GMAC v. Donna Vogel, Executrix of the Estate of John Caltabiano (2010)

MEMORANDUM OF DECISION

The plaintiff seeks a prejudgment remedy of replevin of a motor vehicle.   “ ‘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.”  (Emphasis added.)  General Statutes § 52-278a(d).  “Prejudgment remedies are statutory devices designed to bring the defendant's assets into custody as security for the satisfaction of the judgment the plaintiff may recover.”   Butova v. Bielonko, Superior Court, judicial district of Hartford, Docket No. CV 07 5010057 (November 9, 2007, Bentivegna, J.).   Pursuant to § 52-278d(a), the prejudgment remedy hearing is “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 ․”

The role of the court in considering an award of a prejudgment remedy is well established.  “A prejudgment remedy is available upon a finding by the court 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 defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ․” (Internal quotation marks omitted.)  Kendall v. Amster, 108 Conn.App. 319, 325, 948 A.2d 1041 (2008).

With this standard in mind, and for the purposes of this application, the court finds that the plaintiff has satisfied the requirements for a prejudgment remedy.   While Mr. Diggs may not have had personal knowledge of many of the material facts, the documents establishing those facts were marked as full exhibits.   Those documents, together with Mr. Diggs' testimony, establish probable cause that the deceased, John A. Caltabiano, a prominent veterinarian, purchased a 2007 Chevrolet Silverado 25, VIN 1GCHK24K17E518023 from Jackson Chevrolet Co., Inc., in 2007.   He executed a retail installment contract which was assigned to the plaintiff GMAC, which is listed as the first lienholder on the certificate of title.   He made the required periodic payments under the contract until October 2009, shortly before his death of a tragic illness.   The defendant, Donna C. Vogel, is his sister and is sued in her capacity as the executor of her estate.   There is an arrearage on the installment contract in the approximate amount of $6,736.96, plus attorneys fees and costs.

On May 25, 2010, the defendant filed an inventory with the Probate court for the District of Old Lyme listing the Chevrolet Silverado, albeit with a fair market value of minus $28,000.00.   However, Vogel testified, convincingly, that she does not have possession of the vehicle, has not seen it in over a year, and does not know where it is, nor do her siblings of whom she has inquired.

“In Connecticut, replevin proceedings are governed by statute rather than by the rules that apply to common-law actions of replevin.  Staub v. Anderson, 152 Conn. 694, 695, 211 A.2d 691 (1965);  M. Itzkowitz & Sons, Inc. v. Santorelli, 128 Conn. 195, 198, 21 A.2d 376 (1941);  Belknap Savings Bank v. Robinson, 66 Conn. 542, 547, 34 A. 495 (1895).   Section 52-515 provides that ‘[t]he action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.’  “ Cornelio v. Stamford Hospital, 246 Conn. 45, 49, 717 A.2d 140 (1998).   In order to replevin the motor vehicle, the plaintiff must establish that:  (1) the motor vehicle constitutes “goods or chattels” within the meaning of § 52-515;  (2) the plaintiff has a “property interest” in the motor vehicle;  (3) it has a right to immediate possession of the vehicle;  and (4) the defendant has wrongfully detained the vehicle.   See id.

The plaintiff clearly has established the first three elements.   Were this a trial on the merits of the case-in-chief, the court would find that the plaintiff has not proved the fourth element by a preponderance of evidence.   See Sports Merchandising Concepts, Inc. v. Martino, Superior Court, judicial district of Danbury, Docket No. 321122 (June 2, 1997, Axelrod, J.) (replevin must be proved by preponderance).   However, this is not a trial on the merits of the case-in-chief but an application for a prejudgment remedy.

“[A] hearing in probable cause is not intended to be a full scale trial on the merits of the [moving party's] claim.   The [moving party] does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim ․ The court's role in such a hearing is to determine probable success by weighing probabilities ․ The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment under the circumstances, in entertaining it ․ Probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false.”  (Internal Quotation marks omitted.)  Spilke v. Spilke, 116 Conn.App. 590, 594 n.6, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).  “Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence.”  (Internal quotation marks omitted.)   Kosiorek v. Smigelski, 112 Conn.App. 315, 319, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009);  see also 36 DeForest Avenue, LLC v. Creadore, 99 Conn.App. 690, 698, 915 A.2d 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007) (stating that the burden of proof at a probable cause hearing is a low one).  “At a probable cause hearing on a prejudgment remedy, a trial court may properly consider all evidence presented, including testimony of witnesses, documentary evidence and affidavits.”  Fleet Bank of Connecticut v. Dowling, 28 Conn.App. 221, 225, 610 A.2d 707 (1992), appeal dismissed, 225 Conn. 447, 623 A.2d 1005 (1993).

The defendant's listing of the 2007 Chevrolet Silverado 25, VIN 1GCHLK24K17E518023 establishes probable cause that the defendant has wrongfully detained the vehicle.

The court finds that there is probable cause that (1) the motor vehicle constitutes “goods or chattels” within the meaning of § 52-515;  (2) the plaintiff has a “property interest” in the motor vehicle;  (3) it has a right to immediate possession of the vehicle;  and (4) the defendant has wrongfully detained the vehicle.   Upon consideration of the facts, and taking into account the claims of the parties, the court finds that the plaintiff has shown probable cause that 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.

Accordingly, the court grants the plaintiff's application for a prejudgment remedy of replevin.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

Levin, Bruce L., J.