6 Conn. App. 350 | Conn. App. Ct. | 1986
The named defendant appeals from the trial court’s denial of his motion to substitute a lien filed pur
The underlying action was instituted by the plaintiffs, Stephen and Bertha Feuser, against the defendants, Raymond Lampron and Linda Ruth Lampron, to collect money allegedly loaned by the plaintiffs to the defendants. The plaintiffs are the parents of Linda Lampron.
Initially, the plaintiffs obtained an ex parte prejudgment remedy order of attachment in the amount of $65,000 against the defendants’ interests in certain real property located in East Windsor, Connecticut. Subsequently, the plaintiffs obtained a judgment against Linda Lampron and a judgment lien was filed against her interest in the property. Raymond Lampron then sought a reduction of the prejudgment attachment by the amount of the judgment lien against Linda Lam-pron. The court reduced the attachment to $30,000. Thereafter, an unusual transaction occurred: the plaintiffs agreed to purchase the property from the defendants. In contemplation of the sale, the plaintiffs obtained a substituted prejudgment remedy order of attachment in the amount of $30,000 against the cash proceeds of the sale in lieu of the attachment against the real property interest of Raymond Lampron. The sale was consummated and Raymond Lampron thereafter purchased other real property in East Windsor. On January 9,1984, Raymond Lampron filed a motion
The basic claim of Raymond Lampron is that the trial court erred in denying his motion for substitution after finding the equity in the real property was between $20,000 and $42,000. He claims that the value of the real property and the proposed cash lien would provide the plaintiffs with a lien on “other property of the defendant which has an equal or greater net equity value than the amount secured” by the cash attachment. See General Statutes § 52-304. We agree.
“The procedure for dissolution of attachment by substitution of bond or lien is found in General Statutes § 52-304, which provides that ‘[wjhen any estate is attached . . . the defendant may apply in writing to the court in which such action may be pending, or any judge thereof, to dissolve the attachment lien upon the substitution of (a) a bond with surety or (b) a lien on any other property of the defendant which has an equal or greater net equity value than the amount secured by such attachment.’ ” Brainard v. Smyth Mfg. Co., 178 Conn. 250, 252, 423 A.2d 881 (1979). The purpose
Upon application pursuant to this statutory proceeding, the trial court may only review the request as to the sufficiency of the offered lien or bond. Sachs v. Nussenbaum, 92 Conn. 682, 688, 104 A. 393 (1918). In the present case, the trial court found that the property’s fair market value, less a prior encumbrance, was $42,000. The trial court also found that the liquidation value, less the prior encumbrance, was $20,000. Either figure, coupled with the $10,000 lien on the defendant’s bank account, equals or exceeds the $30,000 secured by the attachment. The trial court refused, however, to order the substitution because of the instability of the real estate market. We hold that the trial court’s speculation as to fluctuating real estate values is not authorized by the plain wording of the statute, and we decline to expand such language.
The plaintiffs argue that the trial court could have found the lien inadequate by considering liquidation costs. The court made no such finding. Rather, it denied the request because the value of the security was subject to changing market conditions.
In Brainard v. Smyth Mfg. Co., supra, 252, the Supreme Court held that the trial court’s use of fair market value to grant the substitution pursuant to § 52-304 was proper. We now hold that the trial court’s denial of the defendant’s application for substitution, after finding that the fair market value equalled or exceeded the amount of the original attachment, was improper.
There is error, the trial court’s denial of the named defendant’s application to substitute a lien for the attachment is set aside and the case is remanded with direction to grant that application.
Mr. and Mrs. Lampron received money from the plaintiffs to purchase a house. The Lamprons claim the money was a gift. A default judgment was entered against Mrs. Lampron. She is not involved in this appeal.
Where a statute, such as the one governing attachments, infringes upon a person’s common law right to alienate freely his property, “ ‘it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.’ ” Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983), quoting Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). It is not within the power of
We acknowledge that the legislative debate concerning § 52-304 makes a reference to the exercise of judicial discretion in such matters. Such commentary from the floor of the legislature, however, may not add to the otherwise plain language of the statute. Hayes v. Smith, 194 Conn. 52, 57-58, 480 A.2d 425 (1984).