Sassone v. Lepore

• Decision Date: 03 August 1993
• Docket Number: No. 14693,14693
• Court: Connecticut Supreme Court
• Parties: Robert SASSONE et al. v. Richard LEPORE et al.

Page 357

629 A.2d 357

226 Conn. 773

Robert SASSONE et al. v. Richard LEPORE et al.

No. 14693.

Supreme Court of Connecticut.

Argued June 8, 1993.

Decided Aug. 3, 1993.

Donald W. Celotto, Jr., with whom on the brief, were John A. Keyes and Martin M. Looney, New Haven, for appellants (plaintiffs).

Ellery E. Plotkin, with whom was Vincent J. Freccia III, Stamford, for appellees (defendants).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, KATZ, PALMER and SANTANIELLO, JJ. ¹

PETERS, Chief Justice.

The dispositive issue in this appeal is whether the prejudgment remedy statutes, General Statutes §§ 52-278c and 52-278d, ² are unconstitutional on their face because they permit a prejudgment attachment without expressly requiring the applicant to post a bond or other security. The plaintiffs, Robert Sassone and Total Home Inspection Associates, Inc., ³ applied for a prejudgment remedy in conjunction with their complaint that the defendants, Richard Lepore and Total Home Inspection, Inc., ⁴ had failed to honor a covenant not to compete. Without holding an evidentiary hearing, the trial court denied the plaintiffs' application on the ground that the absence of a bonding requirement made the prejudgment remedy statutes facially unconstitutional. The plaintiffs have appealed to this court pursuant to General Statutes §§ 51-199(b)(2) and 52-278l. ⁵ We reverse and remand for further proceedings.

I

Before considering the substantive merits of the plaintiffs' appeal, we must address the plaintiffs' legitimate grievance about the procedural manner in which the trial court disposed of their application for a prejudgment remedy. On the date specified for a hearing on their application, the plaintiffs appeared in the trial court, prepared to present evidence and witnesses in support of their application. The defendants had interposed no objection, constitutional or otherwise, to the conduct of an evidentiary hearing on the merits of the plaintiffs' application. Nonetheless, the trial court, on its own initiative, summarily summoned counsel to chambers. Without affording the parties the opportunity to be heard on either the evidentiary or the constitutional merits of the pending application, the court informed them that it would undertake an inquiry into the constitutionality of the prejudgment remedy statutes. In this apparently brief encounter, the trial court alerted counsel to its uncertainty about the constitutional validity of the prejudgment remedy statutes in the absence of a statutory requirement that an applicant post a security bond to protect against a wrongful attachment. In response, the plaintiffs thereafter offered to tender a bond in whatever amount and form the court would deem acceptable. The court took no action on that proffer.

It is understandable that the trial court would not have wanted to hold an evidentiary hearing on the plaintiffs' application for a prejudgment remedy if the court thought that such a hearing would be pointless in the face of perceived constitutional obstacles. Once the court came to that decision, which, so far as the record shows, was not prompted by anything that transpired in this case, the court should, however, have made reasonable efforts to inform the plaintiffs, in advance of their appearance in court with their witnesses, that no evidentiary hearing would be held.

It is not understandable that the court would have undertaken to rule on the constitutionality of a state statute without affording the parties the opportunity to present argument. The constitutionally guaranteed right of access to our courts; Conn. Const., art. I, § 10; ⁶ expressly includes the right to "have remedy by due course of law." A "remedy by due course of law" necessarily encompasses the right to be heard. Depriving a party of a statutory right without an antecedent hearing that addresses the validity of the applicable statute violates the principles of due process; Brein v. State Eclectic Examining Board, 103 Conn. 65, 85, 130 A. 289 (1925), appeal dismissed, 273 U.S. 640, 47 S.Ct. 97, 71 L.Ed. 817 (1926); as well as this court's repeated injunction that every statute carries with it a strong presumption of constitutionality. Calfee v. Usman, 224 Conn. 29, 33, 616 A.2d 250 (1992); Bartholomew v. Schweizer, 217 Conn. 671, 675, 587 A.2d 1014 (1991).

Viewing the procedure employed by the trial court in its totality, we agree with the plaintiffs that the court improperly deprived them of their right to be heard. Basic principles of courtesy and fairness govern the conduct of courts as well as that of litigants and their counsel. The trial court's conduct did not comport with these principles.

II

Although the improper manner in which the trial court disposed of the plaintiffs' prejudgment remedy application would itself be a ground for reversal of its decision, we will consider the validity of the court's constitutional ruling. The trial court's decision has cast a serious constitutional shadow over the validity of our prejudgment remedy statutes. We will, therefore, exercise our appellate discretion to review that decision because a matter of substantial public interest is at stake and because the substantive merits of the issue have been fully briefed and argued in this court. Cf. State v. Ayala, 222 Conn. 331, 341, 610 A.2d 1162 (1992).

Our consideration of the merits of the trial court's ruling is governed by three well established principles that delimit constitutional challenges to validly enacted statutes. "Because a statute carries with it a strong presumption of constitutionality, a challenger must establish its unconstitutionality beyond a reasonable doubt. Bartholomew v. Schweizer, supra, 217 Conn. at 675, 587 A.2d 1014; State v. Floyd, 217 Conn. 73, 79, 584 A.2d 1157 (1991); Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). In the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. Lehrer v. Davis, 214 Conn. 232, 234-35, 571 A.2d 691 (1990); Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985). In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent. Bartholomew v. Schweizer, supra, 217 Conn. at 675-76, 587 A.2d 1014; State v. Floyd, supra; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705-706, 553 A.2d 596 (1989)." Calfee v. Usman, supra, 224 Conn. at 33, 616 A.2d 250.

Analysis of the constitutional validity of the prejudgment remedy statutes cannot proceed in the abstract. A claim that a statute fails, on its face, to comport with the constitutional requirements of procedural due process reflects a fundamental misunderstanding of the law of due process. Due process is inherently fact-bound because "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). "The constitutional requirement of procedural due process thus invokes a balancing process that cannot take place in a factual vacuum." Lehrer v. Davis, supra, 214 Conn. at 238, 571 A.2d 691; see also Shawmut Bank, N.A. v. Valley Farms, 222 Conn. 361, 368-69, 610 A.2d 652, cert. dismissed, --- U.S. ----, 113 S.Ct. 28, 120 L.Ed.2d 952 (1992). In the absence of a constitutional challenge implicating the defendants' rights to freedom of speech, the only constitutional issue before the trial court was, therefore, whether the prejudgment remedy statutes deprived the defendants of their rights to procedural due process in the particular circumstances of their case, and not merely under some possible or hypothetical set of facts not proven to exist. DiBerardino v. DiBerardino, 213 Conn. 373, 383, 568 A.2d 431 (1990); Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 589, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S.Ct. 43, 93 L.Ed.2d 6 (1986) (same rule under article first, §§ 4 and 5, of the Connecticut constitution).

In light of the truncated nature of the proceedings in the trial court, we have no factual record against which to test the validity of the trial court's constitutional ruling. ⁷ We will, therefore, treat the plaintiffs' appeal as if it were an appeal from a judgment following the granting of a motion to strike a complaint. In reviewing such a judgment, we take the facts to be those alleged in the complaint, and construe the complaint in the manner most favorable to sustaining its legal sufficiency. Kelly v. Figueiredo, 223 Conn. 31, 32, 610 A.2d 1296 (1992); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988).

Accordingly, we assume the following facts as alleged in the plaintiffs' complaint. In 1991, the individual plaintiff entered into a written agreement with the defendants to purchase the assets and the business of the defendant corporation, which was engaged in conducting home inspections. The asset purchase agreement expressly allocated $33,000 of the $73,000 contract price to a covenant not to compete. Although the defendants received full payment at the time of the closing, they never executed a written covenant not to compete. In 1992, the defendants resumed their solicitation of home inspection business in competition with the plaintiffs' business.

The plaintiffs' complaint sought a variety of remedies. They claimed that they were entitled: (1) to an injunction to enforce the defendants' covenant not to compete; (2) to damages for breach of the defendants' contractual obligation to deliver a written covenant not to compete and for misrepresentations on the part of the defendants; and (3) to damages and counsel fees because of the defendants' violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b.

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