*An order of the court granting or denying a prejudgment remedy pursuant to provisions of chapter is a final judgment from which an appeal may be taken. 167 C. 623. Chapter makes no reference to dissolution of an attachment; hence does not dissolve attachments previous to its enactment. 168 C. 336. Chapter has no application to the enforcement of mechanics' liens. Id., 371. Cited. 172 C. 577; 181 C. 125; 188 C. 69; 193 C. 174; 196 C. 359; 203 C. 475; 208 C. 13; 213 C. 612; 219 C. 620; 220 C. 152; 226 C. 757; 229 C. 455; 233 C. 352; 238 C. 172. There is no right of immediate appeal from the denial of a collateral estoppel defense in a prejudgment remedy proceeding, and appeal can be brought once trial court issues ruling on prejudgment remedy application. 300 C. 476.
Cited. 3 CA 404; 5 CA 142; 6 CA 180; 10 CA 618; 11 CA 420; 19 CA 256; 21 CA 191; 28 CA 221; 29 CA 541; 31 CA 365; Id., 652; 33 CA 223; 34 CA 22; Id., 801; 39 CA 149.
Cited. 31 CS 122. Refusal to validate an attachment constitutes a final judgment and is appealable. Id., 507. Prejudgment remedy available to prevailing plaintiff while case on appeal. 35 CS 49. Cited. 38 CS 98.
Sec. 52-278b. Availability of prejudgment remedy.
Sec. 52-278g. Motion to preserve existing prejudgment remedies.
Sec. 52-278h. Application for prejudgment remedy filed by the plaintiff.
Sec. 52-278i. (Formerly Sec. 52-282). Order for prejudgment remedy on set-off or counterclaim.
Sec. 52-278j. Dismissal or withdrawal of prejudgment remedy.
Sec. 52-278k. Modification of prejudgment remedy.
Sec. 52-278m. When personal service not required.
Sec. 52-278n. Motion to disclose property. Order for disclosure. Substitution of surety.
Sec. 52-278a. Definitions. The following terms, as used in sections 52-278a to 52-278g, inclusive, shall have the following meanings, unless a different meaning is clearly indicated from the context:
(a) “Commercial transaction” means a transaction which is not a consumer transaction.
(b) “Consumer transaction” means a transaction in which a natural person obligates himself to pay for goods sold or leased, services rendered or moneys loaned for personal, family or household purposes.
(c) “Person” means and includes individuals, partnerships, associations, limited liability companies and corporations.
(d) “Prejudgment remedy” means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.
(e) “Property” means any present or future interest in real or personal property, goods, chattels or choses in action, whether such is vested or contingent.
(P.A. 73-431, S. 1, 8; 73-616, S. 65, 67; P.A. 86-403, S. 84, 132; P.A. 95-79, S. 176, 189.)
History: P.A. 73-616 made technical correction in original act; P.A. 86-403 made technical change in Subdiv. (b); P.A. 95-79 redefined “person” to include limited liability companies, effective May 31, 1995.
Cited. 172 C. 577; 176 C. 432; 178 C. 393; 181 C. 524; 184 C. 85; 188 C. 69; 196 C. 359; 208 C. 13; 220 C. 904; 222 C. 361; Id., 541; 238 C. 172.
Cited. 4 CA 510; 5 CA 296; 6 CA 591; 14 CA 579; 19 CA 256; 28 CA 809; 29 CA 48; 32 CA 118; 46 CA 399.
Self-help repossession is not covered by prejudgment remedies act. 31 CS 152. Cited. 38 CS 98.
Subdiv. (d):
“Combination” of prejudgment remedies limited to combination of the four remedies enumerated in definition of “prejudgment remedy”. 261 C. 721.
May not be extended to include a temporary injunction so as to permit appeal of an injunction under Sec. 52-278l. 25 CA 28.
Meaning of “final judgment” discussed; prejudgment remedy available to prevailing plaintiff while case on appeal. 35 CS 49.
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Sec. 52-278b. Availability of prejudgment remedy. Notwithstanding any provision of the general statutes to the contrary, no prejudgment remedy shall be available to a person in any action at law or equity (1) unless he has complied with the provisions of sections 52-278a to 52-278g, inclusive, except an action upon a commercial transaction wherein the defendant has executed a waiver as provided in section 52-278f, or (2) for the garnishment of earnings as defined in subdivision (5) of section 52-350a.
(P.A. 73-431, S. 2, 8; P.A. 90-149, S. 2.)
History: P.A. 90-149 added Subdiv. (2) prohibiting the garnishment of earnings as a prejudgment remedy.
Cited. 176 C. 432; 181 C. 524; 184 C. 85; 188 C. 69; 208 C. 13; 222 C. 361; Id., 541; 232 C. 216.
Cited. 1 CA 188; 4 CA 510; 14 CA 579; 28 CA 809; 32 CA 118; 33 CA 223; 34 CA 801; 46 CA 399.
Cited. 38 CS 98. Subdiv. (2): Since commissions a real estate salesperson receive are debts accruing by reason of personal service, they are “earnings” under Sec. 52-350a(5) and are exempt from garnishment in a prejudgment remedy application. 50 CS 460.
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Sec. 52-278c. Documents required. Forms. Scheduling a hearing. Service on defendant. Notice and claim form. Request for hearing by defendant. (a) Except as provided in sections 52-278e and 52-278f, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents:
(1) An application, directed to the Superior Court to which the action is made returnable, for the prejudgment remedy requested;
(2) An affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient 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;
(3) A form of order that a hearing be held before the court or a judge thereof to determine whether or not the prejudgment remedy requested should be granted and that notice of such hearing complying with subsection (e) of this section be given to the defendant;
(4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing;
(b) The application, order and summons shall be substantially in the form following:
APPLICATION FOR PREJUDGMENT REMEDY
To the Superior Court for the judicial district of ....
The undersigned represents:
1. That .... is about to commence an action against .... of .... (give name and address of defendant) pursuant to the attached proposed unsigned Writ, Summons, Complaint and Affidavit.
2. 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 applicant and that to secure the judgment the applicant seeks an order from this court directing that the following prejudgment remedy be granted to secure the sum of $ ....:
a. To attach sufficient property of the defendant to secure such sum:
b. To garnishee ...., as he is the agent, trustee, debtor of the defendant and has concealed in his possession property of the defendant and is indebted to him.
c. (Other Type of Prejudgment Remedy Requested.)
Name of Applicant
By ....
His Attorney
ORDER
The above application having been presented to the court, it is hereby ordered, that a hearing be held thereon on .... at .... a.m. and that the plaintiff give notice to the defendant in accordance with section 52-278c of the general statutes of the pendency of the application and of the time when it will be heard by causing a true and attested copy of the application, the proposed unsigned writ, summons, complaint, affidavit and of this order, together with such notice as is required under subsection (e) of section 52-278c, to be served upon the defendant by some proper officer or indifferent person on or before ...., and that due return of service be made to this court.
Dated at Hartford this .... day of ...., 20...
Clerk of the Court
SUMMONS
To a state marshal of the county of ...., or either constable of the town of ...., in said county,
Greeting:
By authority of the state of Connecticut, you are hereby commanded to serve a true and attested copy of the above application, unsigned proposed writ, summons, complaint, affidavit and order upon ...., of ...., by leaving the same in his hands or at his usual place of abode on or before .....
Hereof fail not but due service and return make.
Dated at .... this .... day of .... 20...
Commissioner of the Superior Court
(c) The clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for the hearing on the application and sign the order of hearing and notice except that if the application includes a request for a temporary restraining order, the court or a judge of the court shall act on the application for the temporary restraining order, fix a date for the hearing on the prejudgment remedy and sign the order of hearing and notice. The entry fee shall be then collected and the duplicate original document shall be placed in the court file.
(d) The clerk shall deliver to the applicant's attorney the original of the documents for service. Service having been made, the original documents shall be returned to the court with the endorsement by the officer of his actions.
(e) An application for a prejudgment remedy shall be accompanied by a notice and claim form, in such form as may be prescribed by the Office of the Chief Court Administrator, containing the following language: “YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, THAT YOU MAY WISH TO EXERCISE CONCERNING THIS APPLICATION FOR A PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE THE RIGHT TO A HEARING: (1) TO OBJECT TO THE PROPOSED PREJUDGMENT REMEDY BECAUSE YOU HAVE A DEFENSE TO OR SET-OFF AGAINST THE ACTION OR A COUNTERCLAIM AGAINST THE PLAINTIFF OR BECAUSE THE AMOUNT SOUGHT IN THE APPLICATION FOR THE PREJUDGMENT REMEDY IS UNREASONABLY HIGH OR BECAUSE PAYMENT OF ANY JUDGMENT THAT MAY BE RENDERED AGAINST YOU IS COVERED BY ANY INSURANCE THAT MAY BE AVAILABLE TO YOU; (2) TO REQUEST THAT THE PLAINTIFF POST A BOND IN ACCORDANCE WITH SECTION 52-278d OF THE GENERAL STATUTES TO SECURE YOU AGAINST ANY DAMAGES THAT MAY RESULT FROM THE PREJUDGMENT REMEDY; (3) TO REQUEST THAT YOU BE ALLOWED TO SUBSTITUTE A BOND FOR THE PREJUDGMENT REMEDY SOUGHT; AND (4) TO SHOW THAT THE PROPERTY SOUGHT TO BE SUBJECTED TO THE PREJUDGMENT REMEDY IS EXEMPT FROM SUCH A PREJUDGMENT REMEDY.”
(f) The notice and claim form required under subsection (e) of this section shall contain (1) the name and address of any third person holding property of the defendant who is to be made a garnishee by process preventing the dissipation of such property and (2) a statement of the procedure set forth in subsection (g) of this section for contesting the application for a prejudgment remedy or for claiming an exemption.
(g) A defendant may request a hearing to contest the application for a prejudgment remedy, assert any exemption or make a request concerning the posting or substitution of a bond. The hearing may be requested by any proper motion or by return to the Superior Court of a signed claim form that indicates, by the checking of the appropriate box on the claim form, whether the claim is an assertion of a defense, counterclaim, set-off or exemption, an assertion that any judgment that may be rendered is adequately secured by insurance, an assertion that the amount sought in the application for the prejudgment remedy is unreasonably high, a request that the plaintiff be required to post a bond to secure the defendant against any damages that may result from the prejudgment remedy or a request that the defendant be allowed to substitute a bond for the prejudgment remedy.
(P.A. 73-431, S. 3, 8; P.A. 81-410, S. 6; P.A. 83-587, S. 64, 96; P.A. 87-589, S. 14, 87; P.A. 90-230, S. 67, 101; P.A. 93-431, S. 1, 10; P.A. 00-99, S. 111, 154.)
History: P.A. 81-410 substituted “superior court for the judicial district of” for “court”, “sufficient property of the defendant to secure such sum” for “the following described real property of the defendant located in the town of” and eliminated the description requirement; and substituted “possession property” for “hands the goods, effects and estate” and “actions” for “doings”; P.A. 83-587 made a technical amendment to Subsec. (d); P.A. 87-589 made technical changes, restoring text inadvertently omitted because of computer error; P.A. 90-230 corrected an omission; P.A. 93-431 amended Subsec. (a) by requiring in Subdiv. (2) that the affidavit set forth facts sufficient 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 favor of the plaintiff and by providing in Subdiv. (3) that the form of order require notice of the hearing “complying with subsection (e) of this section” be given to the defendant, amended Subsec. (b) to require that the plaintiff represent in his application 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 favor of the applicant and to provide that the order require the plaintiff to give notice to the defendant “in accordance with section 52-278c of the general statutes” and that “such notice as is required under subsection (e) of section 52-278c” be served upon the defendant, added Subsec. (e) requiring the application to be accompanied by a notice and claim form and specifying the language concerning the rights of the defendant contained therein, added Subsec. (f) requiring the notice and claim form to contain the name and address of any third person holding property of the defendant who is to be made a garnishee and the procedure to contest the application or claim an exemption, and added Subsec. (g) authorizing a defendant to request a hearing and specifying the manner in which a hearing may be requested, effective January 1, 1994; P.A. 00-99 replaced reference to sheriff and deputy sheriff with state marshal in Subsec. (b), effective December 1, 2000; (Revisor's note: In 2001 the references in Subsec. (b) of this section to the date “19..” were changed editorially by the Revisors to “20..” to reflect the new millennium).
Cited. 172 C. 577; 173 C. 426; 176 C. 432; 178 C. 393; 181 C. 524; 184 C. 85; 185 C. 37; 186 C. 329; 188 C. 69; 193 C. 174; 196 C. 359; 200 C. 406; 203 C. 475; 208 C. 13; 213 C. 612; 222 C. 361; Id., 541. Not unconstitutionally vague on its face. 224 C. 29. Cited. 226 C. 773; Id., 812.
Cited. 1 CA 188; 3 CA 404; 4 CA 510; 5 CA 90; 6 CA 180; 11 CA 420; 14 CA 579; 21 CA 661; 25 CA 28; 27 CA 621; 28 CA 809; 32 CA 118; 33 CA 223; 34 CA 303; Id., 801; 39 CA 149; Id., 183; 45 CA 324; 46 CA 399. Court has subject matter jurisdiction over plaintiff's application when plaintiff is seeking a prejudgment remedy on a contemplated domestic action to enforce an agreement. 144 CA 793.
Cited. 33 CS 693; 38 CS 98.
Subsec. (a):
Plaintiff cannot base application for prejudgment remedy on action to enforce a foreign judgment until the foreign judgment is obtained; action referred to in Subdiv. (1) must be an action that plaintiff is about to bring in Connecticut upon which a Connecticut court will render judgment; prejudgment remedy statutes do not provide authorization for issuance of prejudgment remedy to secure an action brought to enforce a potential foreign judgment. 268 C. 264.
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Sec. 52-278d. Hearing on prejudgment remedy application. Determination by the court. Service of process. Stay of order. Posting of bond by plaintiff. (a) The defendant shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of (1) whether or not 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 defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff, (2) whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance, (3) whether the property sought to be subjected to the prejudgment remedy is exempt from execution, and (4) if the court finds that the application for the prejudgment remedy should be granted, whether the plaintiff should be required to post a bond to secure the defendant against damages that may result from the prejudgment remedy or whether the defendant should be allowed to substitute a bond for the prejudgment remedy. If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court. The court shall not grant the prejudgment remedy if the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.
(b) The clerk, upon the granting of the application for prejudgment remedy, shall deliver to the applicant's attorney the proposed writ, summons and complaint for service of process. If the court does not grant the application for any reason, including the failure of the plaintiff to serve the defendant, only a summons and complaint may be issued and served. In either event, the plaintiff may alter the return date of the writ, summons and complaint or the summons and complaint, as the case may be. No additional entry fee shall be collected upon the return of such action to court unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.
(c) If an application for a prejudgment remedy is granted and the defendant moves the court for a stay, the court may, if it determines justice so requires, stay such order if the defendant posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damage which may accrue as a result of such stay.
(d) At any hearing on an application for a prejudgment remedy held pursuant to this section or upon motion of the defendant at any time after the granting of such application, the defendant may request that the plaintiff post a bond, with surety, in an amount determined by the court to be sufficient to reasonably protect the defendant's interest in the property that is subject to the prejudgment remedy against damages that may be caused by the prejudgment remedy. If the court grants the defendant's request, the bond shall provide that if judgment in the matter is rendered for the defendant or if the prejudgment remedy is dismissed or dissolved, the plaintiff will pay to the defendant damages directly caused by the prejudgment remedy.
(e) In determining whether to grant a request for a bond and, if granted, the amount of the bond to be set, the court shall consider the nature of the property subject to the prejudgment remedy, the methods of retention or storage of the property and the potential harm to the defendant's interest in the property that the prejudgment remedy might cause.
(f) Notwithstanding the provisions of subsections (d) and (e) of this section, the court shall waive any bond or lower the amount of any bond ordered pursuant to subsection (e) of this section, upon request for such a waiver by an indigent plaintiff, if, after hearing and a consideration of the probability that a judgment will be rendered in the matter in favor of the plaintiff, the potential harm to the defendant's interest in the property that the prejudgment remedy might cause, and the likelihood that the defendant will dissipate such property prior to judgment, the court finds that the plaintiff should be entitled to the protections of a prejudgment remedy.
(P.A. 73-431, S. 4, 8; P.A. 75-530, S. 32, 35; P.A. 76-21, S. 4; 76-401, S. 1, 7; P.A. 86-403, S. 85, 132; P.A. 93-431, S. 2, 10.)
History: P.A. 75-530 deleted provision allowing plaintiff reimbursement for entry fee if he does not serve the writ, summons and complaint upon his request; P.A. 76-21 qualified provision prohibiting collection of additional entry fee upon return of action to court by adding “unless the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j”; P.A. 76-401 divided section into Subsecs., added language of P.A. 76-21 amendment to provision re grant of requested or modified prejudgment remedy applied for in Subsec. (a), clarified provisions re clerk's delivery of writ summons and complaint and re service of summons and complaint where court fails to grant the application and added Subsec. (c) re stay of order; P.A. 86-403 made technical change in Subsec. (a); P.A. 93-431 amended Subsec. (a)(1) to replace the issue of “whether or not there is probable cause to sustain the validity of the plaintiff's claim” with “whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff” and added Subsecs. (a)(2) to (4), inclusive, re whether the judgment is secured by insurance, whether the property is exempt from execution and whether the plaintiff should be required to post a bond or the defendant should be allowed to substitute a bond, and to require the court to take into account “any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance”, and provide that the court shall grant the prejudgment remedy if it finds the plaintiff has shown probable cause “that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought” rather than probable cause “to sustain the validity of his claim” and finds “that a prejudgment remedy securing the judgment should be granted”, amended Subsec. (c) to replace “If a prejudgment remedy is issued” with “If an application for a prejudgment remedy is granted”, added Subsec. (d) authorizing a defendant to request the plaintiff to post a bond and specifying the provisions of such a bond, added Subsec. (e) specifying the factors a court shall consider in determining to grant a request for a bond and in setting the amount of such a bond, and added Subsec. (f) requiring the court to waive or lower a bond when requested by an indigent plaintiff and upon finding that the plaintiff should be entitled to the protections of the prejudgment remedy, effective January 1, 1994.
Cited. 172 C. 577; 173 C. 426; 176 C. 432; 181 C. 42; Id., 524; 184 C. 85; 185 C. 37. A hearing on prejudgment remedy application under section is not occasion to test plaintiff's rights against garnishees. 186 C. 329. Cited. 188 C. 69; 200 C. 406; 203 C. 475; 208 C. 13; 218 C. 162; 222 C. 361; Id., 541. Not unconstitutionally vague on its face. 224 C. 29. Cited. 226 C. 773; 229 C. 455; 236 C. 746.
Cited. 1 CA 93; Id., 519; 4 CA 510; 14 CA 579; 21 CA 661; 26 CA 804; 28 CA 809; 32 CA 118; 33 CA 223; 34 CA 216; Id., 801; 39 CA 183; 46 CA 399. Prejudgment remedy ordered by court is improper where court made no finding of probable damages. 68 CA 685.
Quantum of proof needed for prejudgment remedy less than that required to sustain final judgment. 30 CS 337. Cited. 38 CS 98; 42 CS 460.
Subsec. (a):
Cited. 189 C. 333. The hearing in probable cause is not contemplated to be a full scale trial on the merits of plaintiff's claim. 193 C. 174. Cited. 196 C. 359; 213 C. 612; 224 C. 483. “Or as modified by the court” encompasses the power to require whatever security is constitutionally necessary. 226 C. 773. Cited. Id., 812.
Cited. 1 CA 188; 3 CA 404; 5 CA 90; 6 CA 180; 11 CA 420; 25 CA 16; 31 CA 652; 34 CA 22; Id., 303; Id., 801; 41 CA 750. Failure to provide hearing for either party to present evidence concerning application for prejudgment remedy found to be a procedural flaw requiring remand. 56 CA 114. Court may allow plaintiff to orally amend application and may entertain such amended application at the prejudgment remedy hearing; court must consider potential counterclaims during a hearing on application for prejudgment remedy, even when the counterclaims have not been filed. 68 CA 685. Phrase “in the matter” not restricted to lawsuits pending in Connecticut courts; prejudgment remedy statutes intended to apply either before or after a lawsuit is filed to secure property of defendant in Connecticut should plaintiff obtain judgment in any court; out of state judgment may be registered in Connecticut as foreign judgment to be given same effect as judgment of a court of this state. 73 CA 267. Statute clearly and unambiguously does not preclude court from granting prejudgment remedy order that authorizes attachment for amount less than amount sought in application for prejudgment remedy and does not require court, before issuing such order for a lesser amount, to determine that there exists probable cause that a judgment in at least amount sought in the application for prejudgment remedy will be rendered in the matter in favor of plaintiff utility company. 89 CA 164. To justify issuance of a prejudgment remedy, probable cause must be established both as to the merits of the cause of action and as to the amount of the requested attachment. 112 CA 315. Court unreasonably found adequate showing of insurance coverage when only the policy declaration page was admitted, defendant acknowledged insurer's reservation of rights re defense and coverage, and neither the policy nor the reservation letter was placed in evidence. 116 CA 685.
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Sec. 52-278e. Allowance of prejudgment remedy without hearing. Notice to defendant. Claim form. Subsequent hearing and order. Attachment of real property of municipal officers. (a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon the filing of an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient 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 and that there is reasonable likelihood that the defendant (1) has hidden or will hide himself so that process cannot be served on him or (2) is about to remove himself or his property from this state or (3) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (4) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts.
(b) If a prejudgment remedy is issued pursuant to this section, the plaintiff shall include in the process served on the defendant a notice and claim form, in such form as may be prescribed by the Office of the Chief Court Administrator, containing the following language: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE THE RIGHT TO A HEARING (1) TO OBJECT TO THE PREJUDGMENT REMEDY BECAUSE YOU HAVE A DEFENSE TO OR SET-OFF AGAINST THE ACTION OR A COUNTERCLAIM AGAINST THE PLAINTIFF OR BECAUSE THE AMOUNT OF THE PREJUDGMENT REMEDY ALLOWED BY THE COURT IS UNREASONABLY HIGH OR BECAUSE PAYMENT OF ANY JUDGMENT THAT MAY BE RENDERED AGAINST YOU IS ADEQUATELY SECURED BY ANY INSURANCE THAT YOU MAY HAVE; (2) TO REQUEST THAT THE PLAINTIFF POST A BOND IN ACCORDANCE WITH SECTION 52-278d OF THE GENERAL STATUTES TO SECURE YOU AGAINST ANY DAMAGES THAT MAY RESULT FROM THE PREJUDGMENT REMEDY; (3) TO REQUEST THAT THE PREJUDGMENT REMEDY BE DISSOLVED OR MODIFIED OR THAT YOU BE ALLOWED TO SUBSTITUTE A BOND FOR THE PREJUDGMENT REMEDY; AND (4) TO SHOW THAT ANY PROPERTY SUBJECT TO THE PREJUDGMENT REMEDY IS EXEMPT FROM SUCH A PREJUDGMENT REMEDY.
(c) The notice and claim form required by subsection (b) of this section shall contain (1) the name and address of any third person holding property of the defendant who is subject to garnishee process preventing the dissipation of such property, and (2) a statement of the procedure set out in subsection (d) of this section for requesting a hearing to move to dissolve or modify the prejudgment remedy.
(d) A defendant may move to dissolve or modify a prejudgment remedy allowed pursuant to this section by any proper motion or by return to the Superior Court of a signed claim form that indicates, by the checking of a box on the claim form, whether the claim is an assertion of a defense, counterclaim, set-off or exemption, an assertion that any judgment that may be rendered is adequately secured by insurance, an assertion that the amount of the prejudgment remedy is unreasonably high, a request that the plaintiff be required to post a bond to secure the defendant against any damages that may result from the prejudgment remedy, or a request that the defendant be allowed to substitute a bond for the prejudgment remedy.
(e) The court shall proceed to hold a hearing and determine any motion made under subsection (d) of this section not later than seven business days after its filing. If the court determines at such hearing requested by the defendant that there is probable cause that judgment will be rendered in the matter in favor of the plaintiff and, if the plaintiff has relied on a ground set forth in subsection (a) of this section, that there is probable cause to believe such ground exists, the prejudgment remedy granted shall remain in effect. If the court determines there is no probable cause to believe that a judgment will be rendered in the matter in favor of the plaintiff or, if a ground set forth in subsection (a) of this section was relied on, to believe such ground exists, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken.
(f) No prejudgment remedy for the attachment of real property of a municipal officer may be granted pursuant to this section in any civil action against such officer for an act or omission, not malicious, wanton, wilful or ultra vires, on the part of such officer while acting in the discharge of his duties where such officer would be protected and held harmless from financial loss and expense under the provisions of section 7-101a.
(P.A. 73-431, S. 5, 8; P.A. 76-401, S. 2, 7; P.A. 85-394; P.A. 90-149, S. 3; P.A. 91-315, S. 1, 5; P.A. 93-431, S. 3, 10.)
History: P.A. 76-401 allowed issuance of prejudgment remedy without hearing if there is “probable cause to sustain the validity of the plaintiff's claim”, also requiring as possible conditions that remedy requested “is for an attachment of real property” and that defendant “is not otherwise subject to jurisdiction over his person by the court”; P.A. 85-394 made previous provisions Subsecs. (a) and (c) and added Subsec. (b) requiring the plaintiff to provide notice to the defendant of the existence of certain statutory rights which the defendant may wish to exercise concerning the prejudgment remedy; P.A. 90-149 added Subsec. (d) restricting the prejudgment attachment of real property of a municipal officer; P.A. 91-315 amended Subsec. (a) to replace “upon verification by oath of the plaintiff or of some competent affiant that there is probable cause” with “upon the filing of an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of fact sufficient to show that there is probable cause” and amended Subsec. (c) to require the court to hold a hearing and determine the motion “not later than seven business days after its filing” rather than “expeditiously” and to provide that the criterion for deciding whether the prejudgment remedy should remain in effect or be dissolved when the plaintiff has relied on a ground set forth in Subsec. (a)(2) is whether there is probable cause to believe such ground exists; P.A. 93-431 amended Subsec. (a) to require that the affidavit contain facts sufficient 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” rather than probable cause “to sustain the validity of the plaintiff's claim”, and delete the provisions allowing issuance of the prejudgment remedy without a hearing when the prejudgment remedy requested is for “an attachment of real property” or when there is reasonable likelihood that the defendant “neither resides in nor maintains an office or place of business in this state and is not otherwise subject to jurisdiction over his person by the court” or “has stated he is insolvent or has stated he is unable to pay his debts as they mature”, amended Subsec. (b) to replace “If a prejudgment remedy is granted” with “If a prejudgment remedy is issued” and substantially revise the language contained in the notice advising the defendant of his rights including changing the basis on which the defendant may object to the prejudgment remedy and adding the right to request the plaintiff to post a bond, inserted a new Subsec. (c) re contents of the notice and claim form, designated the provisions of former Subsec. (c) re a motion to dissolve or modify as Subsec. (d) and amended said Subsec. to specify the manner in which a defendant may move to dissolve or modify a prejudgment remedy, designated the provisions of former Subsec. (c) re a court hearing as Subsec. (e) and amended said Subsec. to provide that the standard at such hearing shall be probable cause that judgment will be rendered in the matter in favor of the plaintiff rather than probable cause to sustain the validity of the plaintiff's claim, and relettered former Subsec. (d) as Subsec. (f), effective January 1, 1994.
Cited. 172 C. 577; 176 C. 432. Statute exhibits all the saving characteristics that law of procedural due process requires. 178 C. 393. Cited. Id., 446; 180 C. 49; 181 C. 42; Id., 524; 184 C. 85; 186 C. 329; 188 C. 69; 192 C. 150. Plaintiff may introduce at hearing additional evidence to buttress initial affidavit. 200 C. 406. Cited. 203 C. 475. Unnecessary to direct ex parte application to the court to which the action was returnable. 208 C. 13. Cited. 218 C. 281; Id., 512; 222 C. 361; Id., 541; 223 C. 68; 224 C. 29; 226 C. 773.
Affidavit need not stand alone in determining probable cause; it is the hearing that decides the issue. 1 CA 188. Cited. Id., 349; 2 CA 388; Id., 404; 4 CA 330; 5 CA 90; 6 CA 7; 10 CA 618; 11 CA 289; 14 CA 579; 16 CA 700; 19 CA 85; Id., 256; 20 CA 139; 21 CA 191; Id., 661; 24 CA 169; 26 CA 251; 28 CA 809; 29 CA 48; 32 CA 118; 39 CA 183; 46 CA 399. Nothing in the statutory language of the section can be read to bar a party from meeting its obligation to provide a supporting affidavit by incorporating by reference an affidavit that is already a part of the record and available to the court and all parties. 213 CA 674.
Cited. 35 CS 24; 38 CS 98; 39 CS 88; 42 CS 241.
Subsec. (a):
Subdiv. (1): Since statute requires a factual showing that probable cause exists to sustain the validity of plaintiff's claim, it comports with constitutional requirements. 180 C. 501. Personal knowledge is touchstone of competence of affiant, and determining personal knowledge requires close examination of averments in affidavit. 296 C. 556.
Subsec. (e):
When affidavit insufficient to establish probable cause, plaintiff may introduce additional evidence to buttress the initial affidavit at the probable cause hearing, but in absence of an affidavit, plaintiff not entitled to provide support for initial application at probable cause hearing. 296 C. 556.
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Sec. 52-278f. Issuance of prejudgment remedy when defendant in commercial transaction has waived notice and hearing. In an action upon a commercial transaction, as defined in section 52-278a, wherein the defendant has waived his right to a notice and hearing under sections 52-278a to 52-278g, inclusive, the attorney for the plaintiff shall issue the writ for a prejudgment remedy without securing a court order provided that (1) the complaint shall set forth a copy of the waiver; (2) the plaintiff shall file an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient 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; and (3) the plaintiff shall include in the process served on the defendant a notice satisfying the requirements of subsections (b) and (c) of section 52-278e.
(P.A. 73-431, S. 6, 8; P.A. 91-315, S. 2, 5; P.A. 93-431, S. 4, 10.)
History: P.A. 91-315 added Subdiv. (2) requiring the plaintiff to file an affidavit setting forth facts showing there is probable cause to sustain his claim and Subdiv. (3) requiring the plaintiff to provide a notice to the defendant satisfying the requirements of Sec. 52-278e(b); P.A. 93-431 amended Subdiv. (2) to require the affidavit to contain facts sufficient 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” rather than that there is probable cause “to sustain the validity of the plaintiff's claim” and amended Subdiv. (3) to add reference to Sec. 52-278e(c), effective January 1, 1994.
Cited. 172 C. 577; 176 C. 432; 181 C. 524; 184 C. 85; 188 C. 69; 208 C. 13; 222 C. 361; 226 C. 773; 238 C. 778.
Cited. 14 CA 579; 28 CA 809; 29 CA 48; 32 CA 118; 42 CA 763; 46 CA 399.
Cited. 38 CS 98.
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Sec. 52-278g. Motion to preserve existing prejudgment remedies. A plaintiff who has secured a prejudgment remedy prior to May 30, 1973, may make a motion to the court in which such action is pending for a hearing as set forth in section 52-278d with notice thereof to the defendant or his attorney. If the court, upon consideration of the facts before it, finds that the plaintiff has shown probable cause to sustain the validity of his claim, such prejudgment remedy secured shall be effective from the date of such hearing and an order to that effect shall be issued by the court. Any such prejudgment remedy which is not perfected on or before October 1, 1977, shall be void and of no effect.
(P.A. 73-431, S. 7, 8; P.A. 77-156, S. 1, 2.)
History: P.A. 77-156 added provision specifying that prejudgment remedies not perfected on or before October 1, 1977, are “void and of no effect”.
Dissolution of attachments is limited to causes provided for by statute; section does not require dissolution of preexisting attachments, and is read as permitting validation of preexisting attachments. 168 C. 41. Cited. 176 C. 432; 181 C. 42; Id., 524; 184 C. 85; 188 C. 69; 208 C. 13; 222 C. 361.
Cited. 6 CA 591; 14 CA 579; 28 CA 809; 32 CA 118.
Notice sufficient to satisfy due process requirements involved in a prejudgment attachment is provided for in Sec. 52-278g. 32 CS 13. Cited. 38 CS 98.
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Sec. 52-278h. Application for prejudgment remedy filed by the plaintiff. The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.
(P.A. 75-459, S. 2, 3.)
Cited. 188 C. 69; 222 C. 361.
Cited. 2 CA 388; 28 CA 809; 32 CA 118; 34 CA 22; Id., 801. This section and Sec. 52-278m control where present action has already been instituted. 54 CA 394. Requirements of section were fulfilled where service of original action and service of subsequent application for prejudgment remedy were valid and the application came after valid service of the original complaint. 80 CA 111.
Application for prejudgment remedy “at any time after” institution of action intended by legislature to be a broad expansion of time in which remedy could be used. 35 CS 49. Cited. 38 CS 98.
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Sec. 52-278i. (Formerly Sec. 52-282). Order for prejudgment remedy on set-off or counterclaim. Any defendant in any civil action, upon filing a set-off or counterclaim containing a claim for money damages, may, at any time during the pendency of such action, apply in writing to the court before which such action is pending, or, when such court is not in session, to any judge thereof, for an order for a prejudgment remedy against the estate of the party or parties against whom such claim has been made. Such application shall be substantially in the form provided by subsection (b) of section 52-278c, adapted accordingly. A hearing on such motion shall be held in accordance with the provisions of section 52-278d, adapted accordingly, and if the court, upon consideration of the facts before it, finds that the defendant has shown probable cause to believe that judgment will be rendered in the matter in favor of the defendant, then the prejudgment remedy applied for shall be granted as requested or as modified by the court and the court shall issue such an order, directed to any proper officer, stating the amount and estate to be attached and the time of return, which order shall be served and returned in the same manner as an original writ of attachment, and when returned shall become a part of the files and records in the action. The estate attached shall be held to respond to the final judgment in the same manner as if it had been attached in an action originally brought for the recovery of the amount claimed in such set-off or counterclaim. The provisions of section 52-278e, except subdivision (1) of subsection (a) thereof, and sections 52-278f and 52-278g, adapted accordingly, shall apply to any application for a prejudgment remedy sought under this section.
(1949 Rev., S. 8070; 1959, P.A. 28, S. 180; P.A. 75-459, S. 1, 3; P.A. 82-472, S. 139, 183; P.A. 86-403, S. 102, 132; P.A. 93-431, S. 5, 10.)
History: 1959 act removed provisions granting justices of the peace same powers as those of court or judge under section; P.A. 75-459 applied provisions to prejudgment remedies rather than to attachments of property, adding provisions re form of application, hearing procedure and re applicability of Secs. 52-278e to 52-278g; Sec. 52-282 transferred to Sec. 52-278i in 1977; P.A. 82-472 made technical changes to internal section references; P.A. 86-403 made technical change; P.A. 93-431 provided that the prejudgment remedy shall be granted if the court finds the defendant has shown probable cause “to believe that judgment will be rendered in the matter in favor of the defendant” rather than “to sustain the validity of his claim” and made technical changes, effective January 1, 1994.
Cited. 141 C. 55; 152 C. 641; 188 C. 69; 226 C. 773.
Cited. 38 CS 98.
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Sec. 52-278j. Dismissal or withdrawal of prejudgment remedy. (a) If an application for a prejudgment remedy is granted but the plaintiff, within thirty days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court shall dismiss the prejudgment remedy.
(b) If an application for a prejudgment remedy is denied and the plaintiff, within thirty days thereof, does not serve and return to court the writ of summons and complaint for which the prejudgment remedy was requested, or if a date for a hearing upon a prejudgment remedy is scheduled by the clerk and such hearing is not commenced within thirty days thereof, except as provided in section 52-278e, the court shall order the application to be considered as having been withdrawn.
(c) An application for a prejudgment remedy or a prejudgment remedy which is granted but not served may be withdrawn in the same manner as a civil cause of action.
(P.A. 76-21, S. 1–3; P.A. 78-36; P.A. 91-315, S. 3, 5.)
History: P.A. 78-36 allowed application to be considered as withdrawn if hearing date is scheduled and hearing is not commenced within 90 days of that date in Subsec. (b); P.A. 91-315 amended Subsecs. (a) and (b) to reduce the time period from 90 days to 30 days and to make the dismissal by the court in Subsec. (a) and the court's action in ordering the withdrawal of the application in Subsec. (b) mandatory rather than discretionary.
Cited. 186 C. 295; 188 C. 69.
Cited. 34 CA 303. Nothing in section implicates jurisdiction of the court to continue to hear a civil matter in which plaintiff has been granted a prejudgment remedy but failed to comply with Subsec. (a); rather the mandate in Subsec. (a) is best viewed as a sanction to prevent plaintiff from unduly encumbering assets of defendant by delaying initiation of the civil action in which the parties' dispute can be fully and fairly litigated. 156 CA 17. When plaintiff failed to serve defendant and return plaintiff's civil action to court within thirty days after the denial of his application for a prejudgment remedy, the only action required of the court was to consider the application, not the civil action, withdrawn. 163 CA 663. Requirements set forth in section are inapplicable to proceedings pursuant to Sec. 52-422. 204 CA 471.
Cited. 38 CS 98.
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Sec. 52-278k. Modification of prejudgment remedy. The court may, upon any application for prejudgment remedy under section 52-278c, 52-278e, 52-278h or 52-278i, modify the prejudgment remedy requested as may be warranted by the circumstances. The court may, upon motion and after hearing, at any time modify or vacate any prejudgment remedy granted or issued under this chapter upon the presentation of evidence which would have justified such court in modifying or denying such prejudgment remedy under the standards applicable at an initial hearing.
(P.A. 76-401, S. 3, 7; P.A. 91-315, S. 4, 5.)
History: P.A. 91-315 authorized the court to modify or vacate any prejudgment remedy “issued under this chapter” using “the standards applicable” at an initial hearing, and made technical changes.
Cited. 180 C. 501; 181 C. 42; 188 C. 69; 218 C. 512; 219 C. 620; 223 C. 68; 238 C. 172.
Cited. 2 CA 388; 11 CA 289; 16 CA 700; 39 CA 149.
Cited. 38 CS 98.
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Sec. 52-278l. Appeal. (a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.
(b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.
(c) No such order shall be stayed by the taking of an appeal except upon the order of the judge who made such order, and any such stay shall be granted only if the party taking the appeal posts a bond, with surety, in a sum determined by such judge to be sufficient to indemnify the adverse party for any damages which may accrue as a result of such stay.
(d) If a motion to discharge such prejudgment remedy is brought by the defendant, the property affected by such remedy may be restored to the use of the defendant, if the defendant posts a bond with surety in an amount determined by such judge to be sufficient to indemnify the plaintiff for any damages which may accrue by the defendant's continued use of such property, until such time as such motion is decided.
(P.A. 76-401, S. 4, 7.)
Cited. 181 C. 42. Implied power exists for trial court to grant extension of time within which to take an appeal. 182 C. 577. Cited. 184 C. 85; 186 C. 329; 188 C. 69; 192 C. 1; Id., 150; 213 C. 612; 218 C. 162; 220 C. 152; Id., 904; 222 C. 331; 223 C. 68; 224 C. 29; 226 C. 757; Id., 773; 229 C. 455; 230 C. 441; 232 C. 216; 233 C. 44; Id., 153; 235 C. 650; 236 C. 746; 237 C. 339; 240 C. 623. Court had jurisdiction to review defendant's claim that trial court improperly denied her motion to dismiss because claim necessarily encompassed issues presented by prejudgment remedy, which constitutes final judgment. 304 C. 546.
Cited. 1 CA 188; Id., 519; 2 CA 388; 6 CA 622; 10 CA 144; 11 CA 289; 21 CA 661. Does not apply to appeal of a temporary injunction. 25 CA 28. Cited. 28 CA 809; 29 CA 48; 34 CA 303; 36 CA 469; 39 CA 149; 41 CA 737; 45 CA 324. Appeal that was filed 9 months after order for a prejudgment remedy was granted is untimely. 53 CA 425.
Cited. 38 CS 98.
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Sec. 52-278m. When personal service not required. Whenever a prejudgment remedy is sought under the provisions of sections 52-278h or 52-278i against a party who has previously filed a general appearance in such action, personal service of any application or order upon such party shall not be required, unless ordered by the court, but any such application or order may be served in the same manner as any motion in such action.
(P.A. 76-401, S. 5, 7.)
Cited. 188 C. 69.
This section and Sec. 52-278h control where present action has already been instituted. 54 CA 394.
Cited. 38 CS 98.
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Sec. 52-278n. Motion to disclose property. Order for disclosure. Substitution of surety. (a) The court may, on motion of a party, order an appearing defendant to disclose property in which he has an interest or debts owing to him sufficient to satisfy a prejudgment remedy. The existence, location and extent of the defendant's interest in such property or debts shall be subject to disclosure. The form and terms of disclosure shall be determined by the court.
(b) A motion to disclose pursuant to this section may be made by attaching it to the application for a prejudgment remedy or may be made at any time after the filing of the application.
(c) The court may order disclosure at any time prior to final judgment after it has determined that the party filing the motion for disclosure has, pursuant to section 52-278d, 52-278e or 52-278i, probable cause sufficient for the granting of a prejudgment remedy.
(d) A defendant, in lieu of disclosing assets pursuant to subsection (a) of this section, may move the court for substitution either of a bond with surety substantially in compliance with sections 52-307 and 52-308, or of other sufficient security.
(e) Rules of court shall be enacted to carry out the foregoing provisions and may provide for reasonable sanctions to enforce orders issued pursuant to this section.
(P.A. 81-410, S. 1; P.A. 86-403, S. 86, 132; P.A. 93-431, S. 6, 10.)
History: P.A. 86-403 made technical change in Subsec. (c); P.A. 93-431 amended Subsec. (c) to replace “issuance of a prejudgment remedy” with “granting of a prejudgment remedy”, effective January 1, 1994.
Cited. 188 C. 69; 226 C. 773.
Cited. 19 CA 256; 29 CA 48.
Cited. 38 CS 98.
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