Summary
In Town of Canterbury et al. v Kukevitch et al. (2003 CT.Sup. 8075, 35 Conn. L. Rptr. 14 Docket No. CV-03-0070337, June 17, 2003), Judge Foley, in the Windham Judicial District, analyzed the split of authority between CT Page 3259 Kosilla (supra) and the other cases cited herein for the proposition that a temporary injunction required both pleading and proof of irreparable harm.
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No. CV 03 0070337
June 17, 2003
MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY
The plaintiffs, the town of Canterbury, Darlene Gannon, the zoning enforcement officer, and Robert Ken, the building official, have brought an application for a prejudgment remedy against the defendants, Blaine Kukevitch, James Donofrio and Reliance House, Inc. The application arises out of the defendants' alleged use of their property, located at 35 Finn Road in Canterbury, Connecticut, as a business involving the housing and care of convicted sex offenders.
According to the plaintiffs' application, the defendants' property is adjacent to the Canterbury Elementary School, the Canterbury Middle School and a privately owned nursery school. The application states that the housing of convicted sex offenders at such close proximity to these schools has created outrage among the citizens of the town. As a result, town officials have expended substantial resources in an effort to keep the peace among its citizens.
On April 30, 2003, pursuant to General Statutes § 52-278a et seq., the plaintiffs filed an application for a prejudgment remedy accompanied by an unsigned writ of summons, complaint and affidavits. In the application, the plaintiffs allege that the defendants' use of the property as a business is illegal in that it violates town ordinances with respect to zoning and building codes, and that the defendants have no permits for such use. The application seeks a temporary injunction to close the defendants' business on the property.
On May 19, 2003, the matter came before this court. At that time, counsel for the defendants raised various objections to the plaintiffs' application, including an objection that the application for a prejudgment remedy is an improper vehicle to seek the relief requested by the plaintiffs. This court gave the parties ten days in which to brief this particular issue. A memorandum was filed jointly by Kukevitch and Donofrio on May 27, 2003. On May 29, 2003, Reliance House, Inc., filed a motion to strike or deny the application with a supporting memorandum and the plaintiffs filed a memorandum in support of the application.
"The purpose of a prejudgment remedy is to preserve the assets while a matter is being litigated." (Internal quotation marks omitted.) Ross v. Smith, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0069400 (April 14, 2003, Foley, J.) ( 34 Conn.L.Rptr. 448). "[P]rejudgment remedies are in derogation of the common law and, therefore . . . prejudgment remedy statutes must be strictly construed . . ." Feldmann v. Sebastian, 261 Conn. 721, 726, 805 A.2d 713 (2002). Thus, the provisions and requirements contained in the prejudgment remedy statutes "may not be disregarded with impunity, nor waived or changed by courts." (Internal quotation marks omitted.) Id., 725.
In the present case, the plaintiffs assert that they have applied for a "garden-variety" prejudgment remedy. The plaintiffs further argue that because they are also seeking substantial fines for long-standing zoning violations, a prejudgment remedy is appropriate. In their application for prejudgment remedy, however, the plaintiffs state that the relief that they seek is a temporary order enjoining the defendants from operating their business. Granting the requested relief would result in the ouster of the current tenants living on the defendants' property.
"General Statutes § 52-278a (d) defines a prejudgment remedy as any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order." (Internal quotation marks omitted.) Feldmann v. Sebastian supra, 261 Conn. 726-27. "When legislation defines the terms used therein such definition is exclusive of all others." (Internal quotation marks omitted.) Id., 728. "Section 52-278a, therefore, expressly limits the term prejudgment remedy to an attachment, a foreign attachment a garnishment, replevin or a combination thereof." (Internal quotation marks omitted.) Id., 727.
The prejudgment remedy statute does not encompass a temporary injunction as a possible remedy. See Rhode Island Hospital Trust National Bank v. Trust, 25 Conn. App. 28, 32, 592 A.2d 417, cert. granted, 220 Conn. 904, 593 A.2d 970 (1991) (appeal withdrawn July 10, 1992). The plaintiffs, by their own admission, are not seeking a prejudgment remedy to preserve assets while this matter is being litigated. Rather, the plaintiffs are attempting to cloak the remedy sought namely a temporary injunction, in prejudgment remedy garb. Moreover, even if the plaintiffs were seeking to attach the defendants' property to assure payment for substantial fines for long-standing zoning violations, "combining a prejudgment attachment with a temporary injunction does not transform the latter into a [prejudgment remedy]." Id. Because the plaintiffs do not seek an attachment, a foreign attachment, a garnishment, replevin or a combination thereof, a prejudgment remedy is an inappropriate vehicle through which to seek the requested relief.
The plaintiffs, relying on Built in America, Inc. v. Morris, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0454752 (January 7, 2002, Booth, J.), argue that the defendants were served with notice pursuant to Practice Book § 4-5 and that procedural filing mistakes, if any, were non-fatal to their application, as their cause of action was rightly understood by the defendants. In Built in America, Inc. v. Morris, the defendant, after a full evidentiary hearing was conducted on a request for a temporary injunction, filed a motion to dismiss for lack of subject matter jurisdiction after the plaintiff mistakenly referenced the prejudgment remedy statutes in his application. The court denied the motion on the ground that the paperwork presented to the court was sufficient to initiate a civil action and to advise all the parties to the action that the plaintiff was seeking a temporary injunction. Unlike Built in America, Inc. v. Morris, however, the defendants in the instant matter lodged objections to the plaintiffs' application prior to an evidentiary hearing and the paperwork presented to the court is insufficient to initiate a civil action and to advise all the parties to this action that the plaintiff is seeking a temporary injunction.
The plaintiffs cite General Statutes § 52-123, which states: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court."
Specifically, as discussed below, notice was not given to all interested parties, namely, the defendants' tenants. Additionally, the plaintiffs have not submitted a signed writ of summons. In MDS Consulting Services v. Tedford, Superior Court, judicial district of Hartford, Docket No. CV 96 0566222 (January 12, 1998, Hennessey J.) ( 21 Conn.L.Rptr. 179, 180), for example, the court emphasized that a prerequisite to obtaining injunctive relief is service of a signed writ, summons and complaint pursuant to General Statutes § 52-45a. Further, in Acadia Services v. Flato, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02396940 (October 23, 2002, Thim, J.), the plaintiff served the application for temporary injunction and verified complaint on the defendants without a writ of summons. While the defendants were served with an order to show cause, the court in Acadia Services v. Flato, found that this notice did not take the place of a writ of summons, which is a statutory prerequisite to the commencement of a civil action. Accordingly, the court finds that the totality of these procedural defects renders the plaintiffs' application fatal.
Further, even if the plaintiffs were able to overcome these procedural defects and the court were to consider their application as an application for a temporary injunction, the plaintiffs' application is legally insufficient. "Under Connecticut law, the phrase temporary injunction refers both to what the somewhat more highly articulated federal courts would call a temporary restraining order (i.e., one issued without notice to the adverse party) and to what they would call a preliminary injunction (i.e., one issued after notice and hearing)." New England Eyecare v. New England Eyecare, Superior Court, judicial district of Waterbury, Docket No. CV 099465 (January 18, 1991, Blue, J.) ( 3 Conn.L.Rptr. 724). At the May 19, 2003 hearing, the plaintiffs referenced General Statutes § 52-278c (4) (c) and requested this court to rule on the application without a hearing. The plaintiffs, therefore, have requested the court to issue an ex parte injunction in the form of a temporary restraining order.
General Statutes § 52-278c (4) (c) provides in relevant part: "if the application [for prejudgment remedy] includes a request for a temporary restraining order, the court or a judge of the court shall act on the application for the temporary restraining order, fix a date for the hearing on the prejudgment remedy and sign the order of hearing and notice."
Curiously, while the plaintiffs requested the court to address their request for a temporary injunction on the papers without a hearing, the plaintiffs had subpoenaed the defendants for an evidentiary hearing and the defendants appeared in court ready to proceed. An evidentiary hearing was not held, however, because the plaintiffs' witnesses were not present.
Authority for such an action is authorized by General Statutes § 52-473 (a), which provides in relevant part: "An injunction may be granted immediately, if the circumstances of the case demand it . . ."
"[A] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.) Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). The plaintiffs, relying on their status as a municipality alleging zoning violations, argue that they are relieved of the burden of proving irreparable harm. See Gelinas v. West Hartford, 225 Conn. 575, 588, 626 A.2d 259 (1993). The defendants contest this assertion and argue that the plaintiffs' application is legally insufficient because they have failed to plead irreparable harm and lack of an adequate remedy at law in their application.
The court notes that there is a split of authority on the issue of a municipality's burden concerning an application for a temporary injunction. Compare Kosilla v. Collins Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 00 0801571 (November 29, 2000, Berger, J.) ( 29 Conn.L.Rptr. 11) (finding no rationale to differentiate between temporary and permanent injunctions and holding that the plaintiff, a municipality, need not allege and prove irreparable harm or lack of an inadequate remedy at law on a motion for temporary injunction), with Granby v. Schlicht, Superior Court, judicial district of Hartford, Docket No. CV 01 0811944 (January 14, 2002, Beach, J.) ( 31 Conn.L.Rptr. 275) (finding that in light of compelling policy reasons, a municipality must meet the traditional injunction standards including a showing of irreparable harm on a motion for a temporary injunction), and Kwiatkoski v. Johnson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 0307032 (October 27, 1993, Vertefeuille, J.) ( 10 Conn.L.Rptr. 311) (same). This court agrees with the line of cases that require a municipality to maintain the burden of proving irreparable harm and lack of an adequate remedy at law in an application for a temporary injunction. Because the plaintiffs have failed to allege these injuries in their application, the court finds that the plaintiffs' application is legally insufficient.
Moreover, "General Statutes § 52-473 (b) provides in relevant part that [n]o temporary injunction may be granted without notice to the adverse party unless it clearly appears from the specific facts shown by affidavit or by verified complaint that irreparable loss or damage will result." (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 162, 788 A.2d 1158 (2002). None of the documents submitted by the plaintiffs specifically allege irreparable loss or damage. The facts set forth by the plaintiffs in their complaint and supporting affidavits are, at best, speculative as to irreparable loss. See, e.g., Tighe v. Berlin, 259 Conn. 83, 93, 788 A.2d 40 (2002) (finding that the trial court correctly concluded that the plaintiffs had not suffered irreparable harm because their claims regarding this issue were speculative and unsupported by the record). Accordingly, the plaintiffs have failed to sufficiently allege specific facts to demonstrate that irreparable loss or damage will result in compliance with General Statutes § 52-473 (b).
Finally, the court notes that "[i]t is a well-established rule of this jurisdiction that a court will not proceed to adjudicate a matter until all persons directly concerned have been given actual or constructive notice of the pendency of the proceedings and a reasonable opportunity to appear and to be heard." Gill v. Shimelman, 180 Conn. 568, 570, 430 A.2d 1292 (1980). In relevant part, Practice Book § 4-5 provides that "[n]o temporary injunction shall be granted without notice to each opposing party." The defendants argue that the plaintiffs' application should fail because the tenants, who are currently living at the property involved in this dispute, have not been joined in the matter or received notice of a hearing.
"[A]ny tenant who claims in the future that his rights are affected by the judgment in this case may exercise his right under § 52-474 to appear and to be heard . . ." Gill v. Shimelman, supra, 180 Conn. 571-71. The tenants in this matter, however, have not received notice. It is uncontested that the relief that the plaintiffs seek is the ouster of these tenants. Furthermore, the named defendants' interests in this matter may be prejudiced by multiple suits or multiple liability in unnecessary litigation later on, if the tenants are not included as parties. See id. Accordingly, the court finds that the tenants have a direct interest in the case and the plaintiffs' failure to provide notice to the tenants is an appropriate ground for denial.
ORDER
Based on the procedural and substantive deficiencies contained in the plaintiffs' application for prejudgment remedy, the court denies the application.
Foley, J.