish probable cause under General Statutes § 52-278d, (2) the court improperly admitted into evidence a medical report pursuant to General Statutes § 52-174 (b) and (3) the plaintiffs failed to initiate a valid civil action. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendants' appeal. On February 14, 2001, Rapoport pleaded guilty to three counts of risk of injury to a child in violation of General Statutes § 53-21 (2).² The victims of Rapoport's criminal actions were the minor plaintiffs, James Doe and Jeff Doe. Subsequent to Rapoport's guilty plea, the plaintiffs³ filed an application for a prejudgment remedy seeking an attachment to secure the sum of $1 million against the property or assets of the defendants.⁴ On May 11, 2001, the defendants were served with the plaintiffs' application for the attachment, accompanying documents,⁵ including an unsigned copy of the complaint, and an affidavit from John Doe in support of the application for the attachment.

The plaintiffs' proposed twelve count complaint alleged various causes of action against Rapoport, including battery, assault and sexual contact with each of the minor plaintiffs. Count eleven alleged that Rapoport had quitclaimed certain real property to Haig Development, LLC, with the "intent to hinder, delay or defraud creditors." Count twelve alleged that the property transfer was made by Rapoport without his having received a reasonable equivalent value and that he either was insolvent at the time of the transfer or became insolvent as a result thereof. A hearing on the plaintiffs' motion for the attachment was scheduled for May 21, 2001, and then rescheduled for June 12, 2001. Further delays ensued, and the hearing was again delayed. On July 20, 2001, the plaintiffs served the defendants with the twelve count complaint. A hearing on the plaintiffs' original application had not been rescheduled. The plaintiffs, therefore, filed a second application, which was served on the defendants on November 7, 2001. On November 15, 2001, the court granted the plaintiffs' motion for default for the defendants' failure to appear.

A hearing on the plaintiffs' application was held on December 20, 2001. At that hearing, the court heard testimony from Jane Doe, and various documents were introduced into evidence. On May 14, 2002, the court issued its memorandum of decision. The court found that the affidavit that was submitted in support of the application was sufficient to establish probable cause to believe that it was likely that the plaintiffs would succeed on the merits. Accordingly, the court granted the plaintiffs' application. This appeal followed.⁶

I

The defendants first claim that the court improperly found that the affidavit on which the court based its decision was sufficient to establish probable cause under General Statutes § 52-278c. Specifically, the defendants argue that the affidavit contained no reference to any damages suffered by the plaintiffs and that the affidavit therefore could not support a finding of probable cause. We disagree.

We set forth the following legal principles that will aid in the resolution of that issue. "A hearing on an application for prejudgment remedy is not a full-scale trial on the merits of the plaintiffs' claims . . . but 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. . . . Appellate review of the trial court's decision is limited to whether it was clearly improper and whether the trial court's conclusion was reasonable. . . . In the absence of a procedural flaw in prejudgment remedy proceedings . . . appellate courts have only a limited role to play in reviewing a trial court's broad discretion to deny or to grant a prejudgment remedy." (Citations omitted; internal quotation marks omitted.) Soltesz v. Miller, 56 Conn. App. 114, 116, 741 A.2d 335 (1999).

"[A]n appellate court is entitled to presume that the trial court acted properly and considered all the evidence.. . . [Our role] is not to duplicate the trial court's weighing process, but rather to determine whether its conclusion was reasonable. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . Thus, this court's review is limited to whether the trial court's conclusion was reasonable." (Citation omitted; internal quotation marks omitted.) Bosco v. Arrowhead by the Lake, Inc., 53 Conn. App. 873, 875, 732 A.2d 205 (1999).

In the present case, John Doe provided an affidavit with the application for the attachment. The affidavit stated that Rapoport had pleaded guilty to conduct that constituted a risk of injury to a child in violation of § 53-21. Furthermore, that conduct was committed against the minor children in this matter.

As we have stated, the probable cause hearing is not a full-scale trial on the merits. "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. . . . [T]his weighing process applies to both legal and factual issues. . . . In addition, the trial court has the responsibility, after the adversarial evidentiary hearing, to consider not only the validity of the claim but also the amount that is being sought." (Citation omitted; internal quotation marks omitted.) Giordano v. Giordano, 39 Conn. App. 183, 206, 664 A.2d 1136 (1995). Stated more succinctly, "[p]robable cause for purposes of the [prejudgment remedy] statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false." Fischel v. TKPK, Ltd., 34 Conn. App. 22, 24, 640 A.2d 125 (1994). The affidavit, although very brief, supplied the court with the necessary facts to support a finding that there was probable cause to sustain the validity of the plaintiffs' claims.

Even if we were to conclude that the affidavit alone was insufficient to support a finding of probable cause, the evidence presented at the hearing amply supported such a finding. Our Supreme Court has stated that "a plaintiff may present evidence at a hearing on a motion to dissolve an ex parte prejudgment attachment in order to support an insufficient initial affidavit." Glanz v. Testa, 200 Conn. 406, 408, 511 A.2d 341 (1986). We see no reason why the plaintiffs in this case should not be permitted to use evidence at the hearing to buttress the facts contained in the affidavit.

The plaintiffs supplied evidence at the hearing that further supported the court's finding of probable cause. First, Jane Doe testified that she was present when Rapoport pleaded guilty. She further testified that Jeff Doe had received treatment from both a psychologist and a psychiatrist. She stated that Jeff Doe had not received the recommended amount of treatment due to a lack of financial resources.

Second, the plaintiffs introduced a certified copy of Rapoport's criminal judgment and a transcript of his plea. Both of those documents supported the allegations set forth in the complaint. Third, the report of William Hartman, a psychologist who treated Jeff Doe, was admitted into evidence.⁷ That report detailed the various traumatic effects of Rapoport's sexual abuse and the subsequent serious effect on Jeff Doe. Furthermore, the report acknowledged that years of specialized psychotherapy, perhaps even a residential treatment setting, likely will be necessary. On the basis of that evidence, it is clear that the court did not abuse its discretion or commit clear error in granting the plaintiffs' application for an attachment.

II

The defendants next claim that the court improperly admitted into evidence Hartman's medical report pursuant to § 52-174 (b).⁸ Specifically, the defendants argue that the report failed to meet the requirements of § 52-174 (b) in that (1) no bill for treatment accompanied the report and (2) the report did not disclose Hartman's area of expertise or whether he actually treated Jeff Doe. We address each argument in turn.

A

The defendants first argue that § 52-174 (b) requires that a bill for treatment must accompany the report for the report to be admissible. The defendants further claim the bill is necessary to demonstrate that the provider, in this case a psychologist, treated the plaintiff in the ordinary course of practice. We are not persuaded.

The defendants argue in their brief that "§ 52-174 requires that both the bill for treatment and the report be admitted together." The defendants, however, have failed to provide us with any rule of law to support that claim. As we frequently have stated, "[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis. ....