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DOCKET NO.: MMX-CV23-5016264-S : SUPERIOR COURT
:
THE CONNECTICUT NOVELTY CO. : JUDICIAL DISTRICT OF MIDDLESEX
DBA MALLOVES JEWELERS :
v. : AT MIDDLETOWN
:
CHRISTINE GRAICHEN : MAY 17, 2024
NOTICE OF ADDITIONAL AUTHORITY
The plaintiff has filed an additional brief, contending that “Courts in Connecticut have
repeatedly rejected the argument that the homestead exemption serves as a basis to deny a PJR,”
citing three unpublished Superior Court cases. But other cases have denied PJRs on this very
basis—exemption. See, e.g., Evans v. Adzie, FBT-CV17-6068596, 2019 Conn. Super. LEXIS
4362 (Jan. 28, 2019) (Jennings, J.) (attached). Such decisions are respectfully more persuasive
than the authorities cited by the plaintiff, because this ground for defense exists both in the
prejudgment remedy statute, Conn. Gen. Stat. § 52-278d, and the civil forms issued by the
Judicial Branch, e.g., JD-CV-53 (Rev. 7-01).
Respectfully submitted,
THE PLAINTIFF
By: __/s/__Alexander T. Taubes
Alexander T. Taubes
470 James Street
Suite 007
New Haven, CT 06513
(203) 909-0048
alextt@gmail.com
Juris No.: 437388
1
CERTIFICATION
On this day of May, 2024, the foregoing was emailed to all counsel of record in the
above-captioned matter.
/s/Alexander T. Taubes
Alexander T. Taubes
2
NOTICE OF APPLICATION FOR STATE OF CONNECTICUT COURT USE ONLY
PREJUDGMENT REMEDY/CLAIM FOR SUPERIOR COURT CLPJRA CLPJRHG
HEARING TO CONTEST APPLICATION www.jud.ct.gov Application Contest PJR
For PJR
OR CLAIM EXEMPTION Instructions To Plaintiff/Applicant
Application
(If Section III
JD-CV-53 Rev. 7-01 Completed)
C.G.S. §§ 52-278c et seq.
1.Complete section I in connection with all prejudgment remedies EXCEPT ex parte prejudgment
remedies and submit to the Clerk along with your application and other required documents.
2.Upon receipt of signed order for hearing from clerk, serve this form on defendant(s) with other required documents.
Section 1 — Case Information (To be completed by Plaintiff/Applicant)
Geographical Court address
Judicial Housing Area
District Session number
Amount, legal interest, or property in demand, exclusive of interest and costs is
("X" one of the following)
Has a temporary restraining order been requested? Yes No
Name of Case (First-named plaintiff vs. First-named defendant) Less than $2500
$2500 THROUGH $14,999.99
*CLPJRA*
CLPJRA
$15,000 or more
See attached form JD-CV-67 for Continuation of Parties ("X" if applicable)
Case type (From Judicial Branch code list) Number counts Claiming other relief in addition to or in lieu
Major: Minor: of money damages
Name and address of Plaintiff/Applicant (Person making application for Prejudgment Remedy) (Number, street, town and zip code)
Name(s), address(es) and telephone number(s) of Defendant(s) against whom prejudgment remedy is sought (Number, street, town and zip code) (Attach additional sheet if necessary)
Name and address of any third person holding property of Defendant who is to be made a garnishee by process preventing dissipation of such property
Name and address of Attorney, Law Firm or Plaintiff if pro se (Number, street, town and zip code)
For the Plaintiff(s)
enter the
Telephone number Juris number (If attorney or law firm) Signed Date signed
appearance of:
Section II — Notice To Defendant
You have rights specified in the Connecticut General Statutes, including Chapter 903a, that you may wish to exercise concerning this
application for a prejudgment remedy. These rights include the right to a hearing:
(1) to object to the proposed prejudgment remedy because you have a defense to or set-off against the action or a counterclaim against the
plaintiff or because the amount sought in the application for the prejudgment remedy is unreasonably high or because payment of any
judgment that may be rendered against you is covered by any insurance that may be available to you;
(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 you be allowed to substitute a bond for the prejudgment remedy sought; and
(4) to show that the property sought to be subjected to the prejudgment remedy is exempt from such a prejudgment remedy.
You may request a hearing to contest the application for a prejudgment remedy, assert any exemption or make a request concerning the
posting or substitution of a bond in connection with the prejudgment remedy. The hearing may be requested by any proper motion or
by completing section III below and returning this form to the superior court at the Court Address listed above.
You have a right to appear and be heard at the hearing on the application to be held at the above court location on:
Date Time Courtroom
M.
Section III — Defendant's Claim And Request For Hearing (To be completed by Defendant)
I, the defendant named below, request a hearing to contest the application for prejudgment remedy, claim an exemption or
request the posting or substitution of a bond. I claim: ("X" the appropriate boxes)
that the amount sought in the application for
prejudgment remedy is unreasonably high.
a defense, counterclaim,
set-off, or exemption.
*CLPJRHG*
CLPJRHG
FOR COURT USE ONLY
that any judgment that may be rendered is that I be allowed to substitute a
adequately secured by insurance. bond for the prejudgment remedy.
that the plaintiff be required to post a bond to secure me against
any damages that may result from the prejudgment remedy.
I certify that a copy of the above claim was mailed/delivered to the Plaintiff
or the Plaintiff's attorney on the Date Mailed/Delivered shown below.
Date copy(ies) mailed or delivered Signed (Defendant) Date signed
Type or print name and address of Defendant Docket number
PJR CV
Name of each party served* Address at which service was made*
*If necessary, attach additional sheet with names of each party served and the address at which service was made.
Print Form Reset Form
User Name: 12345679
Date and Time: Sunday, April 28, 2024 4:22:00PM EDT
Job Number: 223012006
Document (1)
1. Evans v. Adzie
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Evans v. Adzie
Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport
January 28, 2019, Decided
DOCKET NO. FBT CV17-6068596
Reporter
2019 Conn. Super. LEXIS 4362 *
JOHN J. EVANS v. SHEILA ADZIE, AKA Procudural/Factual Background
SHEYLA RAMOS, AKA SHEILA HERNANDEZ
This action sounding in intentional infliction of
Notice: THIS DECISION IS UNREPORTED emotional distress, negligent infliction of
AND MAY BE SUBJECT TO FURTHER emotional distress, defamation, and malicious
APPELLATE REVIEW. COUNSEL IS prosecution is commenced by former attorney
CAUTIONED TO MAKE AN INDEPENDENT John J. Evans against his former office
DETERMINATION OF THE STATUS OF THIS assistant, the defendant Sheila Adzie also
CASE. known as Shayla Ramos arising out of an
agreed arrangement entered into in April of
Subsequent History: Motion denied by Evans 2012 while the defendant was in the employ of
v. Adzie, 2019 Conn. Super. LEXIS 3701 the plaintiff whereby the defendant agreed to
(Conn. Super. Ct., Mar. 20, 2019) open an account for internet, television and
telephone cable access for the use of the
Dismissed by Evans v. Adzie, 2019 Conn. plaintiff at his home in Stamford.
Super. LEXIS 3926 (Conn. Super. Ct., Apr. 10,
2019) Following a four-day evidentiary hearing and
review of some 25 exhibits and the
Motion denied by Evans v. Adzie, 2019 Conn. memoranda of law of the parties the court
Super. LEXIS 3974 (Conn. Super. Ct., June finds that there is probable cause to believe
24, 2019) that the following facts are true.
Motion denied by Evans v. Adzie, 2019 Conn. The account was voluntarily opened was by
Super. LEXIS 3912 (Conn. Super. Ct., July 18, the defendant with AT&T U-Verse in her name,
2019) subject to plaintiff's promise that he would pay
the monthly bills on the account with his own
Judges: [*1] Alfred J. Jennings, Jr., Judge credit card. The arrangement was meant to get
Trial Referee. cable, TV and internet access [*2] for the
plaintiff at his home without his having to put
Opinion by: Alfred J. Jennings, Jr. down a deposit, since the defendant already
had an AT&T account which permitted her to
Opinion
have an account at a second location without a
deposit. The defendant arranged for the
account to be opened and for the installation at
Memorandum of Decision on Plaintiff's plaintiff's home. She also provided the plaintiff
Application for Prejudgment Remedy (No. 161) with her date of birth and the password to
2019 Conn. Super. LEXIS 4362, *2
access the account. stating that she was the victim of identity theft
in that someone had used her identity without
The plaintiff closed his law office in April of her knowledge or consent to open a
2013 and the defendant left his employ to work telecommunications [*4] account in her name
elsewhere several weeks later. The plaintiff and fraudulently obtained telecommunication
decided in April, 2013 to move his personal services in her name at the address of 4
residence from Stamford to 4 Kellee Court in Kellee Court Norwalk, Connecticut. The police
Norwalk and the defendant authorized were able to identify the plaintiff as the person
switching the account to the Norwalk address, living at that address. Mr. Evans explained to
where the arrangement continued without the officer the whole background of Ms. Adzie
incident. In April of 2014 the plaintiff received willingly setting up the AT&T/Frontier account
notification that AT&T was changing its name for his use first at his Stamford home and later
on the account to Frontier Communications. at his Norwalk place of residence at 4 Kellee
When the first bill from Frontier Court. The police interviewed the defendant
Communications arrived on or about and advised her of plaintiff's position but she
November 1, 2014 the plaintiff had a question "stood by" and confirmed her previous
about the bill and called Frontier to discuss the statements which plaintiff had challenged as
bill. Frontier refused to discuss the account false. She further stated to the police that
with anyone but the defendant. After some plaintiff John Evans was a "complete mess"
time went by without Frontier being willing to and a "toxic" person. Mr. Evans followed up
discuss the account [*3] with the plaintiff he with an affidavit and a detailed letter of
called and suggested that Frontier just cancel February 8, 2016 to Detective Deriu. Mr.
the account. He testified that he paid the Evans was able eventually to retrieve from his
December 1, 2014 bill and then left a message icloud backup a series of text messages
and a text for the defendant that he was between himself and Ms. Adzie which confirm
having a problem with Frontier that he couldn't his position that she had consented willingly to
fix. He received no response to his messages. the opening of the account for his use and the
Frontier cut off his access to the online and transfer of the account to his Norwalk address.
telephone accounts he had used to make He made those emails available to the
payments on the account. He states that a Stamford Police but a warrant had already
Frontier representative told him that Frontier issued from the Superior [*5] Court
would not accept his checks as payment authorizing his arrest. Plaintiff John Evans was
because he was not the person named on the arrested on February 16, 2016 on charges of
account. Consequently he made no payments identity theft in the third degree (a felony
to Frontier after the December 2014 payment. offense) and larceny in the fifth degree.
He and his wife continued to use the service Thereafter the police confronted the defendant
without payment until Frontier shut off the with the text messages between herself and
service sometime in 2015. the plaintiff which expressly confirmed her
The next event that occurred was a call to the knowledge of and authorization for plaintiff to
plaintiff from Officer Deriu of the Stamford use the telecommunication account in her
Police department who was investigating a name including messages(s) to the plaintiff
criminal complaint of identity theft filed by the wherein she had provided to him her date of
defendant. The plaintiff learned that the birth, last four digits of her social security
defendant had filed a complaint with the number, email address and the password to
Stamford police on or about October 12, 2015 the account. Defendant took no steps to
2019 Conn. Super. LEXIS 4362, *5
recant, retract, or correct her previous To garnish the wages of the said defendant
statements to the police. Mr. Evans entered an from the garnishee Berkowitz and Hanna, LLC,
appearance to represent himself in criminal of 733 Summer Street, 2nd Floor, Stamford, Ct
court in defense of the charges. He was 06901, as it is the agent, trustee, employer
ultimately able to convince the prosecutor of and/or debtor of the defendant and has
the truth of his statements and the state concealed in its possession property of the
agreed to "nolle" all charges which was defendant and is indebted to her."
entered before Judge White on May 29, 2018.
Mr. Evans immediately asked for a dismissal There is undisputed testimony of the
of the charges which the prosecution did not defendant, and the court finds that, as of her
object to, and all charges were dismissed. testimony on September 26, 2018 she is a full
time student in a Master's program at NYU and
The plaintiff incurred expenses of $1,681.18 in was not employed at that time. (TR 9/26/18
the defense of the criminal charges. His arrest 131). The requested garnishment of her wages
and [*6] prosecution were the subject of from her former employer Berkowitz & Hanna,
extensive publicity, with photos of himself, in LLC is therefore moot, and cannot be granted.
the local press and cable television. The The only prejudgment remedy being
charges were also made known ro Frontier adjudicated is the attachment of the
Communications, Inc. and the credit reporting defendant's interest in the home she owns
agencies. Plaintiff alleges that the false jointly with her husband at 56 Linden Street in
statements made by the defendant, and the Norwalk.
resulting publicity of his arrest caused him to Applicable Law
suffer extreme emotional distress, great
humiliation, disgrace, mental anguish, and Conn. Gen. Stat. §52-278d, provides, with
physical discomfort. respect to a hearing on a plaintiff's application
for prejudgment remedy, that:
Now before the court is plaintiff a Application
for Prejudgment Remedy (PJR) dated (a) the defendant shall have the right to
September 18, 2018 (No. 161) by which the appear and be heard at the hearing. The
plaintiff seeks, to secure the sum of $30,000 hearing shall be limited to a determination
(1) by an attachment on the land and buildings of (1) whether or not there [*8] is probable
on Linden Street, in the town of Norwalk cause that a judgment in the amount of the
known as Lot number 94 on a map entitled prejudgment remedy sought, or in an
"Map of Section A, West Rocks Estate at amount greater than the amount of the
Norwalk, Connecticut, scale 1" = 80ft, January, prejudgment remedy sought, taking into
1952" Samuel W. Hoyt. Jr. Co. Inc., South account any defenses, counterclaims, or
Norwalk, Connecticut, certified substantially setoffs, will be rendered in the matter in
correct by Harry E. Bryan, Vice President, Civil favor of the plaintiff, (2) whether payment
Engineer and Surveyor. Reference to said of any judgment which may be rendered
map which is on file in the office of the town against the defendant is adequately
clerk in said Norwalk as map number 3560. is secured by insurance, (3) whether the
hereby made for a more particular description property sought to be subjected to the
and location of said premises " (Being the prejudgment remedy is exempt from
home of [*7] the defendant Sheila Adzie at 56 execution, and (4) if the court finds that the
Linden Street, Norwalk CT owned jointly by application for the prejudgment remedy
her and her husband Connor Parker); and (2) " should be granted, whether the plaintiff
2019 Conn. Super. LEXIS 4362, *8
should be required to post a bond to from injuries arising from the legal
secure the defendant against damages consequences of the plaintiff's volitional
that may result from the prejudgment criminal conduct...." Id. The policy does not
remedy or whether the defendant should apply here. There is no allegation of any
be allowed to substitute a bond for the criminal conviction or criminal conduct of
prejudgment remedy. If the court, upon the [*10] plaintiff John Evans related to the
consideration of the facts before it, and allegations of his civil complaint in this case.
taking into account any defenses, He was cleared of the criminal charges of
counterclaims, or setoff, claims of identity theft and larceny in the arrest made by
exemption, and claims of adequate complaint of the defendant. There is no
insurance, finds that the plaintiff has shown allegation or evidence of any other criminal
probable cause that such a judgment will misconduct on his part.
be rendered in the matter in the plaintiff's
favor in the amount of the prejudgment Defendant suggests that her allegedly false
remedy sought, and finds that a statements to the Stamford Police Department
prejudgment remedy [*9] securing the which form the basis of the tort allegations
judgment should be granted, the against her in this case are protected by the
prejudgment remedy applied for shall be doctrine of qualified privilege or immunity..
granted as requested or as modified by the Under the common law statements made by a
court.... complaining witness to the police are subject
to qualified immunity. Petyan v. Ellis, 200
Probable cause has been defined as a bona Conn. 243, 252, 510 A.2d 1337 (1986).
fide belief in facts essential under the law for Defendant concedes, however, that "qualified
the action and such as would lead a privilege may be defeated by showing, by a
reasonable, prudent person to entertain such preponderance of the evidence, of the
belief. Dufraine v. CHRO, 236 Conn. 250, 261, existence of actual malice, also known as
673 A.2d 101 (1996). constitutional malice or malice in fact."
(Memorandum of Law, No. 172, P.4, citing
No Answer or Special Defense(s) have yet Crismale v. Walston, 184 Conn. App. 1, 10,
been filed, but the defendant has briefed (No. 194 A.3d 301 (2018).) The Memorandum of
172) four theories of defense to this PJR Law continues:
Application: Wrongful Conduct Rule,
Homestead Exemption, Qualified Privilege, The Second Circuit Court of Appeals
and Libel Proof Plaintiff Doctrine. explained the critical difference between
common law malice and an constitutional
Discussion
malice. Konikoff v. Prudential Insurance
The wrongful conduct rule is based on the Company of America, 234 F. 22d 02, 99
public policy consideration that the court (2d Cir. 2000). "Common law malice
should not lend assistance to one who seeks focuses on the Defendant's attitude
compensation under the law for injuries towards the plaintiff. [*11] Constitutional
resulting from his own acts when they involve malice or malice in fact focuses on
a substantial violation of the law. Greenwald v. Defendant's attitude toward the truth."
van Handel, 311 Conn. 370, 385, 88 A.3d 467 (Memorandum of Law, p. 4-5)
(2014). "...[I]t is clear to this court that it would
violate the public policy of our state to impose Given the conflicting evidence of malice or lack
a duty on the defendant to protect the plaintiff thereof, or the degree of any malice, on the
2019 Conn. Super. LEXIS 4362, *11
part of the defendant in making her statements for the defendants to prevail on their special
to the Stamford Police that the AT&T/ Frontier defense of incremental harm, they must prove
account at 4 Kellee Court was not authorized the allegedly libelous statements caused the
by her, the court finds that the defendant has plaintiff no additional injury. Yet, whether the
not established probable cause that she can defendants have satisfied that burden is not for
prove by a preponderance of the evidence her this court to determine at this time...
suggested defense of qualified immunity, or Notwithstanding the blurring of these doctrines
that she has not lost the umbrella of qualified [Libel-Proof [*13] Plaintiffs, Substantial Proof,
immunity by actual malice toward the truth. and the Incremental Harm Doctrine] this court
This defense, if actually pleaded as a special finds that the incremental harm doctrine has
defense, will have to be determined at a full vitality under the facts of this case and is a
trial on the merits. proper defense."
The Libel Proof Plaintiff Doctrine stands for the In this case the only count of the Amended
proposition that a plaintiff's reputation may be Complaint to which the libel-proof
so badly tarnished that he cannot be further plaintiff/incremental harm defense might apply
injured by allegedly false statements. See is the Third Count sounding in defamation
Guccione v. Hustler Magazine, Inc., 800 F.2d against the defendant Sheila Adzie for
298, 303 (2d Cir. 1986). The doctrine has no allegedly publishing false statements about the
appellate support in Connecticut but has been plaintiff to the Stamford Police, to the
approved by Judge Berger in one Superior telecommunication services company, and to
Court case, Allan v. The Hartford Courant, the credit reporting companies, which were
Docket No. CV00-0599993S, Superior Court, published in local news reports which is the
Judicial District of Hartford (March 8, 2001), only count specifically seeking reputation
2001WL291162 where the doctrine was [*12] damages as compared to emotional distress or
applied under the name "incremental harm cost of defense damages. But Mr. Evans
doctrine" in a defamation (libel) case against advised the court at the commencement of his
the newspaper and its reporter by a plaintiff final argument on September 27, 2018 that he
police officer who had been involved in the was not relying on his defamation claim (Count
shooting of a fourteen year old person which Three) for purposes of his Application for
had cause great controversy in the Hartford Prejudgment Remedy. It is therefore not
community and had been the subject of much necessary at this point to go into the
publicity. The plaintiff moved to strike the suggested defense of libel-proof plaintiff.
defendants' special defense of incremental
harm which the court, with reference to The fourth and final defense suggested by the
Herbert v. Lando, 781.F2d 298 (2d Cir.) cert defendant in her Memorandum of Law is the
denied, 476 U.S. 1182, 106 S. Ct. 2916, 91 L. Homestead Exemption under Conn. Gen. Stat.
Ed. 2d 545 (1986) defined as "that branch of §52-352b with respect defendant's home at 56
the libel-proof plaintiff doctrine which Linden Street [*14] in Norwalk which will be
'measures the incremental harm inflicted by discussed below.
the challenged statements beyond the harm Findings and Conclusions
imposed by the rest of the publication. If that
harm is determined to be nominal or The court finds that the plaintiff has
nonexistent, statements are dismissed as non established by the probable cause standard
actionable.'" Judge Berger denied the motion the claim of negligent infliction of emotional
to strike the special defense, saying " In order distress and damages in the amount of
2019 Conn. Super. LEXIS 4362, *14
$30,0000 as pleaded in the Second Count of Deed, Plaintiff Ex.11). The purchase was
his Amended Complaint and his PJR financed by a mortgage in the amount of
Application.; and that he has not established $416,000. (Mortgage Note, Def. Ex. Y;
probable cause on his claims of intentional Mortgage Deed, Plaintiff Ex. 12.) Their initial
infliction of emotional distress (First Count), or joint equity in the property was therefore
Malicious Prosecution (Fourth Count) both of $22,000. Conn, Gen. Stat. § 52-352b ("Exempt
which require proof of intentionally false Property") provides: [*16]
statements as to which there is conflicting The following property of any natural
testimony which does not arise to probable person shall be exempt:.... (t) the
cause as defined in Dufraine v. CHRO, supra. homestead of the exemptioner to the value
The defendant testified that when Frontier of seventy- five thousand dollars, or in the
would not discuss the account with the plaintiff case of a money judgment arising out of
and he was trying to cancel the account at 4 services provided at a hospital, to the
Kellee Court, she received a telephone call value of $125,000, provided value shall be
from the defendant's wife, Carina Evans in late determined as the fair market value of the
November or early December of 2014 offering real property less the amount of any
to transfer the AT&T/ Frontier account at 4 statutory or consensual lien which
Kelle Court into Mrs. Evans' name to which encumbers it.
she had agreed, thereby causing her to
believe that account opened in 2012 was Relevant definitions are found in § 52-352a:
"gone" and that the account at 4 Kelee Court (a) "Value" means fair market value of the
later brought to her attention by Frontier was a exemptioner's equity or unencumbered
new account fraudulently [*15] opened by Mr, interest in the property....
Evans. (No finding is made as to the claim of (c) "Exempt" means, unless otherwise
defamation on the Third Count which the specified, not subject to any form of
plaintiff has removed from consideration for process or court order for the purpose of
purposes of this PJR hearing.) debt collection.
But the finding of probable cause alone does (d) "Exemptioner means the natural person
not entitle the plaintiff to the prejudgment entitled to an exemption under this section
remedy (attachment of defendant's half or section 52-352b.
interest in real property) he seeks because
Section 52- 278d(a), quoted above at page 5, (e) "Homestead" means owner-occupied
requires the court before ordering any real property, co-op, or mobile
prejudgment remedy to also determine, among manufactured home, as defined in
other things, "(3) whether the property sought subdivision (1) of section 21-64 used as a
to be subjected to the prejudgment remedy is primary residence.
exempt from execution." The only property The court finds that the home at 56 Linden
sought to be subjected to the prejudgment Street Linden Street, Norwalk Connecticut is
remedy in this case is defendant's one-half the "Homestead" of defendant Sheila Adzie
interest in the home at 56 Linden Street, and that she is entitled to a $75,000
Norwalk, Connecticut which is her residence homestead exemption applicable to her equity
together with her husband and co-owner in her half interest in that property. [*17] There
Connor Parker. They purchased the home as was no evidence of current market value or
joint tenants with right of survivorship on June current mortgage loan balance, but
30, 2016 for a price of $438,000. (Warranty
2019 Conn. Super. LEXIS 4362, *17
defendant's counsel advised the court in Each party has cited post-Shawmut Superior
preliminary remarks, "...[T]here's very little Court decisions, and those cases cite other
equity in there and the homestead exemption, cases, which go both ways on the issue of the
it's less than what the homestead exemption applicability of the exemptions of §52-352b to
would be." (TR 9/18/18, p. 4). Plaintiff did not applications for prejudgement remedies.1 For
contest that statement. The court finds that the several reasons this court follows the ruling of
value of plaintiff's equity in the property does the Supreme Court in Shawmut, and sides
not exceed the amount of her homestead with the Superior Court cases which hold the
exemption. exemptions of § 52-352b applicable to
prejudgment remedy proceedings. "It is
The plaintiff's position is that defendant's axiomatic that [a] decision of [an appellate
homestead exemption does not apply to a court] is a controlling precedent until overruled
prejudgment remedy attachment. Defendant or qualified... [S]tare decisis serve[s] the cause
cites in favor of applicability Shawmut Bank, of stability and certainty to the law - a condition
N.A. v. Valley Farms, 222 Conn. 361, 610 A.2d indispensable any well-ordered system of
652, cert, dismissed, 505 U.S. 1247, 113 S. jurisprudence." State v. Jahsim T., 165 Conn.
Ct. 28, 120 L. Ed. 2d 952 (1992) where the App. 534, 545, 139 A.3d 816 (2016). The
plaintiff creditor was seeking a prejudgment ruling of Shawmut has been brushed off
order of replevin against the defendant as [*19] "pure dicta which has not been
partnership's livestock, feed, and equipment. subject to any degree of analysis" Bonduc v.
The defendant opposed on several grounds Riches, cited in footnote 1. Although the
including the argument that the personal applicability of the exemptions to prejudgment
property sought to be replevied was exempt remedies was not the precise issue under
under Conn. Gen. Stat. § 52-352b(b) which appeal in Shawmut, the decision of that issue
exempts: "tools, books, instruments, farm
animals, and livestock feed, which are
necessary to the exemptioner in the course of
1 Cases holding the exemptions applicable to prejudgment
his or her occupation, profession, or farming
remedies include: Shockey v. Everett, Superior Court, Judicial
operation." The Supreme Court affirmed the District of Stamford-Norwalk at Stamford, Docket No. CV99-
granting of the writ of replevin on the grounds, 9173143S, 2000 WL 277181 (March 1, 2000, Lewis, J.); L.
inter-alia, that the [*18] exemptions of § 52- Suzio Asphalt Co. v. Ferreira Construction Corp., Superior
Court, judicial district of New Haven at New Haven, Docket
352b apply only to the property of natural
No. 351912 (October 19, 1993) (DeMayo, J.) (10 Conn.L.Rptr.
persons and not to the property of a 264, 265, 1993 Conn. Super. LEXIS 2750, *1; and Dunbar v.
partnership such as the defendant. In making Dunbar, Superior Court, judicial district of New London,
that ruling the court said: Docket No. 528800 (January 7, 1994) (Austin, J.) (10
Conn.L.Rptr. 587, 9 CSCR 150, 1994 Conn. Super. LEXIS 42)
We agree with the trial court and the
Cases holding the exemptions inapplicable to prejudgment
plaintiff that the exemptions to post- remedies include: Bolduc v. Riches, Superior Court, Judicial
judgment remedies, and therefore from District of Hartford, 47 Conn. Sup. 590, 821 A.2d 848
prejudgment attachment, afforded by (February 6, 2003, Booth, J.), Estate of Chapman v. Batts,
Superior Court, Judicial District of New Haven, Docket No.
General Statutes §52-352b, apply only to
CV06-5006351 (April 12, 2007, Cosgrove, J.) Sullivan v. Cyr,
"property of any natural person" under that Superior Court, Judicial District of Hartford, Docket No. CVH-
statute, and, therefore, do not apply to 7514, 2007 Conn. Super. LEXIS 1402 (June 4, 2007,
property of partnerships, like the Bentivegna, J.) 2007 WL 1705633; and Corey v. Loomis,
Superior Court, Judicial District of Middlesex, Docket No. MMX
defendants. (Emphasis added.) 222 Conn.
CV12-6007688, 2013 Conn. Super. LEXIS 311 (February 6,
at 365-366. 2013, Aurigemma, J.), 2013 WL 951199;
2019 Conn. Super. LEXIS 4362, *19
was an integral part of the chain of reasoning inapplicable to prejudgement remedy
that brought the Supreme Court to the primary applications, which, in effect, deny to a
issue of statutory exemptions only applying to defendant on a low probable cause standard
natural persons. The writ of replevin at issue statutory exemption protection which
before the court was issued as a prejudgment absolutely will be available to the defendant
remedy following a pretrial hearing. Unless the following a full trial on the merits even if the
applicability of the claimed exemption to plaintiff has proved its case by [*21] a
prejudgment remedies was first addressed, the preponderance of the evidence.
primary issue would not have been framed for ORDER
decision.
For the foregoing reasons the Plaintiff's
The cases holding the statutory exemptions Application for Prejudgment Remedy is
inapplicable to prejudgment remedy denied.
proceedings conflict with the forgoing statutory
definition of "exempt" as "not subject to any /s/ Alfred J. Jennings, Jr.
form of process or court order for the
Alfred J. Jennings, Jr.
purpose of debt collection." (Emphasis added).
In Corey v. Loomis, (cited in footnote 1) the Judge Trial Referee
court, referring to the PJR statute, Section 52-
278d, said "... [T]he statute applies to both real
and personal [*20] property and requires the End of Document
court to 'consider' the exemption...." which is a
misquote of § 52-278d which actually provides:
"If the court, upon consideration of the facts
before it, and taking into account any
defenses, counterclaims or setoffs, claims of
exemption, and claims of adequate insurance,
finds that the plaintiff has shown probable
cause that a judgment will be rendered ...."
(Emphasis added) A court hearing a
prejudgment remedy application is no more at
liberty to disregard a claim of exemption, than
it is to disregard a special defense, a
counterclaim, or a claim of adequate
insurance. In Rafferty v. Noto Bros.
Construction, LLC, 68 Conn App. 685, 693,
795 A.2d 1274 (2002) the Appellate Court held
it was reversible error for the PJR court to
disregard a counterclaim raised orally at the
probable cause hearing.
The same would apply to disregarding a
proven claim of homestead exemption.
Finally the court is troubled by the incongruity
of the cases holding the exemption statute
Preview
DOCKET NO.: MMX-CV23-5016264-S : SUPERIOR COURT : THE CONNECTICUT NOVELTY CO. : JUDICIAL DISTRICT OF MIDDLESEX DBA MALLOVES JEWELERS : v. : AT MIDDLETOWN : CHRISTINE GRAICHEN : MAY 17, 2024 NOTICE OF ADDITIONAL AUTHORITY The plaintiff has filed an additional brief, contending that “Courts in Connecticut have repeatedly rejected the argument that the homestead exemption serves as a basis to deny a PJR,” citing three unpublished Superior Court cases. But other cases have denied PJRs on this very basis—exemption. See, e.g., Evans v. Adzie, FBT-CV17-6068596, 2019 Conn. Super. LEXIS 4362 (Jan. 28, 2019) (Jennings, J.) (attached). Such decisions are respectfully more persuasive than the authorities cited by the plaintiff, because this ground for defense exists both in the prejudgment remedy statute, Conn. Gen. Stat. § 52-278d, and the civil forms issued by the Judicial Branch, e.g., JD-CV-53 (Rev. 7-01). Respectfully submitted, THE PLAINTIFF By: __/s/__Alexander T. Taubes Alexander T. Taubes 470 James Street Suite 007 New Haven, CT 06513 (203) 909-0048 alextt@gmail.com Juris No.: 437388 1 CERTIFICATION On this day of May, 2024, the foregoing was emailed to all counsel of record in the above-captioned matter. /s/Alexander T. Taubes Alexander T. Taubes 2 NOTICE OF APPLICATION FOR STATE OF CONNECTICUT COURT USE ONLY PREJUDGMENT REMEDY/CLAIM FOR SUPERIOR COURT CLPJRA CLPJRHG HEARING TO CONTEST APPLICATION www.jud.ct.gov Application Contest PJR For PJR OR CLAIM EXEMPTION Instructions To Plaintiff/Applicant Application (If Section III JD-CV-53 Rev. 7-01 Completed) C.G.S. §§ 52-278c et seq. 1.Complete section I in connection with all prejudgment remedies EXCEPT ex parte prejudgment remedies and submit to the Clerk along with your application and other required documents. 2.Upon receipt of signed order for hearing from clerk, serve this form on defendant(s) with other required documents. Section 1 — Case Information (To be completed by Plaintiff/Applicant) Geographical Court address Judicial Housing Area District Session number Amount, legal interest, or property in demand, exclusive of interest and costs is ("X" one of the following) Has a temporary restraining order been requested? Yes No Name of Case (First-named plaintiff vs. First-named defendant) Less than $2500 $2500 THROUGH $14,999.99 *CLPJRA* CLPJRA $15,000 or more See attached form JD-CV-67 for Continuation of Parties ("X" if applicable) Case type (From Judicial Branch code list) Number counts Claiming other relief in addition to or in lieu Major: Minor: of money damages Name and address of Plaintiff/Applicant (Person making application for Prejudgment Remedy) (Number, street, town and zip code) Name(s), address(es) and telephone number(s) of Defendant(s) against whom prejudgment remedy is sought (Number, street, town and zip code) (Attach additional sheet if necessary) Name and address of any third person holding property of Defendant who is to be made a garnishee by process preventing dissipation of such property Name and address of Attorney, Law Firm or Plaintiff if pro se (Number, street, town and zip code) For the Plaintiff(s) enter the Telephone number Juris number (If attorney or law firm) Signed Date signed appearance of: Section II — Notice To Defendant You have rights specified in the Connecticut General Statutes, including Chapter 903a, that you may wish to exercise concerning this application for a prejudgment remedy. These rights include the right to a hearing: (1) to object to the proposed prejudgment remedy because you have a defense to or set-off against the action or a counterclaim against the plaintiff or because the amount sought in the application for the prejudgment remedy is unreasonably high or because payment of any judgment that may be rendered against you is covered by any insurance that may be available to you; (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 you be allowed to substitute a bond for the prejudgment remedy sought; and (4) to show that the property sought to be subjected to the prejudgment remedy is exempt from such a prejudgment remedy. You may request a hearing to contest the application for a prejudgment remedy, assert any exemption or make a request concerning the posting or substitution of a bond in connection with the prejudgment remedy. The hearing may be requested by any proper motion or by completing section III below and returning this form to the superior court at the Court Address listed above. You have a right to appear and be heard at the hearing on the application to be held at the above court location on: Date Time Courtroom M. Section III — Defendant's Claim And Request For Hearing (To be completed by Defendant) I, the defendant named below, request a hearing to contest the application for prejudgment remedy, claim an exemption or request the posting or substitution of a bond. I claim: ("X" the appropriate boxes) that the amount sought in the application for prejudgment remedy is unreasonably high. a defense, counterclaim, set-off, or exemption. *CLPJRHG* CLPJRHG FOR COURT USE ONLY that any judgment that may be rendered is that I be allowed to substitute a adequately secured by insurance. bond for the prejudgment remedy. that the plaintiff be required to post a bond to secure me against any damages that may result from the prejudgment remedy. I certify that a copy of the above claim was mailed/delivered to the Plaintiff or the Plaintiff's attorney on the Date Mailed/Delivered shown below. Date copy(ies) mailed or delivered Signed (Defendant) Date signed Type or print name and address of Defendant Docket number PJR CV Name of each party served* Address at which service was made* *If necessary, attach additional sheet with names of each party served and the address at which service was made. Print Form Reset Form User Name: 12345679 Date and Time: Sunday, April 28, 2024 4:22:00PM EDT Job Number: 223012006 Document (1) 1. Evans v. Adzie Client/Matter: -None- Search Terms: Search Type: Natural Language Narrowed by: Content Type Narrowed by -None- | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2024 LexisNexis Neutral As of: April 28, 2024 8:22 PM Z Evans v. Adzie Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport January 28, 2019, Decided DOCKET NO. FBT CV17-6068596 Reporter 2019 Conn. Super. LEXIS 4362 * JOHN J. EVANS v. SHEILA ADZIE, AKA Procudural/Factual Background SHEYLA RAMOS, AKA SHEILA HERNANDEZ This action sounding in intentional infliction of Notice: THIS DECISION IS UNREPORTED emotional distress, negligent infliction of AND MAY BE SUBJECT TO FURTHER emotional distress, defamation, and malicious APPELLATE REVIEW. COUNSEL IS prosecution is commenced by former attorney CAUTIONED TO MAKE AN INDEPENDENT John J. Evans against his former office DETERMINATION OF THE STATUS OF THIS assistant, the defendant Sheila Adzie also CASE. known as Shayla Ramos arising out of an agreed arrangement entered into in April of Subsequent History: Motion denied by Evans 2012 while the defendant was in the employ of v. Adzie, 2019 Conn. Super. LEXIS 3701 the plaintiff whereby the defendant agreed to (Conn. Super. Ct., Mar. 20, 2019) open an account for internet, television and telephone cable access for the use of the Dismissed by Evans v. Adzie, 2019 Conn. plaintiff at his home in Stamford. Super. LEXIS 3926 (Conn. Super. Ct., Apr. 10, 2019) Following a four-day evidentiary hearing and review of some 25 exhibits and the Motion denied by Evans v. Adzie, 2019 Conn. memoranda of law of the parties the court Super. LEXIS 3974 (Conn. Super. Ct., June finds that there is probable cause to believe 24, 2019) that the following facts are true. Motion denied by Evans v. Adzie, 2019 Conn. The account was voluntarily opened was by Super. LEXIS 3912 (Conn. Super. Ct., July 18, the defendant with AT&T U-Verse in her name, 2019) subject to plaintiff's promise that he would pay the monthly bills on the account with his own Judges: [*1] Alfred J. Jennings, Jr., Judge credit card. The arrangement was meant to get Trial Referee. cable, TV and internet access [*2] for the plaintiff at his home without his having to put Opinion by: Alfred J. Jennings, Jr. down a deposit, since the defendant already had an AT&T account which permitted her to Opinion have an account at a second location without a deposit. The defendant arranged for the account to be opened and for the installation at Memorandum of Decision on Plaintiff's plaintiff's home. She also provided the plaintiff Application for Prejudgment Remedy (No. 161) with her date of birth and the password to 2019 Conn. Super. LEXIS 4362, *2 access the account. stating that she was the victim of identity theft in that someone had used her identity without The plaintiff closed his law office in April of her knowledge or consent to open a 2013 and the defendant left his employ to work telecommunications [*4] account in her name elsewhere several weeks later. The plaintiff and fraudulently obtained telecommunication decided in April, 2013 to move his personal services in her name at the address of 4 residence from Stamford to 4 Kellee Court in Kellee Court Norwalk, Connecticut. The police Norwalk and the defendant authorized were able to identify the plaintiff as the person switching the account to the Norwalk address, living at that address. Mr. Evans explained to where the arrangement continued without the officer the whole background of Ms. Adzie incident. In April of 2014 the plaintiff received willingly setting up the AT&T/Frontier account notification that AT&T was changing its name for his use first at his Stamford home and later on the account to Frontier Communications. at his Norwalk place of residence at 4 Kellee When the first bill from Frontier Court. The police interviewed the defendant Communications arrived on or about and advised her of plaintiff's position but she November 1, 2014 the plaintiff had a question "stood by" and confirmed her previous about the bill and called Frontier to discuss the statements which plaintiff had challenged as bill. Frontier refused to discuss the account false. She further stated to the police that with anyone but the defendant. After some plaintiff John Evans was a "complete mess" time went by without Frontier being willing to and a "toxic" person. Mr. Evans followed up discuss the account [*3] with the plaintiff he with an affidavit and a detailed letter of called and suggested that Frontier just cancel February 8, 2016 to Detective Deriu. Mr. the account. He testified that he paid the Evans was able eventually to retrieve from his December 1, 2014 bill and then left a message icloud backup a series of text messages and a text for the defendant that he was between himself and Ms. Adzie which confirm having a problem with Frontier that he couldn't his position that she had consented willingly to fix. He received no response to his messages. the opening of the account for his use and the Frontier cut off his access to the online and transfer of the account to his Norwalk address. telephone accounts he had used to make He made those emails available to the payments on the account. He states that a Stamford Police but a warrant had already Frontier representative told him that Frontier issued from the Superior [*5] Court would not accept his checks as payment authorizing his arrest. Plaintiff John Evans was because he was not the person named on the arrested on February 16, 2016 on charges of account. Consequently he made no payments identity theft in the third degree (a felony to Frontier after the December 2014 payment. offense) and larceny in the fifth degree. He and his wife continued to use the service Thereafter the police confronted the defendant without payment until Frontier shut off the with the text messages between herself and service sometime in 2015. the plaintiff which expressly confirmed her The next event that occurred was a call to the knowledge of and authorization for plaintiff to plaintiff from Officer Deriu of the Stamford use the telecommunication account in her Police department who was investigating a name including messages(s) to the plaintiff criminal complaint of identity theft filed by the wherein she had provided to him her date of defendant. The plaintiff learned that the birth, last four digits of her social security defendant had filed a complaint with the number, email address and the password to Stamford police on or about October 12, 2015 the account. Defendant took no steps to 2019 Conn. Super. LEXIS 4362, *5 recant, retract, or correct her previous To garnish the wages of the said defendant statements to the police. Mr. Evans entered an from the garnishee Berkowitz and Hanna, LLC, appearance to represent himself in criminal of 733 Summer Street, 2nd Floor, Stamford, Ct court in defense of the charges. He was 06901, as it is the agent, trustee, employer ultimately able to convince the prosecutor of and/or debtor of the defendant and has the truth of his statements and the state concealed in its possession property of the agreed to "nolle" all charges which was defendant and is indebted to her." entered before Judge White on May 29, 2018. Mr. Evans immediately asked for a dismissal There is undisputed testimony of the of the charges which the prosecution did not defendant, and the court finds that, as of her object to, and all charges were dismissed. testimony on September 26, 2018 she is a full time student in a Master's program at NYU and The plaintiff incurred expenses of $1,681.18 in was not employed at that time. (TR 9/26/18 the defense of the criminal charges. His arrest 131). The requested garnishment of her wages and [*6] prosecution were the subject of from her former employer Berkowitz & Hanna, extensive publicity, with photos of himself, in LLC is therefore moot, and cannot be granted. the local press and cable television. The The only prejudgment remedy being charges were also made known ro Frontier adjudicated is the attachment of the Communications, Inc. and the credit reporting defendant's interest in the home she owns agencies. Plaintiff alleges that the false jointly with her husband at 56 Linden Street in statements made by the defendant, and the Norwalk. resulting publicity of his arrest caused him to Applicable Law suffer extreme emotional distress, great humiliation, disgrace, mental anguish, and Conn. Gen. Stat. §52-278d, provides, with physical discomfort. respect to a hearing on a plaintiff's application for prejudgment remedy, that: Now before the court is plaintiff a Application for Prejudgment Remedy (PJR) dated (a) the defendant shall have the right to September 18, 2018 (No. 161) by which the appear and be heard at the hearing. The plaintiff seeks, to secure the sum of $30,000 hearing shall be limited to a determination (1) by an attachment on the land and buildings of (1) whether or not there [*8] is probable on Linden Street, in the town of Norwalk cause that a judgment in the amount of the known as Lot number 94 on a map entitled prejudgment remedy sought, or in an "Map of Section A, West Rocks Estate at amount greater than the amount of the Norwalk, Connecticut, scale 1" = 80ft, January, prejudgment remedy sought, taking into 1952" Samuel W. Hoyt. Jr. Co. Inc., South account any defenses, counterclaims, or Norwalk, Connecticut, certified substantially setoffs, will be rendered in the matter in correct by Harry E. Bryan, Vice President, Civil favor of the plaintiff, (2) whether payment Engineer and Surveyor. Reference to said of any judgment which may be rendered map which is on file in the office of the town against the defendant is adequately clerk in said Norwalk as map number 3560. is secured by insurance, (3) whether the hereby made for a more particular description property sought to be subjected to the and location of said premises " (Being the prejudgment remedy is exempt from home of [*7] the defendant Sheila Adzie at 56 execution, and (4) if the court finds that the Linden Street, Norwalk CT owned jointly by application for the prejudgment remedy her and her husband Connor Parker); and (2) " should be granted, whether the plaintiff 2019 Conn. Super. LEXIS 4362, *8 should be required to post a bond to from injuries arising from the legal secure the defendant against damages consequences of the plaintiff's volitional that may result from the prejudgment criminal conduct...." Id. The policy does not remedy or whether the defendant should apply here. There is no allegation of any be allowed to substitute a bond for the criminal conviction or criminal conduct of prejudgment remedy. If the court, upon the [*10] plaintiff John Evans related to the consideration of the facts before it, and allegations of his civil complaint in this case. taking into account any defenses, He was cleared of the criminal charges of counterclaims, or setoff, claims of identity theft and larceny in the arrest made by exemption, and claims of adequate complaint of the defendant. There is no insurance, finds that the plaintiff has shown allegation or evidence of any other criminal probable cause that such a judgment will misconduct on his part. be rendered in the matter in the plaintiff's favor in the amount of the prejudgment Defendant suggests that her allegedly false remedy sought, and finds that a statements to the Stamford Police Department prejudgment remedy [*9] securing the which form the basis of the tort allegations judgment should be granted, the against her in this case are protected by the prejudgment remedy applied for shall be doctrine of qualified privilege or immunity.. granted as requested or as modified by the Under the common law statements made by a court.... complaining witness to the police are subject to qualified immunity. Petyan v. Ellis, 200 Probable cause has been defined as a bona Conn. 243, 252, 510 A.2d 1337 (1986). fide belief in facts essential under the law for Defendant concedes, however, that "qualified the action and such as would lead a privilege may be defeated by showing, by a reasonable, prudent person to entertain such preponderance of the evidence, of the belief. Dufraine v. CHRO, 236 Conn. 250, 261, existence of actual malice, also known as 673 A.2d 101 (1996). constitutional malice or malice in fact." (Memorandum of Law, No. 172, P.4, citing No Answer or Special Defense(s) have yet Crismale v. Walston, 184 Conn. App. 1, 10, been filed, but the defendant has briefed (No. 194 A.3d 301 (2018).) The Memorandum of 172) four theories of defense to this PJR Law continues: Application: Wrongful Conduct Rule, Homestead Exemption, Qualified Privilege, The Second Circuit Court of Appeals and Libel Proof Plaintiff Doctrine. explained the critical difference between common law malice and an constitutional Discussion malice. Konikoff v. Prudential Insurance The wrongful conduct rule is based on the Company of America, 234 F. 22d 02, 99 public policy consideration that the court (2d Cir. 2000). "Common law malice should not lend assistance to one who seeks focuses on the Defendant's attitude compensation under the law for injuries towards the plaintiff. [*11] Constitutional resulting from his own acts when they involve malice or malice in fact focuses on a substantial violation of the law. Greenwald v. Defendant's attitude toward the truth." van Handel, 311 Conn. 370, 385, 88 A.3d 467 (Memorandum of Law, p. 4-5) (2014). "...[I]t is clear to this court that it would violate the public policy of our state to impose Given the conflicting evidence of malice or lack a duty on the defendant to protect the plaintiff thereof, or the degree of any malice, on the 2019 Conn. Super. LEXIS 4362, *11 part of the defendant in making her statements for the defendants to prevail on their special to the Stamford Police that the AT&T/ Frontier defense of incremental harm, they must prove account at 4 Kellee Court was not authorized the allegedly libelous statements caused the by her, the court finds that the defendant has plaintiff no additional injury. Yet, whether the not established probable cause that she can defendants have satisfied that burden is not for prove by a preponderance of the evidence her this court to determine at this time... suggested defense of qualified immunity, or Notwithstanding the blurring of these doctrines that she has not lost the umbrella of qualified [Libel-Proof [*13] Plaintiffs, Substantial Proof, immunity by actual malice toward the truth. and the Incremental Harm Doctrine] this court This defense, if actually pleaded as a special finds that the incremental harm doctrine has defense, will have to be determined at a full vitality under the facts of this case and is a trial on the merits. proper defense." The Libel Proof Plaintiff Doctrine stands for the In this case the only count of the Amended proposition that a plaintiff's reputation may be Complaint to which the libel-proof so badly tarnished that he cannot be further plaintiff/incremental harm defense might apply injured by allegedly false statements. See is the Third Count sounding in defamation Guccione v. Hustler Magazine, Inc., 800 F.2d against the defendant Sheila Adzie for 298, 303 (2d Cir. 1986). The doctrine has no allegedly publishing false statements about the appellate support in Connecticut but has been plaintiff to the Stamford Police, to the approved by Judge Berger in one Superior telecommunication services company, and to Court case, Allan v. The Hartford Courant, the credit reporting companies, which were Docket No. CV00-0599993S, Superior Court, published in local news reports which is the Judicial District of Hartford (March 8, 2001), only count specifically seeking reputation 2001WL291162 where the doctrine was [*12] damages as compared to emotional distress or applied under the name "incremental harm cost of defense damages. But Mr. Evans doctrine" in a defamation (libel) case against advised the court at the commencement of his the newspaper and its reporter by a plaintiff final argument on September 27, 2018 that he police officer who had been involved in the was not relying on his defamation claim (Count shooting of a fourteen year old person which Three) for purposes of his Application for had cause great controversy in the Hartford Prejudgment Remedy. It is therefore not community and had been the subject of much necessary at this point to go into the publicity. The plaintiff moved to strike the suggested defense of libel-proof plaintiff. defendants' special defense of incremental harm which the court, with reference to The fourth and final defense suggested by the Herbert v. Lando, 781.F2d 298 (2d Cir.) cert defendant in her Memorandum of Law is the denied, 476 U.S. 1182, 106 S. Ct. 2916, 91 L. Homestead Exemption under Conn. Gen. Stat. Ed. 2d 545 (1986) defined as "that branch of §52-352b with respect defendant's home at 56 the libel-proof plaintiff doctrine which Linden Street [*14] in Norwalk which will be 'measures the incremental harm inflicted by discussed below. the challenged statements beyond the harm Findings and Conclusions imposed by the rest of the publication. If that harm is determined to be nominal or The court finds that the plaintiff has nonexistent, statements are dismissed as non established by the probable cause standard actionable.'" Judge Berger denied the motion the claim of negligent infliction of emotional to strike the special defense, saying " In order distress and damages in the amount of 2019 Conn. Super. LEXIS 4362, *14 $30,0000 as pleaded in the Second Count of Deed, Plaintiff Ex.11). The purchase was his Amended Complaint and his PJR financed by a mortgage in the amount of Application.; and that he has not established $416,000. (Mortgage Note, Def. Ex. Y; probable cause on his claims of intentional Mortgage Deed, Plaintiff Ex. 12.) Their initial infliction of emotional distress (First Count), or joint equity in the property was therefore Malicious Prosecution (Fourth Count) both of $22,000. Conn, Gen. Stat. § 52-352b ("Exempt which require proof of intentionally false Property") provides: [*16] statements as to which there is conflicting The following property of any natural testimony which does not arise to probable person shall be exempt:.... (t) the cause as defined in Dufraine v. CHRO, supra. homestead of the exemptioner to the value The defendant testified that when Frontier of seventy- five thousand dollars, or in the would not discuss the account with the plaintiff case of a money judgment arising out of and he was trying to cancel the account at 4 services provided at a hospital, to the Kellee Court, she received a telephone call value of $125,000, provided value shall be from the defendant's wife, Carina Evans in late determined as the fair market value of the November or early December of 2014 offering real property less the amount of any to transfer the AT&T/ Frontier account at 4 statutory or consensual lien which Kelle Court into Mrs. Evans' name to which encumbers it. she had agreed, thereby causing her to believe that account opened in 2012 was Relevant definitions are found in § 52-352a: "gone" and that the account at 4 Kelee Court (a) "Value" means fair market value of the later brought to her attention by Frontier was a exemptioner's equity or unencumbered new account fraudulently [*15] opened by Mr, interest in the property.... Evans. (No finding is made as to the claim of (c) "Exempt" means, unless otherwise defamation on the Third Count which the specified, not subject to any form of plaintiff has removed from consideration for process or court order for the purpose of purposes of this PJR hearing.) debt collection. But the finding of probable cause alone does (d) "Exemptioner means the natural person not entitle the plaintiff to the prejudgment entitled to an exemption under this section remedy (attachment of defendant's half or section 52-352b. interest in real property) he seeks because Section 52- 278d(a), quoted above at page 5, (e) "Homestead" means owner-occupied requires the court before ordering any real property, co-op, or mobile prejudgment remedy to also determine, among manufactured home, as defined in other things, "(3) whether the property sought subdivision (1) of section 21-64 used as a to be subjected to the prejudgment remedy is primary residence. exempt from execution." The only property The court finds that the home at 56 Linden sought to be subjected to the prejudgment Street Linden Street, Norwalk Connecticut is remedy in this case is defendant's one-half the "Homestead" of defendant Sheila Adzie interest in the home at 56 Linden Street, and that she is entitled to a $75,000 Norwalk, Connecticut which is her residence homestead exemption applicable to her equity together with her husband and co-owner in her half interest in that property. [*17] There Connor Parker. They purchased the home as was no evidence of current market value or joint tenants with right of survivorship on June current mortgage loan balance, but 30, 2016 for a price of $438,000. (Warranty 2019 Conn. Super. LEXIS 4362, *17 defendant's counsel advised the court in Each party has cited post-Shawmut Superior preliminary remarks, "...[T]here's very little Court decisions, and those cases cite other equity in there and the homestead exemption, cases, which go both ways on the issue of the it's less than what the homestead exemption applicability of the exemptions of §52-352b to would be." (TR 9/18/18, p. 4). Plaintiff did not applications for prejudgement remedies.1 For contest that statement. The court finds that the several reasons this court follows the ruling of value of plaintiff's equity in the property does the Supreme Court in Shawmut, and sides not exceed the amount of her homestead with the Superior Court cases which hold the exemption. exemptions of § 52-352b applicable to prejudgment remedy proceedings. "It is The plaintiff's position is that defendant's axiomatic that [a] decision of [an appellate homestead exemption does not apply to a court] is a controlling precedent until overruled prejudgment remedy attachment. Defendant or qualified... [S]tare decisis serve[s] the cause cites in favor of applicability Shawmut Bank, of stability and certainty to the law - a condition N.A. v. Valley Farms, 222 Conn. 361, 610 A.2d indispensable any well-ordered system of 652, cert, dismissed, 505 U.S. 1247, 113 S. jurisprudence." State v. Jahsim T., 165 Conn. Ct. 28, 120 L. Ed. 2d 952 (1992) where the App. 534, 545, 139 A.3d 816 (2016). The plaintiff creditor was seeking a prejudgment ruling of Shawmut has been brushed off order of replevin against the defendant as [*19] "pure dicta which has not been partnership's livestock, feed, and equipment. subject to any degree of analysis" Bonduc v. The defendant opposed on several grounds Riches, cited in footnote 1. Although the including the argument that the personal applicability of the exemptions to prejudgment property sought to be replevied was exempt remedies was not the precise issue under under Conn. Gen. Stat. § 52-352b(b) which appeal in Shawmut, the decision of that issue exempts: "tools, books, instruments, farm animals, and livestock feed, which are necessary to the exemptioner in the course of 1 Cases holding the exemptions applicable to prejudgment his or her occupation, profession, or farming remedies include: Shockey v. Everett, Superior Court, Judicial operation." The Supreme Court affirmed the District of Stamford-Norwalk at Stamford, Docket No. CV99- granting of the writ of replevin on the grounds, 9173143S, 2000 WL 277181 (March 1, 2000, Lewis, J.); L. inter-alia, that the [*18] exemptions of § 52- Suzio Asphalt Co. v. Ferreira Construction Corp., Superior Court, judicial district of New Haven at New Haven, Docket 352b apply only to the property of natural No. 351912 (October 19, 1993) (DeMayo, J.) (10 Conn.L.Rptr. persons and not to the property of a 264, 265, 1993 Conn. Super. LEXIS 2750, *1; and Dunbar v. partnership such as the defendant. In making Dunbar, Superior Court, judicial district of New London, that ruling the court said: Docket No. 528800 (January 7, 1994) (Austin, J.) (10 Conn.L.Rptr. 587, 9 CSCR 150, 1994 Conn. Super. LEXIS 42) We agree with the trial court and the Cases holding the exemptions inapplicable to prejudgment plaintiff that the exemptions to post- remedies include: Bolduc v. Riches, Superior Court, Judicial judgment remedies, and therefore from District of Hartford, 47 Conn. Sup. 590, 821 A.2d 848 prejudgment attachment, afforded by (February 6, 2003, Booth, J.), Estate of Chapman v. Batts, Superior Court, Judicial District of New Haven, Docket No. General Statutes §52-352b, apply only to CV06-5006351 (April 12, 2007, Cosgrove, J.) Sullivan v. Cyr, "property of any natural person" under that Superior Court, Judicial District of Hartford, Docket No. CVH- statute, and, therefore, do not apply to 7514, 2007 Conn. Super. LEXIS 1402 (June 4, 2007, property of partnerships, like the Bentivegna, J.) 2007 WL 1705633; and Corey v. Loomis, Superior Court, Judicial District of Middlesex, Docket No. MMX defendants. (Emphasis added.) 222 Conn. CV12-6007688, 2013 Conn. Super. LEXIS 311 (February 6, at 365-366. 2013, Aurigemma, J.), 2013 WL 951199; 2019 Conn. Super. LEXIS 4362, *19 was an integral part of the chain of reasoning inapplicable to prejudgement remedy that brought the Supreme Court to the primary applications, which, in effect, deny to a issue of statutory exemptions only applying to defendant on a low probable cause standard natural persons. The writ of replevin at issue statutory exemption protection which before the court was issued as a prejudgment absolutely will be available to the defendant remedy following a pretrial hearing. Unless the following a full trial on the merits even if the applicability of the claimed exemption to plaintiff has proved its case by [*21] a prejudgment remedies was first addressed, the preponderance of the evidence. primary issue would not have been framed for ORDER decision. For the foregoing reasons the Plaintiff's The cases holding the statutory exemptions Application for Prejudgment Remedy is inapplicable to prejudgment remedy denied. proceedings conflict with the forgoing statutory definition of "exempt" as "not subject to any /s/ Alfred J. Jennings, Jr. form of process or court order for the Alfred J. Jennings, Jr. purpose of debt collection." (Emphasis added). In Corey v. Loomis, (cited in footnote 1) the Judge Trial Referee court, referring to the PJR statute, Section 52- 278d, said "... [T]he statute applies to both real and personal [*20] property and requires the End of Document court to 'consider' the exemption...." which is a misquote of § 52-278d which actually provides: "If the court, upon consideration of the facts before it, and taking into account any defenses, counterclaims or setoffs, claims of exemption, and claims of adequate insurance, finds that the plaintiff has shown probable cause that a judgment will be rendered ...." (Emphasis added) A court hearing a prejudgment remedy application is no more at liberty to disregard a claim of exemption, than it is to disregard a special defense, a counterclaim, or a claim of adequate insurance. In Rafferty v. Noto Bros. Construction, LLC, 68 Conn App. 685, 693, 795 A.2d 1274 (2002) the Appellate Court held it was reversible error for the PJR court to disregard a counterclaim raised orally at the probable cause hearing. The same would apply to disregarding a proven claim of homestead exemption. Finally the court is troubled by the incongruity of the cases holding the exemption statute