Mary Duncan v. Gary Warren (2013)

MEMORANDUM OF DECISION RE Motions # 100.30, 100.31

The plaintiff in the instant matter has filed an Application for Prejudgment Remedy (# 100.31) and Notice for Hearing (100.30).

The prejudgment hearing took place on October 28, 2013.   The plaintiff was requesting an attachment of the defendant's real estate at 41 County Road, Eastford, CT 06242 in the amount of $100,000.

The hearing with regard to a prejudgment remedy is governed by General Statute § 52–278d.   The hearing is limited to whether there is probable cause that the judgment will be rendered for the plaintiff in the amount equal to or greater than the amount of the prejudgment remedy.

Probable cause has been defined as a bona fide belief in facts essential under the law for the action and such as would lead a reasonable, prudent person to entertain such belief.  Dufraine v. CHRO, 236 Conn. 250, 261 (1996).   The court's role in such a hearing is to determine probable cause by weighing the probabilities.  Canty v. Otto, 304 Conn. 546, 565 (2012).   Probable cause must exist as to both the merits and damages.  Kosiorek v. Smigelski, 112 Conn.App. 315, 322–23, cert. denied, 291 Conn. 903 (2009).

The plaintiff filed a proposed writ, summons and complaint (# 100.32).   The complaint is in four counts and involves real estate owned by the defendant and located at 211 Eastford Road, Eastford, CT 06242.

The plaintiff began the hearing by calling the defendant, Gary Warren.   Mr. Warren's testimony revealed that a Bond for Deed was “entered into” with the plaintiff, Mary Duncan, for the 211 Eastford Road property.   Mr. Warren claimed little knowledge with regard to the contents of the Bond for Deed or his concomitant obligations with regard to that document.   The document itself was never introduced into evidence and was testified to only in the abstract.   The plaintiff was not available to testify and to perhaps fill in the gaps with regard to Mr. Warren's claimed lack of knowledge.   Instead, her affidavit (# 100.36) was submitted.   The defendant objected to the submission of the affidavit as the plaintiff was not available for cross examination.   The defendant's objection was overruled, and the hearing continued with the hope that plaintiff's counsel could provide the requisite evidence necessary through other witnesses or documents.   No documents were submitted, and Mr. Warren's testimony provided little evidence to support the plaintiff's burden of proof.

Counsel for the plaintiff asked the court to take “judicial notice” of the court orders in a related Housing Session matter pending in G.A. # 11 at Danielson involving the same parties—# 18453.   The plaintiff could have and should have introduced certified copies of whatever orders existed in that file so that he could have cross examined Mr. Warren with regard to them.   Judicial Notice of Adjudicative Facts are governed by § 2–1 of the Connecticut Code of Evidence.   Pursuant to § 2–1(b) “a court may, but is not required to, take notice of matters of fact ․”;  § 2–2(a) also requires that “A party requesting the court to take judicial notice of a fact shall give timely notice of the request to all other parties.”

Notice in accordance with the Code was not given.   Orders contained within the Housing Session file have been appealed, Appellate Court # AC35464.   The Housing Session file is contained in two banker's boxes.   This court does not believe that its function is to wade through this voluminous file and try to discern what documents and orders are relevant to the prejudgment action.   The court, therefore, exercises its discretion to refuse to take judicial notice of any documents contained in the housing file.

Because the plaintiff has failed to sustain its burden of proof with regard to the prejudgment remedy requested, that prejudgment remedy is DENIED without prejudice.

THE COURT

Riley, J.

Riley, Michael E., J.