Gales Ferry Animal Hospital v. LLC (2010)

RE MOTION FOR TURNOVER ORDER (# 118)

On February 3, 2009, a judgment entered in the above-referenced case in favor of the plaintiff as against the defendant in the amount of $11,218.70.   Thereafter, a petition to examine the judgment debtor was granted.   The plaintiff represents that at the examination of the judgment debtor, John Fogg, Sr., a member of the defendant limited liability company disclosed that the defendant limited liability company was no longer in operation and that all assets including tools, ladders, equipment, brushes and the like were transferred and are now being used by a new limited liability company, J.N. Fogg & Sons Enterprises, LLC. Mr. Fogg further indicated that the assets were transferred without consideration.   Mr. Fogg testified that the tools and equipment are maintained in a garage at John Fogg, Sr.'s. residence located at 35 Warner Street, Groton, Connecticut and it is the exact equipment used and owned by the old limited liability company.

The plaintiff filed a motion for a turnover order pursuant to C.G.S. § 52-356b(b).  This statute provides:

(a) If a judgment is unsatisfied, the judgment creditor may apply to the court for an execution and an order in aid of the execution directing the judgment debtor, or any third person, to transfer to the levying officer either or both of the following:  (1) Possession of specified personal property that is sought to be levied on;  or (2) possession of documentary evidence of title to property of, or a debt owed to, the judgment debtor that is sought to be levied on. (b) The court may issue a turnover order pursuant to this section, after notice and hearing or as provided in subsection (c) of this section, on a showing of need for the order.   If the order is to be directed against a third person, such person shall be notified of his right pursuant to Section 52-356c to a determination of any interest claimed in the property.

On July 20, 2010, the motion for a turnover order, order for hearing and notice and summons were served on the defendant but was not served on the third party having possession of the property, J.N. Fogg & Sons Enterprises, LLC. The notice indicated that a hearing be held before the court on August 16, 2010.   At the hearing before the court on that date, the defendant made default of appearance.

The plaintiff's motion for a turnover order is denied without prejudice.   The motion before the court does not comply with the statutory requirements of giving notice to the third party in possession of the property nor did it give notice to the third party of its rights pursuant to § 52-356c of the General Statutes to have a hearing on the determination of interests in the disputed property.

Cosgrove, J.

Cosgrove, Emmet L., J.