Robert Utzler v. John A. Braca, Jr. et al (2010)

MEMORANDUM OF DECISION EXEMPTION CLAIM OF PATRICIA BRACA RE 1984 JOHN DEERE BACKHOE

In the original lawsuit between the parties, the plaintiff Utzler sought damages against the defendants, John A. Braca, Jr., his wife, Patricia Braca and John A. Braca, Jr.'s alter ego entities, Homes of Westport, LLC, Homes of Fairfield, LLC and the Braca Family Trust, LLC, for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud, misrepresentation, conversion, statutory theft and a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”).   On April 25, 2008, the court (Tyma, J.) entered judgment in favor of the plaintiff as against John A. Braca, Jr. for fraud, intentional misrepresentation, violation of CUTPA, breach of fiduciary duty and breach of contract.   The court awarded the plaintiff compensatory damages in the amount of $500,000 plus $140,000 in punitive damages and attorneys fees.  Utzler v. Braca, 115 Conn.App. 261, 271-72, 972 A.2d 743, 752 (2009).   Braca appealed the trial court's decision and a subsequent post-judgment decision by the court (Cocco, J.T.R.), allowing the plaintiff's attachment to remain on the assets of Braca's alter ego, Homes of Westport, LLC, while Braca's appeal was pending.   Subsequently, the Appellate Court affirmed the judgment and the post-judgment decision of Cocco, J., and affirming that the various business entities were the alter egos of Braca, Jr. Utzler v. Braca, supra, 115 Conn.App. 264.   Attorney Glenn Terk has been counsel of record for all defendants since June 22, 2006.   Neither John A. Braca, Jr. or his wife Patricia Braca has ever filed a pro se appearance in this case.

On July 29, 2009, Utzler obtained a property execution against Braca, Jr. d/b/a Homes of Westport.   On August 28, 2009, a 1984 John Deere backhoe was seized from a Westport, Connecticut construction site of Homes of Westport, LLC at 3 Gray's Farm Road, and John Braca, Jr. was served with the Execution and Exemption form.   The Exemption form instructs the debtor and third persons to file timely claims within twenty days of the execution and to utilize the prescribed forms.   For a third person the form is Form JD-CV-5.  General Statutes § 52-361b(d) mandates that a judgment debtor's form shall be returned within twenty days after levy on such property.   Pending the hearing on such claim, the execution is stayed by General Statutes § 52-361b(e) and the state marshal cannot dispose of the assets.¹

On September 18, 2009, within twenty days of the levy on the subject backhoe, Braca, Jr. signed and filed an Exemption Claim form, JD-CV-5b, claiming the backhoe was exempt from attachment because it was owned by his wife, Patricia Braca.   At an October 19, 2009 court hearing, Attorney Terk appeared and represented both John Braca, Jr. and Patricia Braca.   The court, (Arnold, J.) dismissed John Braca's Exemption claim for lack of subject matter jurisdiction, ruling that John Braca, Jr. did not have standing to file an exemption claim on behalf of his wife Patricia Braca.   On October 20, 2009, fifty-three days after the backhoe was seized, Patricia Braca filed an Exemption Claim form JD-CV-5b, claiming she owned the backhoe.

General Statutes § 52-356c(a) provides:

“(a) Where a dispute exists between the judgment debtor or judgment creditor and a third person concerning an interest in personal property sought to be levied on, or where a third person claims that the execution will prejudice his superior interest therein, the judgment creditor or third person may, within twenty days of service of the execution or upon application by the judgment creditor for a turnover order, make a claim for determination of interests pursuant to this section.”

The claim shall be filed on a prescribed form as a supplemental proceeding in the original action.  General Statutes § 52-356c(b).²  The plaintiff-creditor, Utzler, requests that Patricia Braca's claim be dismissed as it was not timely filed, and it has been filed on the wrong form.   The court agrees.

The defendant argues that a pro se defendant should not be penalized and should be allowed to have a hearing in connection with the property, despite her late filing and use of the wrong form.   The defendants claim they did not know how to properly file their claims and were misled by the Superior Court Clerk.   As pro se defendants, they argue they are entitled to serious equitable considerations.   The problem with this argument is that John Braca, Jr. and his wife, Patricia Braca are not pro se defendants.   They are represented by Attorney Terk, and they both had actual notice of the execution, as did Attorney Terk, who spoke to the state marshal immediately after the backhoe was levied upon.

The principles of statutory interpretation are well-established.  “General Statutes § 1-2z provides:  The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  (Internal citations omitted;  internal quotation marks omitted.)  Viera v. Cohen, 283 Conn. 412, 421, 927 A.2d 843 (2007).   When the relevant statutory text and the relationship of that text to other statutes do not reveal a meaning that is plain and unambiguous, the court's analysis is not limited, and the court looks to other factors relevant to determining the meaning of General Statutes § 52-361b and General Statutes § 52-356c, including their legislative histories, the circumstances surrounding its enactment and its purpose.  Id. “The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.”  Id. The texts of General Statutes § 52-361b and § 52-356c are plain and unambiguous.   They set forth the procedures to be utilized by Patricia Braca for her to gain a hearing on her claim.   Patricia Braca did not abide by these statutory conditions and mandates.   Her claim for an exemption is hereby dismissed.

THE COURT

By Judge Richard E. Arnold

FOOTNOTES

FN1. General Statutes § 52-361b, “Notification of judgment debtor's rights.   Claim for exemption or modification,” reads as follows:(a) A property execution pursuant to section 52-356a to be levied on property of a judgment debtor who is a natural person shall be accompanied by a conspicuous notice in clear and simple language of judgment debtor rights, on a prescribed exemption claim form containing (1) a checklist and description of the most common classes of personal property which are exempt from execution, with a citation to the statutory authority for each class, (2) the name and address of the third person, if any, served with the execution, and a statement of the procedure, pursuant to this section, for claiming such an exemption and the time within which such a claim should be made, (3) a statement of the right of consumer judgment debtors to request an installment payment order staying execution pursuant to section 52-356d, and (4) a statement that pursuant to section 52-212, a judgment debtor may, for reasonable cause, move that the judgment be set aside within four months of rendition.(b) A wage execution shall be accompanied by a conspicuous notice in clear and simple language of judgment debtor rights, on a prescribed exemption claim form containing (1) a checklist and description of the most common classes of earnings which are exempt from execution, with a citation to the statutory authority for each class, and a statement of the procedure, pursuant to this section, for claiming such an exemption, (2) a statement of the specific dollar amount of the statutory exemption of earnings from execution pursuant to subdivision (2) of subsection (f) of section 52-361a and a statement that the weekly amount of the levy may not exceed twenty-five per cent of the employee's weekly disposable earnings, (3) notice to the judgment debtor that he may seek modification of the execution as provided by subsection (d) of this section, and (4) notice that pursuant to section 52-212 a judgment debtor may, for reasonable cause, move that the judgment be set aside within four months of rendition.(c) The form for initial interrogatories prescribed by section 52-351b shall be accompanied by a conspicuous notice of rights in clear and simple language, (1) notifying the person served that with respect to assets, he is required to reveal information concerning the amount, nature and location of the judgment debtor's assets up to an amount clearly sufficient in value to ensure full satisfaction of the judgment with interest and costs and that pursuant to section 52-400a he may apply to the court for protection from annoyance, embarrassment, oppression, or undue burden or expense, and (2) containing a list and description of the most common classes of personal property which are exempt from execution, with a citation to the statutory authority for each class.(d) Except as provided in section 52-367b, a judgment debtor may claim an exemption as to property or earnings sought to be levied on, or may seek a modification of a wage execution, in a supplemental proceeding to the original action by return of a signed exemption claim form, indicating the property or earnings claimed to be exempt or the nature of the claim for modification being made, the class of any exemption claimed, and the name and address of any employer, or other person holding such property or earnings, to the Superior Court.   Any claim with respect to a personal property execution under section 52-356a shall be returned within twenty days after levy on such property.   On receipt of the claim, the clerk of the court shall promptly set the matter for a short calendar hearing and give notice of the exemption or modification claimed and the hearing date to all parties and to any employer or other third person holding such property or earnings.(e) Pending the hearing, the execution against the property shall be stayed.   Such property, other than earnings, shall continue to be held by the person in possession subject to the determination of the court.   No earnings claimed to be exempt or subject to a claim for modification may be withheld from any employee until determination of the claim.(f) The court shall promptly hear and determine all such claims.(g) Failure by a judgment debtor to file a claim under this section shall not relieve the judgment creditor or levying officer from liability for return of any exempt property which has been levied on or for payment to the judgment debtor of any proceeds realized from the sale thereof, provided title to any such exempt property sold at an execution sale shall remain in any bona fide purchaser thereof.(h) If a levying officer is in doubt as to whether certain property necessary to satisfy a judgment is exempt, he may certify the question of exemption to the court for a hearing and determination pursuant to this section..  FN1. General Statutes § 52-361b, “Notification of judgment debtor's rights.   Claim for exemption or modification,” reads as follows:(a) A property execution pursuant to section 52-356a to be levied on property of a judgment debtor who is a natural person shall be accompanied by a conspicuous notice in clear and simple language of judgment debtor rights, on a prescribed exemption claim form containing (1) a checklist and description of the most common classes of personal property which are exempt from execution, with a citation to the statutory authority for each class, (2) the name and address of the third person, if any, served with the execution, and a statement of the procedure, pursuant to this section, for claiming such an exemption and the time within which such a claim should be made, (3) a statement of the right of consumer judgment debtors to request an installment payment order staying execution pursuant to section 52-356d, and (4) a statement that pursuant to section 52-212, a judgment debtor may, for reasonable cause, move that the judgment be set aside within four months of rendition.(b) A wage execution shall be accompanied by a conspicuous notice in clear and simple language of judgment debtor rights, on a prescribed exemption claim form containing (1) a checklist and description of the most common classes of earnings which are exempt from execution, with a citation to the statutory authority for each class, and a statement of the procedure, pursuant to this section, for claiming such an exemption, (2) a statement of the specific dollar amount of the statutory exemption of earnings from execution pursuant to subdivision (2) of subsection (f) of section 52-361a and a statement that the weekly amount of the levy may not exceed twenty-five per cent of the employee's weekly disposable earnings, (3) notice to the judgment debtor that he may seek modification of the execution as provided by subsection (d) of this section, and (4) notice that pursuant to section 52-212 a judgment debtor may, for reasonable cause, move that the judgment be set aside within four months of rendition.(c) The form for initial interrogatories prescribed by section 52-351b shall be accompanied by a conspicuous notice of rights in clear and simple language, (1) notifying the person served that with respect to assets, he is required to reveal information concerning the amount, nature and location of the judgment debtor's assets up to an amount clearly sufficient in value to ensure full satisfaction of the judgment with interest and costs and that pursuant to section 52-400a he may apply to the court for protection from annoyance, embarrassment, oppression, or undue burden or expense, and (2) containing a list and description of the most common classes of personal property which are exempt from execution, with a citation to the statutory authority for each class.(d) Except as provided in section 52-367b, a judgment debtor may claim an exemption as to property or earnings sought to be levied on, or may seek a modification of a wage execution, in a supplemental proceeding to the original action by return of a signed exemption claim form, indicating the property or earnings claimed to be exempt or the nature of the claim for modification being made, the class of any exemption claimed, and the name and address of any employer, or other person holding such property or earnings, to the Superior Court.   Any claim with respect to a personal property execution under section 52-356a shall be returned within twenty days after levy on such property.   On receipt of the claim, the clerk of the court shall promptly set the matter for a short calendar hearing and give notice of the exemption or modification claimed and the hearing date to all parties and to any employer or other third person holding such property or earnings.(e) Pending the hearing, the execution against the property shall be stayed.   Such property, other than earnings, shall continue to be held by the person in possession subject to the determination of the court.   No earnings claimed to be exempt or subject to a claim for modification may be withheld from any employee until determination of the claim.(f) The court shall promptly hear and determine all such claims.(g) Failure by a judgment debtor to file a claim under this section shall not relieve the judgment creditor or levying officer from liability for return of any exempt property which has been levied on or for payment to the judgment debtor of any proceeds realized from the sale thereof, provided title to any such exempt property sold at an execution sale shall remain in any bona fide purchaser thereof.(h) If a levying officer is in doubt as to whether certain property necessary to satisfy a judgment is exempt, he may certify the question of exemption to the court for a hearing and determination pursuant to this section.

FN2. General Statutes § 52-356c(b) reads as follows:(b) The claim, which shall constitute the appearance of any third-person claimant, shall be filed with the Superior Court, on a prescribed form as a supplemental proceeding to the original action.   The claim shall contain a description of the property in which an interest is claimed and a statement of the basis for the claim or of the nature of the dispute..  FN2. General Statutes § 52-356c(b) reads as follows:(b) The claim, which shall constitute the appearance of any third-person claimant, shall be filed with the Superior Court, on a prescribed form as a supplemental proceeding to the original action.   The claim shall contain a description of the property in which an interest is claimed and a statement of the basis for the claim or of the nature of the dispute.

Arnold, Richard E., J.