Glanz v. Testa

• Decision Date: 08 July 1986
• Citation: 200 Conn. 406,511 A.2d 341
• Court: Connecticut Supreme Court
• Parties: Myron L. GLANZ v. James L. TESTA, et al.

Page 341

511 A.2d 341

200 Conn. 406

Myron L. GLANZ v. James L. TESTA, et al.

Supreme Court of Connecticut.

Argued May 1, 1986.

Decided July 8, 1986.

Elliot B. Gersten, with whom was John P. Clifford, Jr., Hartford, for appellants (defendants).

Larry R. Levine, Hartford, for appellee (plaintiff).

Before PETERS, C.J., and HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

SHEA, Associate Justice.

The narrow issue in this appeal is whether a trial court at a hearing on a motion to dissolve an ex parte prejudgment real estate attachment is limited to an examination of probable cause as presented in the supporting affidavit to the prejudgment remedy application. The plaintiff, Myron L. Glanz, and the defendants, James Testa and John Bartus, allegedly created a partnership in order to develop property located in East Windsor. On August 9, 1983, the plaintiff brought this action against the defendants for breach of various fiduciary duties and confidential relationships, claiming that the defendants improperly took title to the partnership property in their own names. On the same date, the plaintiff applied, under the provisions of General Statutes § 52-278e, ¹ for an ex parte prejudgment attachment of the disputed property in East Windsor. Attached to the application was a supporting affidavit, sworn to by the plaintiff, alleging the factual basis for his claim of $2,300,000, one-third of the anticipated profits of the partnership operations.

The court, Satter, J., on August 12, 1983, in an ex parte proceeding without notice or hearing, found probable cause to sustain the validity of the plaintiff's claim and granted the requested prejudgment remedy. On September 26, 1983, the defendants moved to dissolve the prejudgment attachment. The trial court, N. O'Neill, J., granted the motion to dissolve on the ground that the plaintiff's affidavit was insufficient to establish probable cause with respect to damages. The court expressly refused to hear additional evidence from the plaintiff to support the claim for damages.

The plaintiff appealed from that judgment to the Appellate Court which, in reversing the trial court, held that even if an affidavit is inadequate to establish probable cause, the plaintiff may still prove probable cause at a hearing to dissolve the attachment. Glanz v. Testa, 4 Conn.App. 330, 331, 494 A.2d 600 (1985). Upon the grant of certification, the defendants appealed to this court, claiming that, because a valid affidavit is a condition precedent to an ex parte prejudgment attachment, a plaintiff may not, at a hearing on a motion to dissolve, present evidence to cure a defect in the initial affidavit. We agree with the Appellate Court 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.

The remedy of attaching and securing a defendant's property to satisfy a potential judgment in favor of the plaintiff is unknown to the common law and is purely a statutory vehicle. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 582, 376 A.2d 60 (1977). Under General Statutes § 52-278e, the court may award a prejudgment remedy, without a hearing or notice to the defendant, upon verification by oath of the plaintiff or some competent affiant that there is probable cause to sustain the validity of the plaintiff's claim. "The statute can be invoked only by a verified affidavit that contains factual, rather than merely conclusory, supporting allegations." Fermont Division v. Smith, 178 Conn. 393, 397, 423 A.2d 80 (1979); see Kukanskis v. Griffith, 180 Conn. 501, 505, 430 A.2d 21 (1980). Under this ex parte prejudgment remedy procedure, the court must make a determination of probable cause based solely on the facts contained in the affidavit before granting the attachment. In order to comport with federal constitutional due process requirements; Fermont Division v. Smith, supra, 178 Conn. at 397-98, 423 A.2d 80; the statute guarantees the defendant the opportunity for an immediate post-seizure hearing at which the prejudgment remedy will be dissolved unless the court determines "that there is probable cause to sustain the validity of the plaintiff's claim." General Statutes § 52-278e. It is this facet of the ex parte prejudgment remedy mechanism that is the focus of this appeal. The gravamen of the issue before us is whether the plaintiff can, during the hearing on the motion to dissolve, introduce evidence supplementing the facts set forth in the initial prejudgment remedy affidavit.

Section 52-278e provides that the prejudgment remedy granted shall remain in effect if the court determines at the hearing "that there is probable cause to sustain the validity of the plaintiff's claim." (Emphasis added.) We construe this language to allow the plaintiff to introduce at the hearing additional evidence to buttress his initial affidavit, just as the defendant may produce evidence to the contrary. In affording the defendant an opportunity for review of the granting of the ex parte attachment, the statutory provision for a hearing was not intended to preclude the plaintiff from evidentiary proof of the existence of probable cause at the time of the hearing. A different construction of the statute would not prevent a plaintiff whose affidavit in support of an ex parte prejudgment attachment was deficient, once he became aware of a potential challenge, from moving for an ordinary prejudgment attachment, with notice to the defendant, pursuant to General Statutes §§ 52-278c and 52-278d. The resourceful plaintiff thus could obviate the insufficiency of his affidavit by presenting evidence to establish probable cause at this duly noticed proceeding. By providing that the ex parte attachment shall remain in effect if the court finds at the hearing on the defendant's motion to dissolve the attachment that there "is" probable cause to support the plaintiff's claim, the legislature has made it unnecessary for a plaintiff to institute such an additional proceeding to retain an attachment that might otherwise be infirm.

The statute has thus made it possible to combine a proceeding under §§ 52-278c and 52-278d with the hearing on the validity of the initial prejudgment remedy that was obtained ex parte, rather than require a plaintiff to institute such a proceeding separately. The statute could, if the legislature had so desired, merely have provided that the hearing be limited to a determination of the sufficiency of the ex parte affidavit alone. Self-Service Sales Corporation v. Heinz, 1 Conn.App. 188, 192, 470 A.2d 701 (1984). A deficient affidavit would then have resulted in the discharge of the ex parte attachment until such time as a redetermination of the existence of probable cause was made in a subsequent proceeding instituted by the plaintiff....