Rhode Island Hosp. Trust Nat. Bank v. Trust, 9037

• Decision Date: 23 July 1991
• Docket Number: No. 9037,9037
• Citation: 592 A.2d 417,25 Conn.App. 28
• Court: Connecticut Court of Appeals
• Parties: RHODE ISLAND HOSPITAL TRUST NATIONAL BANK v. Martin TRUST.

Page 417

592 A.2d 417

25 Conn.App. 28

RHODE ISLAND HOSPITAL TRUST NATIONAL BANK v. Martin TRUST.

No. 9037.

Appellate Court of Connecticut.

Argued Nov. 2, 1990.

Decided June 11, 1991.

Certification Granted July 23, 1991.

Chester J. Bukowski, Jr., with whom, on the brief, was Peter C. Schwartz, Hartford, for appellant (defendant).

Ann M. Siczewicz, Hartford, for appellee (plaintiff).

Before DALY, EDWARD Y. O'CONNELL and FOTI, JJ.

EDWARD Y. O'CONNELL, Judge.

The issue here is whether a prejudgment remedy (PJR) may be extended to include a temporary injunction in order to permit an appeal of the temporary injunction under General Statutes § 52-278l. ¹ We hold that it cannot.

The following facts are dispositive of this appeal. The plaintiff alleges that the defendant is indebted to it on a guarantee agreement that pertains to the development of certain Connecticut property. The defendant is a New Hampshire resident who submitted to Connecticut jurisdiction in the guarantee agreement. The plaintiff applied for a prejudgment attachment and also an order to show cause why a temporary injunction should not issue. Following a hearing, the court granted an attachment and simultaneously granted a temporary injunction ² ordering the defendant to bring certain securities into Connecticut and turn them over to a deputy sheriff for attachment. ³ The defendant then filed this appeal.

As a threshold matter it is important to note what issue is not before us. The defendant is not asking us to determine if the temporary injunction, considered independently, satisfies the final judgment criteria for appeal. Temporary injunctions generally are not appealable because they are interlocutory in nature, but an exception exists if the temporary injunction meets the requirements of a final judgment. ⁴ See Doublewal Corporation v. Toffolon, 195 Conn. 384, 389-90, 488 A.2d 444 (1985).

PJRs, however, are immediately appealable because they are statutorily decreed to be final judgments for purposes of appeal. General Statutes § 52-278l. Thus, it is advantageous for the defendant to convince us that this temporary injunction is in fact a PJR, thereby gaining automatic appealability rather than attempting the more arduous task of satisfying the final judgment criteria required for a temporary injunction.

The defendant argues that the temporary injunction is appealable because, under the circumstances of this case, it is a prejudgment remedy. ⁵ A prejudgment remedy is not simply a judicial remedy that is issued prior to judgment. Prejudgment remedy is a statutorily defined term that is expressly limited to only (1) an attachment, (2) a foreign attachment, (3) a garnishment or (4) an action of replevin. General Statutes § 52-278a(d). ⁶ Expressio unis est exclusio alterius. ⁷ When legislation defines the terms used therein such definition is exclusive of all others. Neptune Park Assn. v. Steinberg, 138 Conn. 357, 362, 84 A.2d 687 (1951). Whether a temporary injunction should become the fifth PJR must be determined by the legislature, not this court. "Where statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and 'cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.' " Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986), quoting Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 422, 374 A.2d 1076 (1977); State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956).

This court's refusal to expand the statutory definition of PJRs beyond those PJRs enumerated by legislation does not produce a result foreign to our jurisprudence. There are other procedures in our law that afford a party a remedy prior to the rendering of judgment (e.g., writ of Ne Exeat, temporary mandamus, and appointment of receiver). Like temporary injunctions, however, their temporal relation to the judgment does not qualify them for immediate appealability under the PJR appeal statute.

The defendant incorrectly asserts that the PJR legislation allows for hybrid remedies. In defining a PJR, General Statutes § 52-278a(d) provides in pertinent part that a PJR "means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of ... his property prior to final judgment...." (Emphasis added.) It is apparent from a plain reading of this statute that the combination of remedies is limited to a combination of the four remedies set forth therein. We find no justification to construe this unambiguous statute to mean that the possible remedies that can combine to qualify as a PJR are limitless as long as one of the four statutorily defined PJRs is included in the mix. We hold that the "combination of remedies" language refers only to any combination of the four statutorily defined PJRs. Accordingly, combining a prejudgment attachment with a temporary injunction does not transform the latter into a PJR.

The defendant also argues that, because the parties and the trial court treated the injunction as an intrinsic component of the PJR, we are bound to do likewise. This argument ignores the principle that the issue before us implicates the jurisdiction of this court. We can hear appeals only from final judgments; General Statutes §§ 51-197a, 52-263; Practice Book § 4000; and neither the parties nor the trial court can confer jurisdiction upon us. Ebenstein & Ebenstein, P.C. v. Smith Thibault Corporation, 20 Conn.App. 23, 25, 563 A.2d 1044 (1989). Accordingly, the form of the PJR application and whether the court's orders granting the attachment and the temporary injunction were in fact one order or two separate orders are irrelevant because of the jurisdictional problem posed by the defendant's appeal. The treatment of these orders as a PJR by the trial court and the parties cannot circumvent this jurisdictional barrier.

The defendant's reliance on E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 356 A.2d 893 (1975), is misplaced. Hansen was decided shortly after the PJR statutes were enacted in response to "[t]he decisions of the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 [ (1972) ]; Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424, rehearing denied, 406 U.S. 911, 92 S.Ct. 1611, 31 L.Ed.2d 822 [ (1972) ]; and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 [ (1969) ]...." E.J. Hansen Elevator, Inc. v. Stoll, supra, 167 Conn. at 624, 356 A.2d 893. As originally passed in 1973, these statutes did not include a section pertaining to appeals. Public Acts 1973, No. 73-431. In 1975, Hansen discussed the history of PJRs and concluded that the four statutory PJRs met the case law definition of final judgments and thus were immediately appealable. The following session of the General Assembly enacted Public Acts 1976, No. 76-401 (now General Statutes § 52-278l ) which codified the Hansen holding that a PJR order granting an attachment, a foreign attachment, a garnishment or replevin was a final judgment for purposes of appeal. Hansen did not consider whether any other remedy should be treated as a PJR.

We conclude that the prejudgment remedy statute may not be extended to include a temporary injunction so as to permit an appeal of an injunction under the PJR appeal statute. Accordingly, this court lacks jurisdiction to review this appeal.

The appeal is dismissed.

In this opinion, DALY, J., concurred.

FOTI, Judge, dissenting.

I must respectfully disagree with the view of the majority that we are without jurisdiction to entertain this appeal. I would conclude that jurisdiction is not lacking because the granting of the plaintiff's application for a preliminary injunction here is a final judgment within the context of General Statutes § 52-278a because it is an integral part of the prejudgment remedy.

By its complaint, the plaintiff, a Rhode Island banking institution, seeks to recover funds allegedly due it pursuant to an agreement between it and the defendant. By the agreement, the defendant, a resident of New Hampshire, guaranteed 50 percent of a promissory note from a limited partnership of which he is a partner to the plaintiff. The defendant also guaranteed, by the agreement, the payment of all interest on the note and the punctual completion of a facility being built by the partnership.

The plaintiff filed an application for the prejudgment remedy of attachment seeking an order of attachment of eleven million dollars of property belonging to the defendant. By separate request entitled "application for preliminary injunction and order to show cause" the plaintiff also sought an order compelling the defendant to bring the defendant's stock certificates in a company known as The Time Limited, Inc., into the state of Connecticut to secure the order of attachment.

The court found, after a hearing, that the loan was in default, and that the balance owed at that time was $9,641,066 plus interest of $236,820 with a per diem interest of $2,945. The defendant argued to the trial court that probable cause had not been established. ¹ He further argued that his assets far exceeded the plaintiff's claim making a prejudgment remedy unwarranted, and that no equitable relief in the form of a mandatory injunction was available to the plaintiff because it was not a creditor, in that it had not yet obtained a judgment.

The court, by a single order, granted a prejudgment remedy of attachment in the amount of $7,743,955 in favor of the plaintiff, and further ordered the defendant to bring into Connecticut and turn over to a Connecticut deputy sheriff, public securities in an amount sufficient to satisfy the attachment, and...