1 Conn. App. 188 | Conn. App. Ct. | 1983
This case raises the narrow issue of whether, after the granting of a prejudgment remedy ex parte, the court, at the hearing on the motion to dissolve the attachment, must determine the question solely on the basis of the sufficiency of probable cause in the supporting affidavit or on the basis of the affidavit and all of the evidence adduced at the hearing. The plaintiff, Self-Service Sales Corporation, and the defendants Curtiss H. Heinz and Ellen A. Heinz allegedly entered into a contract whereby the plaintiff agreed to supply amusement devices and cigarette vending machines to the Heinzes' cafe. They were to receive certain commissions based on the receipts from the machines. Under the contract, the Heinzes were not to permit the sale of products of the same kind in their cafe through any vending machines other than the plaintiff's. The defendant Gerald W. Sibley was allegedly permitted to put his vending machines in the cafe in violation of the aforementioned contract. The plaintiff brought this action against Curtiss and Ellen Heinz for an alleged breach of contract and against Gerald Sibley for an allegedly tortious interference with a contract. The plaintiff sought and was granted an ex parte prejudgment remedy in the form of a real estate attachment in the amount of $25,000. The application for a prejudgment remedy was supported *190 by the complaint and an affidavit.1 All three defendants moved to set aside the prejudgment attachment on the ground that the application was insufficient on its face. The motion to set aside was granted as to Ellen Heinz, but denied as to Curtiss Heinz and Gerald W. Sibley. The defendant Sibley appeals from the denial of his motion to dissolve the attachment.2
The defendant Sibley briefed the following issues: (1) did the trial court err in finding that the plaintiff's application for a prejudgment remedy was sufficient to establish probable cause; and (2) did the court err in refusing to dissolve the prejudgment remedy because of the plaintiff's failure to establish the amount of monetary damages for which the defendant Sibley would be liable?3
The defendant Sibley's principal argument is that the application submitted to the court was insufficient on its face to warrant the granting of the attachment. He also argues that, even given the affidavit and the evidence at the hearing, there was insufficient evidence to support a finding of probable cause. The plaintiff claims that the court is not limited at the hearing to consideration of the complaint and the affidavit, and that there was sufficient evidence to justify a finding of probable cause. *191
At the prejudgment remedy hearing, the defendant Sibley claimed that the trial court should review only the complaint and the affidavit. Sibley offered no testimony at the hearing. His argument for such a narrow reading of the prejudgment remedy statute is two-pronged. First, he claims that General Statutes
The statutory argument flies in the face of the clear statutory scheme requiring a hearing when requested on probable cause to comport with constitutional requirements. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation,
General Statutes
A prejudgment remedy is available to an applicant if a judge determines that there is sufficient probable cause. See General Statutes
A brief examination of three Connecticut cases will suffice to justify the court's conclusions. In Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra, 586, the court concluded that the trial court's finding of probable cause was not supported "by the affidavit or the corrected finding" of the trial court made after a hearing and could not stand. In Essex Group, Inc. v. Ducci Electric Co.,
The defendant Sibley misreads Kukanskis v. Griffith,
There was no hearing in the Kukanskis case. The case must be considered in light of its peculiar fact situation.
The court considered only the affidavit, as there was no other evidence before it. In Kukanskis v. Griffith, supra, 505, the court's citation of Fermont Division, Dynamics Corporation of America, Inc. v. Smith,
The court concludes that Kukanskis v. Griffith, supra, and the statutory scheme are reconciled by holding that *194 the prejudgment remedy statute can only be invoked successfully, if challenged at a hearing, by factual rather than conclusory evidence of probable cause based on the affidavit and evidence at the hearing, if any.6
Concerning the defendant Sibley's claim of insufficient evidence to find probable cause, the plaintiff need only show the probable validity of its claim and need not prove the case by a fair preponderance of the evidence. Augeri v. C. E. Wooding Co.,
From an examination of the record and pleadings as a whole, the court cannot find that the trial court's conclusion was clearly erroneous. Practice Book 3060D; Pandolphe, 5 Auto Parts, Inc. v. Manchester,
There is no error.
In this opinion the other judges concurred.