Spicer v. Montagnese
| Decision Date | 28 November 2017 |
| Docket Number | FSTCV165015982S |
| Court | Connecticut Superior Court |
| Parties | Patricia SPICER v. John MONTAGNESE et al. |
UNPUBLISHED OPINION
Hon Kevin Tierney, J.T.R.
After five days of hearings, twenty-four exhibits, and post-hearing briefs filed by all parties, the plaintiff has submitted her claim for a prejudgment remedy on all three counts of the operative complaint, the First Amended Complaint dated March 21, 2017 (# 118.00). The First Count alleges contempt against John Montagnese, only, for willful failure to pay a $45, 000 monetary judgment entered in the Superior Court, Housing Session, at Norwalk on March 18, 2008 between Patricia Spicer as the then defendant and John Montagnese as the then plaintiff. The Second Count seeks fraudulent conveyance relief as to a certain real property on West Hill Road Stamford, Connecticut. The Third Count claims unjust enrichment. Both defendants are named in the Second Count and Third Count.
The action in chief has been commenced. Both defendants together filed an Answer, Special Defenses, and Counterclaims on January 31, 2017 (# 108.00). The Answer does not accurately track each paragraph of the later filed First Amended Complaint. The defendants’ two Special Defenses claim " payment in full accord and satisfaction of judgment" and " laches." A two-count Counterclaim claims unjust enrichment and vexatious litigation by both defendants. The plaintiff filed an Answer to the two-count Defendants’ Counterclaims on February 21, 2017 (# 111.00). The plaintiff appears to be claiming same sort of affirmative relief in that February 21, 2017 Answer (# 111.00, page 2 " Wherefore, The Plaintiff Claims:"). The plaintiff has yet to reply to the two Special Defenses. The pleadings are not closed. No party has filed a Certificate of Closed Pleadings.
The first issue for consideration by this court is the status of the underlying Housing Session proceeding. On January 30 2008 as plaintiff, John Montagnese, filed a summary process action against Patricia Spicer, as defendant, seeking a possession of the real property occupied by Patricia Spicer at West Hill Road, Stamford, Connecticut. This summary process action was returnable to the Superior Court, judicial district of Stamford/Norwalk, Housing Session at Norwalk and was assigned docket number SNSP-034683. Ex. 8. The parties actively litigated that summary process action from 2008 through and including 2011. Both parties appeared by counsel.
On March 18, 2008 both parties appeared in the Housing Court and entered into a one-page " Stipulated Agreement of the Parties." The parties used the preprinted form commonly used in Housing Session Summary Process judgments. Half of the language was the preprinted form. It was signed by both parties, both attorneys and the court on March 18, 2008. This " Stipulated Agreement of the Party" became a March 18, 2008 judgment of the Superior Court. Ex. 2, Ex. 8. The March 18, 2008 court order stated: " Judgment for Possession may enter in favor of the plaintiff(s) with a FINAL stay of execution through May 31, 2008." Paragraph 3 of the Stipulated Agreement of the Parties was handwritten and states: " Plaintiff agrees to pay defendant $75, 000.00 as follows: $15, 000.00 on or before March 31, 2008, $15, 000.00 on or before April 11, 2008, $45 000.00 on or before December 31, 2008." Ex. 2. Heather McKaye-Montagnese was not a party in the summary process litigation nor did she execute the " Stipulated Agreement of the Parties."
Although parties may not seek money damages in a summary process statutory proceeding, it is common for stipulations in summary process actions to contain orders of payments from one party to another. Atlantic Refining Co. v. O ’Keefe, 131 Conn. 528, 531 (1945); Webb v. Ambler, 125 Conn. 543, 551-52 (1939); Housing Authority of Norwalk v. Whitaker, Superior Court, judicial district of Stamford/Norwalk, Housing Session of Norwalk, Docket Number SPNO 9410-16560 (September 7, 1995, Tierney, J.) It is this March 18, 2008 Housing Session judgment that forms the basis of the First Count alleging contempt and the predicate for the fraudulent conveyance Second Count. It may also be the predicate for the Third Count alleging unjust enrichment.
The court finds the following facts and legal conclusions:
The plaintiff therein, John Montagnese, paid $15, 000.00 to the defendant, therein, Patricia Spicer, on or before March 31, 2008 as per the March 18, 2008 judgment. The plaintiff therein paid the second $15, 000.00 to the defendant therein on or before April 11, 2008 as per the March 18, 2008 judgment. Patricia Spicer vacated the real property pursuant to the March 18, 2008 judgment. The plaintiff herein, Patricia Spicer, is claiming that the $45, 000.00 due on or before December 31, 2008 has only been partially paid. She claims that all partial payments on the $45, 000.00 have been paid through the Housing Session and noted on its docket sheet that was marked in evidence. Ex. 8.
In effect the plaintiff herein, Patricia Spicer, is filing a lawsuit against the defendant herein, John Montagnese, for the unpaid $45, 000.00 due on or before December 31, 2008 when the plaintiff already possesses a Superior Court judgment for that same sum. The Housing Session is a regular session of the Superior Court. Judgments of the Housing Session are recognized as judgments of the Superior Court. The Superior Court including its Housing Session is a court of general jurisdiction. Gen. Stat. § 47a-70(a); Connecticut Sonesta Corporation v. Columbus Enterprises, Inc., Superior Court, Judicial District of Hartford/New Britain at Hartford, Housing Session, Docket Number 8102443 (June 11, 1981, Satter, J.).
An application for prejudgment remedy is a statutory procedure. It is the plaintiff’s obligation to show: " ... that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff." Gen. Stat. § 52-278c(a)(2). The standard of proof for the plaintiff is probable cause. The statute is silent concerning the defendant’s standard of proof as to any defenses. The defendants in this case are claiming that the plaintiff waited too long and that a third party, Ian Callanan, has made payment to the plaintiff in full on account of the $45, 000.00. There is no Appellate Court nor Supreme Court decision on defendant’s standard of proof. This court has found that the standard of proof of a defendant in a prejudgment remedy action is to prove its defense by a fair preponderance of the evidence, the ordinary standard of proof. Fusaro v. Malik, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket Number FST CV08-5008479 S (September 16, 2011, Tierney, J.T.R.) ; Intrigue Shipping, Inc. v. Shipping Associates, Inc., Superior Court, Judicial District of Stamford/Norwalk at Stamford, FST CV-13-5014113-S (December 13, 2013, Adams, J.T.R.) ; Sil/Carr Corporation v. Bartlett Brainard Eacott, Inc., Superior Court, Judicial District of Hartford, Docket Number HHD CV-12-5036086-S (June 26, 2012, Woods, J.) .
Judgments of the Superior Court are subject to a statute of limitations. General Statutes § 52-598(a) permits a party twenty years to execute on a judgment of the Superior Court and twenty-five years to enforce it by a separate action. Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 849 (2013). This March 18, 2008 judgment of the Superior Court, Housing Session for $45, 000.00 is subject to the above time limitations of General Statutes § 52-598(a) and as of the current date is well within both the twenty- and the twenty-five-year limitation periods. " A party obtaining a judgment for money damages in Connecticut has two means to enforce that judgment; it may seek an execution of the judgment or it may initiate an independent action." The Cadle Company v. Ogalin, 175 Conn.App. 1, 3, fn. 1 cert. denied 327 Conn. 930 (2017); General Statutes § 52-598(a). For some reason not explained to this court, the plaintiff, Patricia Spicer, has not sought to enforce the judgment in the Housing Session by way of an order of weekly payments, a wage execution, a property execution, examination of judgment debtor, prejudgment remedy, and/or garnishment of assets and monies due to the defendant, John Montagnese. In this court’s opinion the March 18, 2008 judgment is still in effect and fully enforceable in accordance with the above postjudgment Connecticut procedures.
In an issue of first impression our Appellate Court on July 25, 2017 determined that the plaintiff had the right to institute a separate suit even though the judgment was dated in 1994 and the statute of limitations of twenty years and twenty-five years had not yet run. The Cadle Company v. Ogalin, supra, 175 Conn.App. 9. Therefore this court finds that the plaintiff is within her rights to file a separate lawsuit on the underlying debt and the underlying March 18, 2008 judgment despite the fact that the current judgment in the Housing Session, Superior Court is in full force and effect and can be enforced in accordance with the well-known financial enforcement provisions of Connecticut postjudgment procedure.
A plaintiff’s complaint as amended claims attorneys fees in all three counts. " ... when it comes to attorneys fees Connecticut follows the American Rule ... Pursuant to that rule, attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." Ferri v. Powell -Ferri, 326 Conn. 438, 451 ...
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