Opinion
Thе 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
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).
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
Construction commenced on the senior living center project. On April 30, 2009, when the project was close to completion, thе 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.
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 сomments to the [defendants 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 conduсted a contested hearing on the plaintiffs application for a prejudgment remedy; the hearing continued with the plaintiffs case-in-chief on November 10, 22,
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 [Prаctice 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] $1,200,000. You can resolve that yourselves too. Okay?” The plaintiffs counsel indicated that he understood the court, and the defendants’ counsel asked: “Is the Court asking me to refrain from presenting evidence, because it’s decided
The defendants’ counsel then stated that he did not “wish to waste anyone’s time,” and that “[i]f the Court has decided the case, you’ve decided the case.” The court responded: “No. I have decided the case, based upon what prima facie probable cause is. ... I denied your motion because it’s not applicable to prejudgment remedy. . . . But I went ahead ... to go thrоugh each of the factual issues that you had raised, and I decided each of those, on a probable cause standard. You heard that. That’s the issue that I have to decide after I hear all the evidence. And you have the burden to prove it by preponderance of the evidence, not by probable cause standards. . . . You have the lunch break to talk to your client and decide what you wish to do. ... At two o’clock I’d come back on the bench. You want to call your first witness, or whatever happens to be donе. . . . But I have not decided this case. I have an open mind. You just saw my open mind. You asked me to decide the [$] 15-8. . . . And I rendered a decision on probable cause standards, based upon
On the basis of our review of the record, we cannot conclude that the court deprived the defendants of the opportunity to present their evidence in opposition to the plaintiffs application for a prejudgment remedy. The hearing transcript makes clear that the court addressed the merits of the plaintiffs application as part of its resolution of the defendants’ motion to dismiss and then suggested to the parties that after hearing the court’s initial thoughts on the merits, the parties should communicate with each other and attempt to resolve the issue without the need for further judicial intervention. The court explicitly informed the defendants’ counsel that it had not reached a final decision on the plaintiffs application, and invited the defendants to present whatever evidence they desired in the hopes of changing the court’s initial impressions of the cаse formed under the motion to dismiss standard. Yet, the defendants declined this invitation. Having chosen not to present their case, the defendants cannot now be heard to claim that the court denied them the opportunity to do so. Accordingly, we reject the defendants’ first claim on appeal.
Next, the defendants assert that the court erred in concluding that the plaintiffs action was not barred by the statute of limitations. Specifically, the defendants contend that the plaintiffs underlying claim accrued in November, 2005, and that the plaintiff had not yet served its complaint by the time the statute of limitations expired in November, 2011.
“The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo. . . . The factual findings that underpin that question of law, however, will not be disturbed unless shown to be clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Jarvis v. Lieder,
The record reveals the following additionаl facts relevant to our resolution of this claim. Paragraph 1 of the agreement defines what constitutes a “default” under the agreement, providing in relevant part: “Any of the following shall constitute a [d]efault: A declaration of [c]ontract default by the obligee or entity for whom a [c]ontract is performed; actual breach or abandonment of any [c]ontract; a breach of any provision of [the agreement]. . . .”
On April 30, 2009, the housing authority adopted a resolution finding that SRC had defaulted under its contractual obligations to the housing authority and terminating its contract with SRC. By letter dated May 7, 2009, counsel for the housing authority demanded that the plaintiff take over and complete the project “in accordance with the requirements of the performance bond.” The court treated this May, 2009 letter as the operative event triggering the statute of limitations and found the plaintiffs application to be timely.
In concluding that the plaintiffs underlying cause of action accrued in 2009, the court rejected the defendants’ argument that the statute of limitations actually began to run in 2005, when the plaintiff incurred $884 in attorney’s fees upon hiring an attorney to examine the terms of the contract between SRC and the housing authority.
After our review of the record, we conclude that there was evidence before the court supporting its finding that the statute of limitations began to run in May, 2009, when the housing authority first demanded that the plaintiff take over completion of the construction project following the declaration of SRC’s default and the termination of the contract between SRC and the housing authority. The court’s finding was not clearly erroneous, and, accordingly, we reject the defendants’ second claim on appeal.
Finally, the defendаnts contend that an identical action is pending in New York,
The record reveals the following additional relevant facts and procedural history. Together with its application for a prejudgment remedy, the plaintiff submitted, inter alia, an unsigned complaint to be filed in Connecticut Superior Court. The complaint asserted causes of action including specific enforcement of the agreement, indemnification, and exoneration. On May 6, 2011, the defendants moved to dismiss the plaintiffs application for lack of subject matter jurisdiction, claiming that in 2010, the plaintiff had filed an action in New York state court against the same parties and alleging the same causes of action as those set forth in the proposed complaint. The defendants asserted that because the application was based upon the plaintiffs anticipation of a judgment in their favor in the New York litigation, it was not an “action” upon which а prejudgment remedy
The defendants argue that Cahaly v. Benistar Property Exchange Trust Co.,
In General Electric Capital Corp. of Puerto Rico v. Rizvi,
Here, as in Rizvi, the unsigned complaint attached to the plaintiffs application for a prejudgment remedy reflects a contemplated action in our Superior Court seeking, inter alia, specific performance of the agreement, indemnification, and exoneration. The plaintiff was not seeking merely to enforce a judgment yet to be rendered in the New York action—indeed, the complaint is utterly silent about any action in New York or any anticipated judgment therein. Because the plaintiff here sought a prejudgment remedy on a contemplated domestic action to enforce the agreement, Cahaly has no bearing on the present matter, and the trial court properly denied the defendants’ motion to dismiss. See id.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
SRC was not named as a defendant in the underlying action and is not a party to this appeal.
Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidencе in the event the motion is not granted, without having reserved the right to do so and to the extent as if the motion had not been made.”
We do not reach the question of the propriety of a Practice Book § 15-8 motion in the prejudgment remedy context, as that issue is not directly implicated by the defendants’ claims on appeal.
Soltesz v. Miller,
The defendants assert that the plaintiffs underlying causes of action are subject to the six year statute of limitations for breach of contract. For purposes of this appeal, we assume without deciding that a six year statute of limitations; see General Statutes § 52-576; applies to the claims asserted in the plaintiffs complaint.
Both parties appear to agree that the statute of limitations would begin to run upon a default of the agreement; they disagree as to what constituted the operative default here.
Paragraph 3 of the agreement provides in relevant part that the indemni-tors “shall exonerate, indemnify and save the [plaintiff] harmless from and against every claim, loss, damage, demand, liability, cost, charge, suit, judgment, attorney’s fee, and expense which the [plaintiff] occurs in consequence of having executed, or procured the execution of the [bond].” Relying on Balboa Insurance Co. v. Zaleski,
As a factual matter, the defendаnts’ repeated assertion that the action in New York involves “identical parties” appears to be inaccurate. Indeed, the record reveals that SRC was named as a defendant in the New York action but was not named as a defendant in the unsigned complaint attached to the application for prejudgment remedy.
Although the defendants initially framed this issue as a challenge arising under the prior pending action doctrine, it is well settled that “the pendency of a prior action between the same parties аnd to the same ends is grounds for dismissal only where the actions are pending in the same jurisdiction. The pendency of an action in one state is not a ground for abatement of a later action in another state.” Sauter v. Sauter,
General Statutes § 52-278c (a) provides in relevant part that to obtain a prejudgment remedy, a plaintiff must file with the court a “proposed unsigned writ, summons and complaint,” attached to the plaintiffs “application, directed to the Superior Court to which the action is made returnable, for the prejudgment remedy requested.” In Cahaly v. Benistar Property Exchange Trust Co.,
The defendants attempt to distinguish Rizvi by asserting that the Connecticut and Puerto Rico actions at issue in that case alleged different, “independent,” causes of action, whereas the New York and Connecticut actions at issue here are purportedly “identicаl.” Our decision in Rizvi included no such requirement that the contemplated domestic action underlying a prejudgment remedy application be unique from any pending foreign actions. The defendants’ argument on this point is further belied by longstanding precedent establishing that the prior pending action doctrine is inapplicable where actions—even identical actions—are pending in different jurisdictions. See, e.g., Bayer v. Showmotion, Inc.,