Opinion
No. NNH-CV-07-5008723
June 11, 2009
MEMORANDUM OF DECISION RE MOTION #140
The Defendant, Town of East Haven, has filed a Motion to Dismiss the Plaintiff's Application for Prejudgment Remedy. The plaintiff opposes this motion.
FACTS
On February 4, 2009, at the conclusion of a trial by jury, the Plaintiff, Paulina Lombardi, was awarded a verdict in the amount of $173,365.25 against the Defendant, Town of East Haven, et al. The defendant filed a motion to set aside the verdict on the basis that the plaintiff failed to sustain her burden of proof. The motion to set aside the verdict was denied by the Court (Keegan, J.), on May 19, 2009. In the interim, the plaintiff, on February 25, 2009 filed an application for prejudgment remedy against the Town of East Haven in order to secure her judgment against the town. In response, the defendant has filed its motion to dismiss the plaintiff's application for prejudgment remedy.
DISCUSSION
The defendant argues for dismissal of the application for prejudgment remedy on the basis that the plaintiff lacks subject matter jurisdiction under Connecticut Practice Book § 10-31(a). The defendant cites, Southern New England Telephone Co. v. Department of Public Utility Control, 64 Conn.App. 134, 137 (2001), which stated, "[a] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . ." In accordance with § 10-31(a) of the Connecticut Practice Book, the defendant relies on Connecticut General Statutes § 52-557 in arguing that the Town of East Haven, as a municipality, enjoys governmental immunity from liability, thus, shielding the defendant from a cause of action that can be heard by the court.
The Court disagrees. The plaintiff established at trial the liability of the Town of East Haven pursuant to C.G.S. § 13a-149. The claim of governmental immunity is inapposite considering the posture of this case.
The question before the court is one of whether a plaintiff, who has been awarded damages against a municipality may use the legislatively created device of a prejudgment remedy in order to secure a judgment owed to her by that municipality. To this question, the defendant argues there is no statutory authority allowing a plaintiff to seek an attachment of municipal property, thus, exempting the town from any such attachment. In addition, the defendant argues that an attachment of a prejudgment remedy against the Town of East Haven would be against public policy as it would essentially grant control over public property to private citizens. National Fireproofing Co. v. Town of Huntington, et al., 81 Conn. 632, 634 (1909) (granting of a mechanic's lien against the municipality is impermissible because foreclosure on such would put public property in private citizen's control).
The plaintiff directs the court to the case of Kevalis et al. v. Cook et al., No. 03CV4002528, 2006 Conn Super.LEXIS 967, (Conn.Super.Ct. Mar. 30, 2006) (Eveleigh, J.) [41 Conn. L. Rptr. 153]. In Kevalis, the plaintiff was awarded a judgment after trial by jury and similarly sought to attach a prejudgment remedy against the Town of Seymour to secure his judgment. The Court, there, based upon statutory analysis ruled that a municipality is not exempt from attachment and thus denied the defendant's motion to dismiss the application for prejudgment remedy. The Court in Kevalis, in referencing, Bray v. The Town of Wallingford, 20 Conn. 416 (1850), reasoned that a town, as defined as a "corporation" under the definitions of C.G.S. § 52-278, has the "ability to make contracts, and are liable to actions for debts due by them . . ." As such, the Court, there, further opined that it saw no such reason as to why an attachment statute should not apply to a town as it does all other corporations.
On the issue of whether this court has subject matter jurisdiction to conduct a hearing with regard to a prejudgment remedy application, this court finds the analysis of Kevalis to be persuasive. This court does have jurisdiction to hold a hearing on whether or not a prejudgment remedy should issue under the facts of this case or whether the judgment is in this instance adequately secured.