Gregg Padula v. Frank Bianchini (2014)

MEMORANDUM OF DECISION RE MOTION NO. 119 APPLICATION FOR CHARGING ORDER

I

BACKGROUND

The plaintiff in this case seeks a turnover order against the defendant's interest in a personal injury cause of action, entitled Bianchini v. Smith, Docket No. CV 12–6027607, currently pending in the Judicial District of Bridgeport.   The plaintiff's application for a “charging order” appeared on the special proceedings docket for a status conference before the court on the record on December 23, 2013 and was thereafter scheduled for a hearing on January 10, 2014.   Notably, the Bridgeport personal injury case is scheduled for jury selection in the very near future on January 30, 2014.

In the present case, the defendant filed an appearance, answer and special defense.   He was subsequently defaulted for his failure to attend a pretrial conference and judgment was entered after a hearing in damages by the court, Poche, J., on April 23, 2013.   There remains an unsatisfied judgment in the amount of $89,800.00, subject to postjudgment interest of 3%, ordered pursuant to General Statutes § 37–3a.   The plaintiff filed a motion to open the judgment, eight months later on December 23, 2013.

II

MOTION TO OPEN

The court has the discretionary authority to open judgments within four months.  General Statutes § 52–212a provides in relevant part:  “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed ․” The parallel Practice Book provision is identical, except that it clarifies that the four-month limitation on opening judgments runs upon the sending of notice and may be waived by the parties.  Practice Book § 17–4(a).¹

In the present case, there is a final judgment with no continuing jurisdiction.   The defendant was served process in this case and filed an appearance.   Although the defendant takes issue with the legal basis for the judgment, no appeal has been taken and the judgment has not otherwise been stayed.   Based upon these facts and relevant law, the motion to open is denied as untimely.

III

TURNOVER ORDER

The plaintiff seeks an order, directing the defendant to turnover to a levying officer the net proceeds of his personal injury action in another judicial district.   Alternatively, he seeks an order that the defendant not take possession of the net proceeds of his personal injury claim from his personal injury attorney until further order of the court.   The court highlights here that neither the plaintiff's attorney nor the defendant in the personal injury action have been given notice of these proceedings and are therefore not directly subject to this court's order.   See General Statutes § 52–356b(b).

General Statutes § 52–356b(a) may be used by a judgment creditor in the execution of judgments, as follows:  “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 ․ the following:  (1) Possession of specified personal property that is sought to be levied on ․” ² (Emphasis added.)   For purposes of the charging order statute, the term “property” is defined by General Statutes § 52–550a(16), as follows:  “Property” means any real or personal property in which the judgment debtor has an interest which he could assign or transfer, including (A) any present or future right or interest, whether or not vested or liquidated, (B) any debt, whether due or to become due, and (C) any cause of action which could be assigned or transferred. ”  (Emphasis added.)  General Statutes § 52–356b(b), further provides, in relevant part, that “[t]he court may issue a turnover order pursuant to this section, after notice and hearing ․ on a showing of need for the order.”   (Emphasis added.)

The court will begin its analysis with the plaintiff's showing of need for the turnover order.   The plaintiff's undisputed assertion at both hearings before the court was that the defendant has escaped execution on the judgment because he owns no assets and earns no attachable wages.   Some Superior court judges who have considered the application of the turnover statute have found that “an order of execution is a condition precedent to a turnover order under General Statutes § 52–356b.”   Cross v. S & E Investment, Superior Court, judicial district of Hartford–New Britain at New Britain, Docket No. CV 95 0465236 (October 16, 1996, Arena, J.).   Also see Cadle Co. v. Glen Developers, Superior Court, judicial district of New Haven, Docket No. CV 92 0341912 (November 22, 2000, Meadow, J.).   This requirement would be more compelling where, unlike here, the order is sought to be issued against a third party and stranger to the proceedings.   Here, the order is directed to the judgment debtor himself.   Therefore, although no order of execution has been issued in this case, the court finds the need for the order to have been satisfactorily shown by the plaintiff.

The court will next address the question of whether the defendant's unliquidated interest in the future proceeds of a personal injury action are subject to the provisions of General Statutes § 52–356b.   It is clear from the language of the statute that a future, unliquidated interest is attachable.   The more nuanced question is whether a personal injury cause of action is assignable under Connecticut law and therefore attachable pursuant to the statute.

“At common law, tort claims, as opposed to contract claims, were not generally assignable.   6 Am.Jur.2d 186, Assignments 60 (2001).   In a majority of states tort claims involving only property damages are freely assignable, while those involving personal injury are not.   6 Am.Jur.2d 191, Assignments 70 (2001).   In Connecticut, it is well established that claims for personal injuries are not assignable.”  Gurski v. Rosenblum, 48 Conn.Sup. 226, 233, 838 A.2d 1090 (2003).

The court in Gurski held that a legal malpractice claim is not assignable as it would violate public policy.   However, in its well-researched and reasoned decision, the court distinguished the assignability of a personal injury cause of action itself from the proceeds of such a claim.   In its analysis, the court stated “․ there is, of course, a crucial distinction between an enforceable interest in the proceeds of an action [which] ․ has nothing to do with the maintenance or control of the underlying action.”   Id. 246–47, citing Kennedy v. Collins Law Firm, Superior Court, judicial district of Hartford, Docket No. CV–98–0581592S, 24 Conn. L. Rptr. 268 (March 5, 1999, Fineberg, J.).

The court recognizes that an order to turnover the net proceeds of a personal injury cause of action may indeed be a factor in a plaintiff's decision to settle a claim for a just sum and there are important policy implications in doing so.   Questions arise of whether the imposition of such a lien would impede successful settlement negotiations and militate toward a trial, requiring a significant expenditure of time, as well as individual and public resources.   On the other hand, such an attachment does not implicate the larger policy concerns associated with an involuntary assignment of the cause of action itself, which would likely risk the disclosure of confidential information or interfere with a plaintiff's authority over very personal decision making in settlement negotiations or trial strategy, necessary to further his or her interests in the underlying cause of action.   Moreover, any judgment debtor should be well aware of the risk of attachment once a personal injury case is resolved and liquidated into a sum certain.   Therefore, such a judgment debtor's motivation to settle or try a separate cause of action should not be so seriously affected to prevent a preemptory lien, unless the judgment debtor's intention is to distribute the money to preferred creditors or to avoid satisfaction of the judgment by some other means.

Based upon this analysis, the court concludes that the future proceeds of the defendant's interest in a personal injury cause of action may be levied upon by a turnover order.   However, instead of issuing an execution to a levying officer, with its associated expenses, the court will issue the following order in aid of the execution.   The motion for a turnover order is granted in the amount of $89,800.00, plus interest of 3% since the date of judgment.   The turnover order shall attach as a statutory lien against the defendant's interest in the net proceeds of his personal injury cause of action, currently pending in Judicial District of Bridgeport, entitled Bianchini v. Smith, Docket No. CV 12–6027607.

This order in aid of the execution is subject to any statutory exemptions ³ and other superior liens, including the attorney's charging lien or fees and costs, other liens and fees resulting from medical treatment associated with the defendant's injuries in the case, as well as other court costs.

The defendant is specifically ordered to not take possession of the net proceeds of his personal injury case from his attorney until this order is satisfied.   Any willful violation may be subject to contempt.

BY THE COURT

MARK H. TAYLOR, J.

FOOTNOTES

FN1. Practice Book § 17–4(a) similarly provides:  “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent.   The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court..  FN1. Practice Book § 17–4(a) similarly provides:  “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent.   The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.

FN2. General Statutes § 52–356b 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.(c) The court may issue a turnover order against a judgment debtor, without notice or hearing, upon affidavit by the judgment creditor or another competent affiant stating facts from which the court concludes that there is a reasonable likelihood that the judgment debtor is about to remove the property from the state or is about to fraudulently dispose of the property with intent to hinder, delay or defraud his creditors.   The court shall expeditiously hear and determine any motion by the judgment debtor to dissolve such an ex parte order.(d) Unless directed to a person who is before the court, any turnover order shall be personally served and shall contain a notice that failure to comply therewith may subject the person served to being held in contempt of court..  FN2. General Statutes § 52–356b 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.(c) The court may issue a turnover order against a judgment debtor, without notice or hearing, upon affidavit by the judgment creditor or another competent affiant stating facts from which the court concludes that there is a reasonable likelihood that the judgment debtor is about to remove the property from the state or is about to fraudulently dispose of the property with intent to hinder, delay or defraud his creditors.   The court shall expeditiously hear and determine any motion by the judgment debtor to dissolve such an ex parte order.(d) Unless directed to a person who is before the court, any turnover order shall be personally served and shall contain a notice that failure to comply therewith may subject the person served to being held in contempt of court.

FN3. For example, see General Statutes § 52–352b..  FN3. For example, see General Statutes § 52–352b.

Taylor, Mark H., J.