Superior Performers, Inc. v. Shawn Meaike (2015)

MEMORANDUM OF DECISION RE PJR Application (# 100.3)

ISSUE AND SUBMISSION

The issue presented is whether the court should grant the plaintiff's application for prejudgment remedy against the defendant on the basis of a North Carolina judgment, and, if so, in what amount?

FACTS

On October 31, 2014, the plaintiff, Superior Performers, Inc., filed an application for prejudgment remedy (PJR) ¹ against the defendant, Shawn Meaike.   Therein, the plaintiff seeks to attach and/or garnish the defendant's property or assets so as to secure a potential judgment in their favor in connection with a $10,340.27 judgment of the North Carolina Superior Court.   In total, the plaintiff seeks $13,354.42 from the defendant, which represents the sum of the North Carolina judgment, attorneys fees in the amount of $1,551.04, and interest in the amount of $1,463.11.

The proposed complaint, filed with the PJR, alleges that on August 14, 2013, the defendant confessed to judgment acknowledging a debt of $30,000 to the plaintiff and agreeing to repay the debt pursuant to the terms of secured note.   Pursuant to the confession of judgment, failure to pay any amounts due under the secured note would constitute a default and result in the acceleration of the amounts due.   A default would also entitle the plaintiff to file the confession of judgment in the Superior Court Division of North Carolina and seek the recovery of attorneys fees equal to fifteen percent of the outstanding balance plus interest accruing from the date of default at the rate of eighteen percent per annum.   After the defendant failed to make his final payment under the secured note on December 15, 2013, the Superior Court of North Carolina entered a judgment in the amount of $10,340.27 against the defendant.   A copy of the North Carolina judgment is attached to the proposed complaint filed with the PJR. The plaintiff also filed the affidavit of Kaitlin Reckert, a bookkeeper of the plaintiff's, attesting to the above facts.

DISCUSSION

“Pursuant to our prejudgment remedy statutes ² ․ the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits.”  (Citations omitted;  internal quotation marks omitted.)   Butova v. Bielonko, Superior Court, judicial district of Hartford, Docket No. CV–07–5010057–S (November 9, 2007, Bentivegna, J.).  “[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 ․” (Internal quotation marks omitted.)  Spilke v. Spilke, 116 Conn.App. 590, 594 n.6, 976 A.2d 69 (2009).  “[T]he standard of review of the granting of a prejudgment remedy is very circumscribed ․ In its determination of probable cause, the trial court is vested with broad discretion ․” (Internal quotation marks omitted.)  Canty v. Otto, 304 Conn. 546, 564–65, 41 A.3d 280 (2012).  “Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  36 DeForest Avenue, LLC v. Creadore, 99 Conn.App. 690, 694–95, 915 A.2d 916 (2007).

The first question before the court is whether there is probable cause to enforce the North Carolina judgment.   In determining whether there is probable cause to enforce a foreign judgment, the court must decide whether the judgment is entitled to full faith and credit in Connecticut.   See Cahaly v. Benistar Property Exchange Trust Co., 268 Conn. 264, 274–75, 842 A.2d 1113 (2004).  “The judgment rendered in one state is entitled to full faith and credit only if it is a final judgment, and the judgment is final only if it is not subject to modification in the state in which it was rendered.”  Hendrix v. Hendrix, 160 Conn. 98, 104, 273 A.2d 890 (1970).  “[T]he judgment of another state must be presumed valid, and the burden of proving a lack of jurisdiction rests heavily upon the assailant ․ Furthermore, the party attacking the judgment bears the burden of proof regardless of whether the judgment at issue was rendered after a full trial on the merits or after an ex parte proceeding.”   (Citations omitted;  internal quotation marks omitted.)  Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 57, 570 A.2d 687 (1990).

As a preliminary matter, the court must decide the effect, if any, of the defendant's objection and request for a hearing, which was filed after the hearing on November 17, 2014.  “It is ․ the hearing, required under [General Statutes] § 52–278c ³ or requested by the defendant under [General Statutes] § 52–278e ⁴ in the case of ex parte prejudgment remedies, that decides the issue [of probable cause].”  Self Service Sales Corp. v. Heinz, 1 Conn.App. 188, 192, 470 A.2d 701 (1984).   Though in his objection the defendant characterizes it as a status conference, on November 17 the court held the hearing on the PJR and the defendant did not attend.   The defendant's objection claims he was out of town and did not receive the PJR until after the hearing took place.⁵  The return of service indicates that on November 12, 2014, the PJR was left at the usual place of abode for the defendant, 17 Mattern Road in Preston, Connecticut, as required by Practice Book § 10–13.   Given that service was made more than four days before the hearing on November 17, as required by General Statutes § 52–278c,⁶ the court will determine probable cause solely on the basis of the November 17 hearing and the materials submitted to the court by that date.⁷

Since the defendant did not attend the hearing or file any arguments contesting the North Carolina judgment prior to that hearing, the court finds probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits in the amount of $10,340.27.   In absence of proof to the contrary, the court presumes the validity and finality of judgment based upon the defendant's confession of judgment.⁸  See Packer Plastics, Inc. v. Laundon, supra, 214 Conn. 57.   In light of these presumptions, the court has probable cause to believe the judgment will be afforded full faith and credit at trial and will therefore grant the plaintiff's PJR to attach and/or garnish the defendant's property or assets so as to secure a potential judgment in the amount of $10,340.27.

The court does not, however, have probable cause to believe that a judgment will include additional attorneys fees in the amount of $1,551.04 or interest in the amount of $1,463.11.   Both the complaint and the affidavit of Reckert state that upon the defendant defaulting on the note, the plaintiff was entitled to file the confession of judgment in the Superior Court Division of North Carolina and seek the recovery of attorneys fees and interest.   It is unclear from the language used in the complaint and affidavit whether the terms of the confession of judgment limit the plaintiff to seeking attorneys fees and interest in the Superior Court Division of North Carolina or whether those sums are included in the judgment or were denied in North Carolina.   Nor does the judgment provided shed light on this issue.   Without further evidence, the court does not have probable cause to believe these types and amounts of remedies will be rendered in favor of the plaintiff in a trial on the merits.

CONCLUSION

For the foregoing reasons, the court grants the plaintiff's PJR application as to the $10,340.27 judgment of the Superior Court Division of North Carolina, but denies the PJR as to the requested attorneys fees and interest previously described.

Zemetis, J.

FOOTNOTES

FN1. Hereafter PJR will refer to the application as well as the attachment properly filed by the plaintiff as required by General Statutes § 52–278c..  FN1. Hereafter PJR will refer to the application as well as the attachment properly filed by the plaintiff as required by General Statutes § 52–278c.

FN2. General Statutes § 52–278d(a) provides, in relevant part:  that a hearing on a prejudgment remedy “shall be 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 ․ If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or setoffs ․ finds that the plaintiff has shown probable cause that such 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, the prejudgment remedy applied for shall be granted as requested or as modified by the court.”.  FN2. General Statutes § 52–278d(a) provides, in relevant part:  that a hearing on a prejudgment remedy “shall be 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 ․ If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or setoffs ․ finds that the plaintiff has shown probable cause that such 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, the prejudgment remedy applied for shall be granted as requested or as modified by the court.”

FN3. General Statutes § 52–278c(c) provides, in relevant part, that “[t]he clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for the hearing on the application and sign the order of hearing and notice ․”.  FN3. General Statutes § 52–278c(c) provides, in relevant part, that “[t]he clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for the hearing on the application and sign the order of hearing and notice ․”

FN4. General Statutes § 52–278e(d) and (e) provide that:  “(d) A defendant may move to dissolve or modify a prejudgment remedy allowed pursuant to this section by any proper motion or by return to the Superior Court of a signed claim ․“(e) The court shall proceed to hold a hearing and determine any motion made under subsection (d) of this section not later than seven business days after its filing ․”.  FN4. General Statutes § 52–278e(d) and (e) provide that:  “(d) A defendant may move to dissolve or modify a prejudgment remedy allowed pursuant to this section by any proper motion or by return to the Superior Court of a signed claim ․“(e) The court shall proceed to hold a hearing and determine any motion made under subsection (d) of this section not later than seven business days after its filing ․”

FN5. The court discerns that, having retained counsel on November 18, 2014, the defendant arrived home or otherwise received notice the day after the hearing at the latest..  FN5. The court discerns that, having retained counsel on November 18, 2014, the defendant arrived home or otherwise received notice the day after the hearing at the latest.

FN6. General Statutes § 52–278c(a)(4) provides that “[a] form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing ․”.  FN6. General Statutes § 52–278c(a)(4) provides that “[a] form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing ․”

FN7. As described in footnote four, the defendant may move to dissolve or modify the granting of this PJR. Given that the PJR is only presently ruled upon and because the defendant's request for an additional hearing was not made within a proper motion, the court does not presently acknowledge such a request to have been made..  FN7. As described in footnote four, the defendant may move to dissolve or modify the granting of this PJR. Given that the PJR is only presently ruled upon and because the defendant's request for an additional hearing was not made within a proper motion, the court does not presently acknowledge such a request to have been made.

FN8. The fact that the judgment was obtained as a result of a confession of judgment does not change the court's analysis.   Though a judgment obtained as a result of a confession of judgment cannot be enforced under the Uniform Enforcement of Foreign Judgments Act (UEFJA);  see General Statutes § 52–604 et seq.;  “[u]nder [General Statutes § ]52–607 a foreign judgment creditor who could or did not rely upon [General Statutes § ]52–605 can still proceed by an independent action on the foreign judgment, since this remedy remains unimpaired under the statutory scheme.   This independent action on the foreign judgment allows the debtor to attack collaterally the foreign judgment by establishing facts that would render the foreign judgment void ․ To be successful [in attacking collaterally the foreign judgment the debtor must show that the] judgment is void, not merely voidable ․ Broadly stated, this would require proof of the lack of a legally organized court or tribunal;  lack of jurisdiction over the subject matter, the parties, or both;  or want of power to grant the relief contained in the judgment.”  (Citations omitted;  internal quotation marks omitted.)   Smit v. Davis Tree & Logging, LLC, Superior Court, judicial district of Danbury, Docket No. CV–03–0348822–S (November 24, 2003, White, J.) [36 Conn. L. Rptr. 77]..  FN8. The fact that the judgment was obtained as a result of a confession of judgment does not change the court's analysis.   Though a judgment obtained as a result of a confession of judgment cannot be enforced under the Uniform Enforcement of Foreign Judgments Act (UEFJA);  see General Statutes § 52–604 et seq.;  “[u]nder [General Statutes § ]52–607 a foreign judgment creditor who could or did not rely upon [General Statutes § ]52–605 can still proceed by an independent action on the foreign judgment, since this remedy remains unimpaired under the statutory scheme.   This independent action on the foreign judgment allows the debtor to attack collaterally the foreign judgment by establishing facts that would render the foreign judgment void ․ To be successful [in attacking collaterally the foreign judgment the debtor must show that the] judgment is void, not merely voidable ․ Broadly stated, this would require proof of the lack of a legally organized court or tribunal;  lack of jurisdiction over the subject matter, the parties, or both;  or want of power to grant the relief contained in the judgment.”  (Citations omitted;  internal quotation marks omitted.)   Smit v. Davis Tree & Logging, LLC, Superior Court, judicial district of Danbury, Docket No. CV–03–0348822–S (November 24, 2003, White, J.) [36 Conn. L. Rptr. 77].

Zemetis, Terence A., J.