Sec. 52-278e. Allowance of prejudgment remedy without hearing. Notice to defendant. Claim form. Subsequent hearing and order. Attachment of real property of municipal officers.
Sec. 52-278e. Allowance of prejudgment remedy without hearing. Notice to
defendant. Claim form. Subsequent hearing and order. Attachment of real property of municipal officers. (a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon the filing of an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show 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
known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the
plaintiff and that there is reasonable likelihood that the defendant (1) has hidden or will
hide himself so that process cannot be served on him or (2) is about to remove himself
or his property from this state or (3) is about to fraudulently dispose of or has fraudulently
disposed of any of his property with intent to hinder, delay or defraud his creditors or
(4) has fraudulently hidden or withheld money, property or effects which should be
liable to the satisfaction of his debts.
(b) If a prejudgment remedy is issued pursuant to this section, the plaintiff shall
include in the process served on the defendant a notice and claim form, in such form as
may be prescribed by the Office of the Chief Court Administrator, containing the following language: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO
EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE THE RIGHT TO A HEARING (1) TO OBJECT TO THE PREJUDGMENT
REMEDY BECAUSE YOU HAVE A DEFENSE TO OR SET-OFF AGAINST THE
ACTION OR A COUNTERCLAIM AGAINST THE PLAINTIFF OR BECAUSE THE
AMOUNT OF THE PREJUDGMENT REMEDY ALLOWED BY THE COURT IS
UNREASONABLY HIGH OR BECAUSE PAYMENT OF ANY JUDGMENT THAT
MAY BE RENDERED AGAINST YOU IS ADEQUATELY SECURED BY ANY
INSURANCE THAT YOU MAY HAVE; (2) TO REQUEST THAT THE PLAINTIFF
POST A BOND IN ACCORDANCE WITH SECTION 52-278d OF THE GENERAL
STATUTES TO SECURE YOU AGAINST ANY DAMAGES THAT MAY RESULT
FROM THE PREJUDGMENT REMEDY; (3) TO REQUEST THAT THE PREJUDGMENT REMEDY BE DISSOLVED OR MODIFIED OR THAT YOU BE ALLOWED
TO SUBSTITUTE A BOND FOR THE PREJUDGMENT REMEDY; AND (4) TO
SHOW THAT ANY PROPERTY SUBJECT TO THE PREJUDGMENT REMEDY
IS EXEMPT FROM SUCH A PREJUDGMENT REMEDY.
(c) The notice and claim form required by subsection (b) of this section shall contain
(1) the name and address of any third person holding property of the defendant who is
subject to garnishee process preventing the dissipation of such property, and (2) a statement of the procedure set out in subsection (d) of this section for requesting a hearing
to move to dissolve or modify the prejudgment remedy.
(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 form that indicates, by the checking of a box on the claim form, whether
the claim is an assertion of a defense, counterclaim, set-off or exemption, an assertion
that any judgment that may be rendered is adequately secured by insurance, an assertion
that the amount of the prejudgment remedy is unreasonably high, a request that the
plaintiff be required to post a bond to secure the defendant against any damages that
may result from the prejudgment remedy, or a request that the defendant be allowed to
substitute a bond for the prejudgment remedy.
(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. If the
court determines at such hearing requested by the defendant that there is probable cause
that judgment will be rendered in the matter in favor of the plaintiff and, if the plaintiff
has relied on a ground set forth in subsection (a) of this section, that there is probable
cause to believe such ground exists, the prejudgment remedy granted shall remain in
effect. If the court determines there is no probable cause to believe that a judgment will
be rendered in the matter in favor of the plaintiff or, if a ground set forth in subsection
(a) of this section was relied on, to believe such ground exists, the prejudgment remedy
shall be dissolved. An order shall be issued by the court setting forth the action it has
taken.
(f) No prejudgment remedy for the attachment of real property of a municipal officer
may be granted pursuant to this section in any civil action against such officer for an
act or omission, not malicious, wanton, wilful or ultra vires, on the part of such officer
while acting in the discharge of his duties where such officer would be protected and
held harmless from financial loss and expense under the provisions of section 7-101a.
(P.A. 73-431, S. 5, 8; P.A. 76-401, S. 2, 7; P.A. 85-394; P.A. 90-149, S. 3; P.A. 91-315, S. 1, 5; P.A. 93-431, S. 3, 10.)
History: P.A. 76-401 allowed issuance of prejudgment remedy without hearing if there is "probable cause to sustain
the validity of the plaintiff's claim", also requiring as possible conditions that remedy requested "is for an attachment of
real property" and that defendant "is not otherwise subject to jurisdiction over his person by the court"; P.A. 85-394 made
previous provisions Subsecs. (a) and (c) and added Subsec. (b) requiring the plaintiff to provide notice to the defendant
of the existence of certain statutory rights which the defendant may wish to exercise concerning the prejudgment remedy;
P.A. 90-149 added Subsec. (d) restricting the prejudgment attachment of real property of a municipal officer; P.A. 91-315
amended Subsec. (a) to replace "upon verification by oath of the plaintiff or of some competent affiant that there is probable
cause" with "upon the filing of an affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of
fact sufficient to show that there is probable cause" and amended Subsec. (c) to require the court to hold a hearing and
determine the motion "not later than seven business days after its filing" rather than "expeditiously" and to provide that
the criterion for deciding whether the prejudgment remedy should remain in effect or be dissolved when the plaintiff has
relied on a ground set forth in Subsec. (a)(2) is whether there is probable cause to believe such ground exists; P.A. 93-431
amended Subsec. (a) to require that the affidavit contain facts sufficient to show 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 known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the
plaintiff" rather than probable cause "to sustain the validity of the plaintiff's claim", and delete the provisions allowing
issuance of the prejudgment remedy without a hearing when the prejudgment remedy requested is for "an attachment of
real property" or when there is reasonable likelihood that the defendant "neither resides in nor maintains an office or place
of business in this state and is not otherwise subject to jurisdiction over his person by the court" or "has stated he is insolvent
or has stated he is unable to pay his debts as they mature", amended Subsec. (b) to replace "If a prejudgment remedy is
granted" with "If a prejudgment remedy is issued" and substantially revise the language contained in the notice advising
the defendant of his rights including changing the basis on which the defendant may object to the prejudgment remedy
and adding the right to request the plaintiff to post a bond, inserted a new Subsec. (c) re contents of the notice and claim
form, designated the provisions of former Subsec. (c) re a motion to dissolve or modify as Subsec. (d) and amended said
Subsec. to specify the manner in which a defendant may move to dissolve or modify a prejudgment remedy, designated
the provisions of former Subsec. (c) re a court hearing as Subsec. (e) and amended said Subsec. to provide that the standard
at such hearing shall be probable cause that judgment will be rendered in the matter in favor of the plaintiff rather than
probable cause to sustain the validity of the plaintiff's claim, and relettered former Subsec. (d) as Subsec. (f), effective
January 1, 1994.
Cited. 172 C. 577. Cited. 176 C. 432. Statute "exhibits all the saving characteristics that the law of procedural due
process requires". 178 C. 393. Cited. Id., 446. Cited. 180 C. 49. Cited. 181 C. 42; Id., 524. Cited. 184 C. 85. Cited. 186 C.
329. Cited. 188 C. 69. Cited. 192 C. 150. Plaintiff may introduce at hearing additional evidence to buttress initial affidavit.
200 C. 406. Cited. 203 C. 475. "... unnecessary to direct ex parte application to the court to which the action was returnable".
208 C. 13. Cited. 218 C. 512. Cited. 222 C. 361; Id., 541. Cited. 223 C. 68. Cited. 224 C. 29. Cited. 226 C. 773. P.A. 93-431 cited. Id.
The affidavit need not stand alone in determining probable cause; it is the hearing that decides the issue. 1 CA 188.
Cited. Id., 349. Cited. 2 CA 388; Id., 404. Cited. 4 CA 330. Cited. 5 CA 90. Cited. 6 CA 7. Cited. 11 CA 289. Secs. 52-278a-52-278g cited. 14 CA 579. Cited. 16 CA 700. Cited. 19 CA 85; Id., 256. Cited. 20 CA 139. Cited. 21 CA 661. Cited.
28 CA 809. Cited. 29 CA 48. Cited. 32 CA 118. Cited. 39 CA 183. Cited. 46 CA 399.
Cited. 35 CS 24. Cited. 38 CS 98. Cited. 39 CS 88.
Subsec. (a):
Subdiv. (1): Since statute requires a factual showing that probable cause exists to sustain the validity of plaintiff's claim,
it comports with constitutional requirements. 180 C. 501. Subdiv. (2) cited. Id. Cited. 218 C. 281.
Cited. 10 CA 618. Cited. 21 CA 191. Cited. 26 CA 251.
Cited. 42 CS 241.
Subsec. (c):
Cited. 10 CA 618. Cited. 21 CA 191. Cited. 24 CA 169.