Plasil v. Tableman

• Decision Date: 21 July 1992
• Docket Number: No. 14397,14397
• Citation: 612 A.2d 763,223 Conn. 68
• Parties: Ellen PLASIL v. Linda TABLEMAN, et al.
• Court: Connecticut Supreme Court

Page 763

612 A.2d 763

223 Conn. 68

Ellen PLASIL v. Linda TABLEMAN, et al.

No. 14397.

Supreme Court of Connecticut.

Argued May 1, 1992.

Decided July 21, 1992.

William R. Moller, with whom were Kimberly A. Knox, Hartford, and, on the brief, Kevin J. Kopetz, North Haven, for appellants (defendants).

David P. Atkins, Bridgeport, for appellee (plaintiff).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

GLASS, Associate Justice.

The principal issue in this appeal is whether the trial court had subject matter jurisdiction to grant prejudgment remedies when the plaintiff, Ellen Plasil, had not paid an entry fee as required by General Statutes § 52-259. ¹ The trial court denied the motion of the defendants, Linda Selby Tableman and Stephen D. Tableman, to dissolve, modify or vacate prejudgment remedies of attachment and garnishment. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The relevant facts are undisputed. The plaintiff and the named defendant, Linda Selby Tableman, dissolved their law partnership and agreed to split the fees to be recovered in two pending cases. In a dispute arising out of the settlement received in one of those cases, the plaintiff brought an action against Linda Tableman and her husband, Stephen D. Tableman. ² Pursuant to General Statutes § 52-278e(a)(2)(D) and (E), ³ the plaintiff simultaneously secured an ex parte attachment on the defendants' home, a garnishment of funds, including earnings, owed to Stephen Tableman by his employer, and a garnishment of a bank account of the defendants. The defendants claimed insufficiency of process, insufficiency of service of process and want of personal jurisdiction, and filed a motion to dismiss the action pursuant to Practice Book § 143. ⁴ The defendants also filed a motion to dissolve the prejudgment remedies pursuant to § 52-278e(c). ⁵ After a hearing on April 8, 1991, the trial court dismissed the complaint for insufficiency of service and dissolved the attachment of the defendants' home as improperly served. The trial court also dissolved the garnishment as to Stephen Tableman's earnings. The court noted, however, in its memorandum of decision issued April 18, 1991, that the "plaintiff may re-serve the process found to have been defectively served." The trial court found, further, on the basis of evidence presented at the April 8, 1991 hearing, that the plaintiff had established probable cause to sustain prejudgment remedies and, accordingly, authorized attachment of the defendants' home and the garnishment of funds other than earnings.

The plaintiff served the defendants with a corrected summons and complaint on April 19, 1991, together with an order for the prejudgment remedies of attachment and garnishment, based on the previous probable cause finding. The trial court clerk neither assigned a new docket number nor collected a docketing fee from the plaintiff. Instead, above the return date on the order for prejudgment remedies, the clerk wrote in the docket number assigned to the original action. Counsel for both parties subsequently signed a stipulation for a temporary restraining order bearing the original docket number. Thereafter, on May 24, 1991, the defendants filed an answer to the plaintiff's complaint. ⁶ The defendants then, for the first time, challenged the use of the original docket number on the order for prejudgment remedies, claiming that the writ and summons on which the attachment and garnishment were based had never been properly returned. The defendants filed a second motion to dissolve the prejudgment remedies, and a motion to enter judgment in the April 8, 1991 proceeding. After a hearing on June 17, 1991, the trial court denied the defendants' motions and granted the plaintiff's application for supplemental prejudgment remedies. ⁷ This appeal followed.

I

The plaintiff claims at the outset that this court lacks subject matter jurisdiction over this appeal. ⁸ Specifically, the plaintiff claims that because the defendants did not appeal the April 18, 1991 trial court rulings within seven days, as required by General Statutes § 52- 278l, they waived their right to appeal those rulings. ⁹ The plaintiff asserts, moreover, that the defendants' second motion to dissolve prejudgment remedies challenged an existing prejudgment remedy granted after a hearing and, therefore, was governed by General Statutes § 52-278k. ¹⁰ The plaintiff contends, therefore, that the June 17, 1991 trial court ruling on the defendants' second motion to dissolve was not an appealable final judgment within the meaning of General Statutes § 52-278l. See City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980). We agree with the plaintiff that the defendants waived their right to appeal the April 18, 1991 rulings. We conclude, however, that the trial court's June 17, 1991 ruling on the defendants' second motion to dissolve prejudgment remedies was an appealable final judgment pursuant to § 52-278l.

The plaintiff's re-served summons and complaint included an application for prejudgment remedies identical to the application on which the trial court had based its April 18, 1991 decision. The trial court, in ruling on the defendants' second motion to dissolve prejudgment remedies, expressly incorporated the findings of the April 18, 1991 memorandum of decision. See footnote 7, supra. In addition, the defendants were given the opportunity, at the June 17, 1991 hearing, to present additional evidence as to the validity of the prejudgment remedies. Finally, the trial court, on June 17, 1991, granted the plaintiff's supplemental application for a prejudgment remedy garnishing another bank account owned by the defendants. The defendants have appealed the trial court's rulings on their second motion to dissolve prejudgment remedies and on the plaintiff's supplemental application for prejudgment garnishment.

We are persuaded that the trial court's June 17, 1991 ruling on the defendant's second motion to dissolve prejudgment remedies is a final judgment within the meaning of § 52-278l (a)(2). ¹¹ The trial court, at the June 17, 1991 hearing, reviewed and ruled anew on the validity of the prejudgment remedies that it had considered at the April 8, 1991 hearing. The record thus reveals that the trial court treated the plaintiff's reserved application for prejudgment remedies as a newly filed application under § 52-278e. With respect to the June 17, 1991 rulings, moreover, the defendants complied with the time provisions of § 52-278l (b) and Practice Book § 4009. The defendants' appeal from the June 17, 1991 rulings of the trial court is, therefore, both jurisdictionally appropriate and timely. Monroe v. Monroe, 177 Conn. 173, 176-78, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); Giordano Construction Co. v. Ross, 182 Conn. 577, 438 A.2d 772 (1980); see also Practice Book § 4000.

II

The defendants rely first upon General Statutes § 52-259 to support their claim that the trial court should have granted their motion to dissolve the prejudgment remedies order. The defendants argue that the plaintiff's failure to pay an entry fee pursuant to § 52-259(a) deprived the trial court of subject matter jurisdiction over the re-served complaint. The defendants also assert that the continued use of the docket number assigned to the prejudgment remedy application that was originally filed was improper because the trial court had dismissed the original complaint on April 18, 1991. We have stated: "Prejudgment attachment, although a useful and efficient remedy, can be harsh in its operation and liable to oppressive use because it is summary in its effects. Consequently, its application has been confined within the limits set by statute." Ledgebrook Condominium Assn. v. Lusk Corporation, 172 Conn. 577, 584-85, 376 A.2d 60 (1977). We conclude, nonetheless, that the statutory procedural protections that are intended to benefit defendants in prejudgment remedy proceedings have been afforded the defendants in the present case.

Section 52-259(a) provides that a fee shall be paid to the clerk "for entering ... each civil cause in the superior court." The statute, however, does not preclude the trial court from assigning to a re-served process the docket number assigned to the original complaint. As the trial court observed, if it were otherwise, the court would have been forced to repeat the entire evidentiary hearing on the issue of probable cause that it had conducted on April 8, 1991. The purpose of a prejudgment remedy probable cause hearing is to satisfy the constitutional due process right of parties whose property rights are to be affected, to be heard " 'at a meaningful time and in a meaningful manner.' " Ledgebrook Condominium Assn. v. Lusk, supra, 583, 376 A.2d 60, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The defendants concede the existence of probable cause and the lack of any substantive issue as to the validity of the prejudgment remedies.

Assuming that the trial court clerk had a statutory duty to collect the entry fee pursuant to § 52-259(a), we conclude, as did the trial court, that the plaintiff should not be penalized for the clerk's inaction, and that the clerk's inaction did not deprive the trial court of subject matter jurisdiction. "it is of course difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or inoperative, but, of all the rules mentioned, the test most satisfactory and conclusive is, whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial--to...