Travelers Cas. & Sur. Co. of Am. v. Caridi

• Decision Date: 13 August 2013
• Docket Number: No. 34559.,34559.
• Citation: 73 A.3d 863,144 Conn.App. 793
• Parties: TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA v. Michael CARIDI et al.
• Court: Connecticut Court of Appeals

144 Conn.App. 793

73 A.3d 863

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA

v.Michael CARIDI et al.

No. 34559.

Appellate Court of Connecticut.

Argued April 10, 2013.

Decided Aug. 13, 2013.

Ralph J. Monaco, New London, with whom, on the brief, was Jonathan T. Lane, for the appellants (defendants).

Jared Cohane, Hartford, with whom was Timothy T. Corey, Hartford, for the appellee (plaintiff).

BEAR, SHELDON and PELLEGRINO, Js.

PELLEGRINO, J.

The defendants, Michael Caridi and Jill DeBiasi Caridi, appeal from the judgment of the trial court granting an application for a prejudgment remedy filed by the plaintiff, Travelers Casualty and Surety Company of America. The defendants claim that the court improperly (1) prejudged the merits of the plaintiff's applicationbefore the defendants' presentation of their evidence, thereby effectively precluding them from presenting their case, (2) found that the plaintiff's action was timely after concluding that the statute of limitations began to run in 2009, rather than in 2005, and (3) concluded that it had jurisdiction over the plaintiff's action when a purportedly identical action between the parties also was pending in New York. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our disposition of this appeal. Michael Caridi is the president of SRC Construction Corporation of Monroe, Inc. (SRC).¹ On or about April 24, 2002, SRC entered into a construction contract with the Atlantic City Housing Authority (housing authority) for the construction of a senior living center in Atlantic City, New Jersey. As a condition for entering into the contract, SRC was required to obtain a performance and payment bond from a surety company. In August, 2001, SRC arranged for the issuance of such a bond with the plaintiff, a surety company. The plaintiff and SRC entered into the performance and payment bond on June 14, 2002.

A general agreement of indemnity (agreement) dated August 22, 2001, was executed by the plaintiff to SRC. The agreement identified the plaintiff as the “Company” and identified the other parties to the agreement as “Indemnitor.” There were three indemnitors under the agreement: the defendants, as individual indemnitors; and SRC, as corporate indemnitor. The agreement concerned certain bonds that “have heretofore been or may hereafter be required by, for, or on behalf of the Indemnitor,” and provided that “[a]s a prerequisite to the execution of such [b]onds, the Company requires complete indemnification.”

Construction commenced on the senior living center project. On April 30, 2009, when the project was close to completion, the housing authority terminated its construction contract with SRC. By letter to the plaintiff dated May 7, 2009, the housing authority demanded “that in accordance with the requirements of the performance bond, [the plaintiff] take over and complete the project.” The plaintiff thereafter arranged for the completion of the project, as required by the terms of the performance and payment bond.

On March 8, 2011, the plaintiff filed an application for prejudgment remedy seeking to secure the sum of $1,276,662. In the unsigned complaint attached to its application, the plaintiff alleged, inter alia, that it had paid $886,125 from its reserves to satisfy claims arising under the performance and payment bond, and that it might be required to pay an additional $390,537 for future claims arising under the bond. The plaintiff further asserted that the defendants had failed to satisfy their obligations under the agreement; the proposed complaint sought, inter alia, specific performance of the agreement and indemnification.

The defendants moved to dismiss the application on May 6, 2011, claiming that an identical action was pending in New York state court. The court denied the defendants' motion on July 22, 2011. Following briefing by the parties and a contested hearing, the court granted the application by issuing a prejudgment remedy in favor of the plaintiff in the amount of $1,272,630.95 and authorizing the attachment of certain real estate located in Greenwich, Connecticut. This appeal followed.Additional facts and procedural history will be set forth as necessary.

We begin by setting forth the standard of review and general legal principles relevant to this appeal. Our Supreme Court has recognized that appellate “review of the granting of a prejudgment remedy is very circumscribed.... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error.” (Citation omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2008). “[T]he clear error standard in this context is a heightened standard of deference that exceeds the level of deference afforded under the abuse of discretion standard. Therefore, [an appellate] court will overrule the trial court's determination on a prejudgment remedy only if [it is] left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., at 138 n. 6, 943 A.2d 406.

I

The defendants first claim that the court improperly predetermined the outcome of the prejudgment remedy application before the defendants had the opportunity to submit their evidence, effectively precluding them from presenting a defense. Specifically, the defendants assert that the court “made comments to the [d]efendants that showed the court had decided the merits of the case before the [defendants] presented any evidence or submitted any defense, other than cross examination,” which purportedly violated the defendants' due process rights to a meaningful hearing prior to the attachment of their property. We are not persuaded.

The record reveals the following additional facts and procedural history relevant to the resolution of this claim. Commencing on November 9, 2011, the court conducted a contested hearing on the plaintiff's application for a prejudgment remedy; the hearing continued with the plaintiff's case-in-chief on November 10, 22, [144 Conn.App. 798]and 29, 2011. At the conclusion of the plaintiff's casein-chief, on November 29, 2011, the defendants moved to dismiss pursuant to Practice Book § 15–8 for failure to make out a prima facie case. ² The court denied the defendants' motion in an oral ruling, concluding, inter alia, that Practice Book § 15–8 is inapplicable in the context of a prejudgment remedy proceeding because § 15–8 references the “trial of any issue of fact,” and a prejudgment remedy hearing is not a trial. ³ The court further rejected the defendants' substantive arguments in favor of dismissal, referencing the evidence submitted by the plaintiff and determining that the plaintiff had satisfied the probable cause standard with respect to the elements of its prima facie case.

At the conclusion of its oral ruling, the court stated: “I did forty-five minutes [of an oral decision]. Mr. Monaco [the defendants' counsel] the handwriting's on the wall. Isn't it? Isn't the handwriting on the wall? You asked for [Practice Book § ] 15–8, and I made some rulings that may very well affect the prejudgment remedy decision on the merits. You have a couple minutes to consider that with your client. And you'll have some time to talk about—Counsel, I'm not offended with a prejudgment remedy at less [than] $1,200,000. You can resolve that yourselves too. Okay?” The plaintiff's counsel indicated that he understood the court, and the defendants' counsel asked: “Is the Court asking me to refrain from presenting evidence, because it's decided the case?” The court responded: “No. You asked me to decide the issues on [§ ] 15–8. I did. I decided the issues. You heard me decide the issues. You heard me decide issues that relate to the essence of the case.... You asked me to do that. I didn't have to do that. But you asked me to do it. I did it. Okay? So, you can present all the evidence you want to. I told you, you have ten days in this case. You have five days. Somebody said a day, I said no, it's ten days. I'm ready to do ten days. I'll do ten days, but I'm just giving you fair warning.... You have the right to put on evidence. You lose the case, you have a right to appeal, and test it all on appeal. That's perfectly all right. I'm not going to deprive you of anything. But I don't have a—I have an open mind. I don't have a closed mind.” (Emphasis added.)

The defendants' counsel then stated that he did not “wish to waste anyone's time,” and that “[i]f the Court has decided the case, you've decided the case.” The court responded: “No. I have decided the case, based upon what prima facie probable cause is.... I denied your motion because it's not applicable to prejudgment remedy.... But I went ahead ... to go through each of the factual issues that you had raised, and I decided each of those, on a probable cause standard. You heard that. That's the issue that I have to decide after I hear all the evidence. And you have the burden to prove it by preponderance of the evidence, not by probable cause standards.... You have the lunch break to talk to your client and decide what you wish to do.... At two o'clock I'd come back on the bench. You want to call your first witness, or whatever happens to be done.... But I have not decided this case. I have an open mind. You just saw my open mind. You asked me to decide the [§ ] 15–8.... And I rendered a decision on probable cause standards, based upon the plaintiff's case. Your evidence may show me other wise. I have an open mind.... So it's up to your client to figure out whether I can change my mind. You can make that decision. Okay? ” (Emphasis added.) Upon return from the lunch break, the defendants' counsel informed the court that “based on the Court's rulings on the [§ ] 15–8 motion, and comments immediately preceding our lunch break, [...