Heuschkel v. Thrower

Patrice HEUSCHKEL, Co-Conservator of the Estate of Diane Connolly et al. v. Hollis A. THROWER

No. HHBCV186043908S

Superior Court of Connecticut, Judicial District of New Britain, New Britain

February 1, 2019

UNPUBLISHED OPINION

John D. Moore, J.

I. Introduction

The original plaintiffs, Patrice Heuschkel and Meegan Martin each as co-conservator of the estate of Diane Connolly, filed an application for a prejudgment remedy (# 106) against the defendant, Hollis A. Thrower on June 25, 2018. The application sought a prejudgment remedy in the amount of $35 000. Heuschkel executed an affidavit in support of the application for a prejudgment remedy. The court presided over an evidentiary hearing on this application on November 6 2018. During closing argument, the plaintiffs’ counsel reduced the plaintiffs’ demand for prejudgment remedy to $15, 000. For the reasons set forth below, the court denies the application for a prejudgment remedy.

II. Procedural Background

The operative complaint, for purposes of this application, is the amended complaint of May 29, 2018 (# 101). The operative complaint sounds in two counts: breach of fiduciary duty and statutory theft.

The operative complaint alleges the following facts. Heuschkel and Martin are the co-conservators of the Connolly’s estate, having been appointed by the Bristol Probate Court on August 7, 2017. The two plaintiffs and the defendant Thrower are Connolly’s children. Prior to the plaintiffs’ appointment as co-conservators of Connolly’s estate, Thrower was in a position of trust vis-a-vis Connolly by means of a power of attorney dated July 26, 2016 and because Thrower and Connolly were joint tenants on one or more bank accounts. Thrower’s positions of trust were meant to be performed by Thrower as a fiduciary for the convenience of Connolly and not for Thrower’s benefit. Thrower owed Connolly a fiduciary duty. Thrower withdrew funds from Connolly’s accounts with First Bristol Credit Union and Santander Bank. Thrower took possession of Connolly’s federal tax refund the 2016 tax year. Thrower took possession of a distribution check in the approximate amount of $10, 000. The amounts taken by Thrower total in excess of $45, 000. Connolly did not know of and did not consent to Thrower’s takings of these funds. Thrower intended to deprive Connolly of the use of these funds.

The plaintiffs further allege that Thrower breached her fiduciary duty to Connolly and that the takings alleged above constitute civil theft.

At the beginning of this hearing, the plaintiffs’ counsel informed the court that Heuschkel had resigned from her position as conservator of the Connolly’s estate on October 22, 2018. The plaintiffs’ counsel also told the court that he had believed, as it turned out, incorrectly, that his office, prior to the hearing, had filed a withdrawal of Heuschkel as a plaintiff in this case. The plaintiffs’ counsel promised the court that he would file such a withdrawal in the near future. On November 28, 2018, the plaintiffs’ counsel filed a request for leave to amend the complaint in order to remove Heuschkel as a party plaintiff. The defendant did not object within fifteen days. Pursuant to the operation of Practice Book § 10-60(a)(3), the defendant has been deemed to have consented to the removal of Heuschkel as a plaintiff. Therefore, Heuschkel, as an alleged co-conservator of Connolly’s estate, while still listed as a plaintiff at the time of the hearing, is no longer a plaintiff in this case. The court will, however, refer to the plaintiffs in the plural throughout this memorandum of decision because Heuschkel was a plaintiff at the time of the hearing.

III. Legal Discussion

A. Prejudgment Remedies

General Statutes § § 52-278a through 52-278n govern prejudgment remedies. Section 52-278a(d) defines "prejudgment remedy" in relevant part 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 ..." Section 52-278a(e) defines "property" as "any present or future interest in real or personal property, goods, chattels or chooses in action, whether such is vested or contingent." Once the plaintiff files a prejudgment remedy application and complies with other statutory requirements, "[t]he defendant shall have the right to appear and be heard at [a] hearing." General Statutes § 52-278d(a). One critical statutory prerequisite is that the application be accompanied by "[a]n affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ..." General Statutes § 52-278c(a)(2).

Granting a prejudgment remedy requires a finding of probable cause. "A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ..." (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2008); accord General Statutes § 52-278d(a) ("[t]he [hearing on prejudgment remedy application] shall be limited to a determination of (1) whether or not there is probable cause that a judgment ... will be rendered in the matter in favor of the plaintiff").^[1] Essentially, "[t]he trial court has broad discretion to determine the plaintiff’s probable success at a trial on the merits of its case." (Internal quotation marks omitted.) CC Cromwell, Ltd. Partnership v. Adames, 124 Conn.App. 191, 194, 3 A.3d 1041 (2010).

"[A] hearing in probable cause is not intended to be a full scale trial on the merits of the [moving party’s] claim. The [moving party] does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim ... The court’s role in such a hearing is to determine probable success by weighing probabilities." (Internal quotation marks omitted.) Spilke v. Spilke, 116 Conn.App. 590, 594 n.6, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).

"The legal idea of probable cause is 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 ... Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." (Internal quotation marks omitted.) Spilke v. Spilke, supra, 116 Conn.App. 594 n.6. Thus, "the law is clear that the standard of proof for a prejudgment remedy is lower than the standard that a plaintiff must meet to prevail at trial." ASPIC, LLC v. Poitier, 179 Conn.App. 631, 642, 181 A.3d 593 (2018). "[A]lthough the plaintiff does not have to prove its case by clear and convincing evidence [or a fair preponderance of the evidence or other heightened standard of proof] at the prejudgment remedy hearing, it, nonetheless, must present sufficient evidence to lead the court to conclude that it could do so at trial." Id., 643-44.

"[A] finding [of probable damages] is an integral part of the probable cause determination." Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 694, 795 A.2d 1274 (2002). "[I]n an application for a prejudgment remedy, the amount of damages need not be determined with mathematical precision ... A fair and reasonable estimate of the likely potential damages is sufficient to support the entry of a prejudgment attachment ... Nevertheless, the plaintiff bears the burden of presenting evidence which affords a reasonable basis for measuring her loss." (Citations omitted; internal quotation marks omitted.) Id., 693; see also J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 339, 71 A.3d 492 (2013) (court must also make probable cause determination as to amount of remedy sought and evidence must simply be sufficient for court to make educated prediction as to probable amount).

"At a probable cause hearing on a prejudgment remedy, a trial court may properly consider all evidence presented, including testimony of witnesses, documentary evidence, and affidavits." Fleet Bank of Connecticut v. Dowling, 28 Conn.App. 221, 225, 610 A.2d 707 (1992), appeal dismissed, 225 Conn. 447, 623 A.2d 1005 (1993). "[I]t is well settled that, in determining whether to grant a prejudgment remedy, the trial court must evaluate both parties’ evidence as well as any defenses, counterclaims and setoffs ... Such consideration is significant because a valid defense has the ability to defeat a finding of probable cause." (Citation omitted.) TES Franchising, LLC v. Feldman, supra, 286 Conn. 141.

In the present case, the plaintiffs allege breach of fiduciary duty in count one and civil theft in count two. Based on all evidence and any defenses, counterclaims or setoffs presented at the hearing, to find that a prejudgment remedy securing the judgment should be granted, the court must determine whether there is probable cause to conclude that judgment in the amount of $15, 000 or more will be rendered in favor of the plaintiff at trial.

B. Breach of Fiduciary Duty

"The law does not provide a bright line test for determining whether a fiduciary...