Opinion
(8647)
Argued September 27, 1990
Decision released April 30, 1991
Application for a prejudgment attachment of certain of the defendant's real and personal property, brought to the Superior Court in the judicial district of Stamford-Norwalk, Housing Session at Norwalk, where the court, Melville, J., denied the attachment, and the plaintiff appealed to this court. Reversed; further proceedings.
Marshall Goldberg, for the appellant (plaintiff).
Linda Lederman, with whom was Stuart A. Epstein, for the appellee (defendant).
The plaintiff appeals from the trial court's denial of its application for a prejudgment remedy.
Our review of the record, transcripts, oral decision of the court and briefs clearly indicates that the trial court did not follow the definition of civil probable cause as set forth in Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 583, 376 A.2d 60 (1977), and Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). That definition has not changed since our Supreme Court enunciated in Wall v. Toomey, 52 Conn. 35, 36 (1884), that civil probable cause constitutes "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." "The purpose of a hearing is to satisfy the constitutional due process right that parties whose property rights are to be affected are entitled to be heard `at a meaningful time and in a meaningful manner.'" Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra. "The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim." Id., 584.
The transcript reveals that in several instances the court focused on the plaintiff's ultimate success in a trial on the merits. As set forth in Ledgebrook and Three S, whether the plaintiff will ultimately prevail after a full hearing is not an element of the legal definition of civil probable cause. The court need determine only whether there is probable cause that judgment will be rendered for the plaintiff.