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Sechler-Hoar v. Trust U/W of Gladys G. Hoart

United States District Court, D. Connecticut

January 31, 2018

JOAN SECHLER-HOAR ET AL.
v.
TRUST U/W OF GLADYS G. HOART ET AL.

          RULING ON SUPPLEMENTAL BRIEFING RELATED TO PLAINTIFF'S APPLICATION FOR REJUDGMENT REMEDY

          Joan Glazer Margolis U.S. Magistrate Judge

         On November 22, 2017, plaintiff Joan Sechler-Hoar filed her complaint (Dkt. #1) against defendants Trust u/w of Gladys G. Hoart; Thomas C. Mackasek, as co-Trustee for Trust u/w of Gladys G. Hoart f/b/o Robert R. Hoar; Thomas C. Mackasek, individually; Cullen and Dykman LLP; Helen L. Hoart as co-Trustee for Trust u/w of Gladys G. Hoart f/b/o Robert R. Hoar; the Estate of Robert R. Hoar; Helen L. Hoart, individually; Helen L. Hoart, as executrix for the will of Gladys G. Hoart; Bailey Dunlap Sterrett, III; Brendan Gallagher Hoar; and Patrick Reddy Hoar. Plaintiff alleges, inter alia, breach of oral contract, quantum meruit, tortious interference with her and her now-deceased husband's inheritance, lack of mental capacity, breach of fiduciary duty, self dealing, conversion, fraudulent conveyance, fraud by inducement, intentional infliction of emotional distress, negligent infliction of emotional distress, legal malpractice, elder abuse, and violation of the Connecticut Unfair Trade Practices Act. (Id.). Many of the events at issue in the complaint occurred between 2004 and 2008. (Id.).

         On the day she filed the complaint, plaintiff also filed a Motion for Leave to Proceed In Forma Pauperis (Dkt. #2) and an Application for Prejudgment Remedy [“PJR] (Dkt. #3). On November 30, 2011, plaintiff filed an affidavit related to her PJR application. (Dkt. #6). On that same day, Judge Meyer granted plaintiff's Motion for Leave to Proceed In Forma Pauperis (Dkt. #7) and referred plaintiff's PJR application to this Magistrate Judge (Dkt. #8). On December 1, 2017, this Magistrate Judge issued an electronic order scheduling an evidentiary hearing on plaintiff's PJR application on December 6, 2017, requiring plaintiff to serve specific documents upon defendants, and requiring plaintiff to file a memorandum addressing three issues: first, whether this Court has subject matter jurisdiction over all the claims in this lawsuit, as opposed to a Probate Court in the State of New York where Gladys Hoart resided and died (see Marshall v. Marshall, 126 S.Ct. 1735 (2006) and Lefkowitz v. Bank of New York, 528 F.3d 102 (2d Cir. 2007)); second, whether this Court has in personam jurisdiction over the eleven defendants, all of whom reside in New York, Delaware, Washington, D.C., or Virginia; and third, whether the statute of limitations has run with regard to events that transpired in 2004-08. (Dkt. #11). Plaintiff filed the required memorandum on December 4, 2017. (Dkt. #14).

         Plaintiff's PJR application sought an attachment of $500, 000 against a trust account being held at Merrill Lynch, the funds of which were scheduled to be distributed by December 8, 2017, and against a property located in Bridgeport, Connecticut. (Dkt. #3; see also Dkt. #6). In open court on December 6, 2017, the parties reached an agreement granting in part plaintiff's PJR application. (Dkts. ##21, 23-24). Without conceding or contesting probable cause, the defendants agreed to provide the following: (1) a $500, 000 cash bond to secure plaintiff's claims, and (2) a lien of prejudgment attachment on real property located at 350 Grovers Avenue, Unit 7E, Bridgeport, CT, 06605. (Dkt. #23). The parties further agreed to submit supplemental briefing on whether the Connecticut statutes permit the defendant Trust to sell the so-liened property upon the posting of a substituted bond, and whether the Court has the authority to bar such a sale during the pendency of the action. (Id.). Plaintiff filed her initial brief on January 18, 2018 (Dkt. #34), and defendants filed their initial brief the next day (Dkts. ##36-37).[1] Plaintiff filed her reply brief on January 25, 2018 (Dkt. #41), and defendants filed their reply brief the next day (Dkt. ##42-43).[2]

         For the reasons set forth below, this Court finds that Conn. Gen. Stat. § 52-304 permits defendants to dissolve the lien of attachment on the real property in question upon the posting of a substituted bond, and that such provision is not discretionary; this Court may only review the proposed substitution to determine that it has a net equity value that is equal to or greater than the value of the attachment. Accordingly, plaintiff's Application for Prejudgment Remedy (Dkt. #3) is granted in part and denied in part, such that defendants will provide a $500, 000 cash bond and a lien on the real property in question to secure plaintiff's claims, but defendants may apply to dissolve the attachment lien pursuant to Conn. Gen. Stat. § 52-304.

         I. DISCUSSION

         A. LEGAL STANDARD FOR PREJUDGMENT REMEDY

         A PJR “is generally intended to secure the satisfaction of a judgment should plaintiff prevail.” Cendant Corp. v. Shelton, No. 3:06 CV 854 (JCH), 2007 WL 1245310, at *2 (D. Conn. Apr. 30, 2007)(citation omitted). Rule 64 of the Federal Rules of Civil Procedure authorizes the Court to enter a PJR as may be permitted “under the law of the state where the court is located” in order “to secure satisfaction of the potential judgment.” Fed.R.Civ.P. 64(a); see Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 436 n. 10 (1974).

         Pursuant to the Connecticut PJR statute, the standard for issuing a prejudgment remedy is probable cause, so that a prejudgment remedy is appropriate

[i]f the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the [movant] has shown probable cause that such a judgment will be rendered in the matter in the [movant's] favor in the amount of the prejudgment remedy sought . . . .

Conn. Gen. Stat. § 52-278d(a). “Probable cause” has been defined by the Connecticut courts as “‘a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.'” Walpole Woodworkers, Inc. v. Atlas Fencing, Inc., 218 F.Supp.2d 247, 249 (D. Conn. 2002), quoting Three S. Dev. Co. v. Santore, 193 Conn. 174, 176 (1984)(citation omitted). A PJR proceeding is “only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action.” Benton v. Simpson, 78 Conn.App. 746, 751-52 (Conn. App. Ct. 2003)(citation & internal quotations omitted). While a PJR hearing “is not contemplated to be a full scale trial on the merits of plaintiff's claim[s], ” Bank of Boston Conn. v. Schlessinger, 220 Conn. 152, 156 (1991)(multiple citations & internal quotations omitted), a plaintiff is “bound to furnish proof of [her] damage with reasonable probability, and not leave the trial court to speculation and conjecture.” Mullai v. Mullai, 1 Conn.App. 93, 95 (Conn. App. Ct. 1983)(per curiam). After a hearing, the Court must “consider not only the validity of the plaintiff's claim but also the amount that is being sought.” Calfee v. Usman, 224 Conn. 29, 38 (1992) (citation & internal quotations omitted). Additionally, the Court must “evaluate not only the plaintiff's claim but also any defenses raised by the defendant.” Balzer v. Millward, Civ. No. 3:10 CV 1740 (SRU)(HBF), 2011 WL 1547211, at *1 (D. Conn. Apr. 21, 2011), quoting Haxhi v. Moss, 25 Conn.App. 16, 20 (Conn. App. Ct. 1991)(citation omitted).

         B. DISSOLUTION OF ATTACHMENT LIEN ON REAL PROPERTY

         In open court on December 6, 2017, the parties agreed that for the security of her claims, defendants would provide plaintiff with, inter alia, a lien of prejudgment attachment on the real property located at 350 Grovers Avenue, Unit 7E, Bridgeport, CT, 06605. (Dkt. #23). The parties sought leave to file supplemental briefing such that this judicial officer would determine whether Connecticut statutes permit the defendant Trust to sell the so-liened property upon ...


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