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Section 52-278d – Hearing on prejudgment remedy application. Determination by the court. Service of process. Stay of order. Posting of bond by plaintiff

May 11, 2021 | Civil Procedure, Connecticut

(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not grant the prejudgment remedy if the prejudgment remedy or application for such prejudgment remedy was dismissed or withdrawn pursuant to the provisions of section 52-278j.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.

Conn. Gen. Stat. ยง 52-278d

(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.)

Cited. 172 Conn. 577; 173 Conn. 426; 176 Conn. 432; 181 Conn. 42; Id., 524; 184 Conn. 85; 185 C. 37. A hearing on prejudgment remedy application under section is not occasion to test plaintiff’s rights against garnishees. 186 Conn. 329. Cited. 188 Conn. 69; 200 Conn. 406; 203 Conn. 475; 208 Conn. 13; 218 C. 162; 222 Conn. 361; Id., 541. Not unconstitutionally vague on its face. 224 Conn. 29. Cited. 226 Conn. 773; 229 C. 455; 236 C. 746. Cited. 1 CA 93; Id., 519; 4 Conn.App. 510; 14 Conn.App. 579; 21 Conn.App. 661; 26 CA 804; 28 Conn.App. 809; 32 Conn.App. 118; 33 Conn.App. 223; 34 CA 216; Id., 801; 39 Conn.App. 183; 46 Conn.App. 399. Prejudgment remedy ordered by court is improper where court made no finding of probable damages. 68 Conn.App. 685. Quantum of proof needed for prejudgment remedy less than that required to sustain final judgment. 30 CS 337. Cited. 38 Conn.Supp. 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 Conn. 174. Cited. 196 Conn. 359; 213 Conn. 612; 224 C. 483. “Or as modified by the court” encompasses the power to require whatever security is constitutionally necessary. 226 Conn. 773. Cited. Id., 812. Cited. 1 Conn.App. 188; 3 Conn.App. 404; 5 Conn.App. 90; 6 Conn.App. 180; 11 Conn.App. 420; 25 Conn.App. 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 Conn.App. 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 Conn.App. 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 Conn.App. 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.