ASPIC, LLC v. Poitier ( 2018 )

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ASPIC, LLC v. BRACK G. POITIER
(AC 39301)
Alvord, Bright and Sullivan, Js.
Syllabus
The defendant, a general partner in four limited partnerships, appealed to
this court from an order of the trial court granting the plaintiff’s applica-
tion for a prejudgment remedy. The plaintiff had brought an action
seeking to recover, inter alia, monetary damages from the defendant
for default on certain promissory notes that had been executed by
H, the managing partner of the limited partnerships. The defendant’s
partnership agreements provided that each general partner had unlim-
ited personal liability for all obligations of the partnerships. In response
to the plaintiff’s application for a prejudgment remedy, the defendant
had filed special defenses, alleging, inter alia, that H had breached
fiduciary duties to the defendant and the limited partnerships. Following
a hearing, the trial court noted that it did not have sufficient information
to determine the ultimate strength of the defendant’s breach of fiduciary
duty defense and granted the plaintiff’s application for a prejudgment
remedy in the amount of $1 million. On appeal, the defendant claimed,
inter alia, that the trial court erred in awarding the plaintiff the prejudg-
ment remedy because he specifically pleaded, inter alia, a breach of
fiduciary duty defense, which required the court to shift the burden to
the plaintiff to establish fair dealing. Held that the trial court committed
clear error in granting the plaintiff’s application for a prejudgment rem-
edy: where, as here, the defendant raised a breach of fiduciary duty
defense and the court found that H owed a fiduciary duty to the defendant
and the limited partnerships, the plaintiff had the burden at the prejudg-
ment remedy hearing to establish probable cause, and not by clear and
convincing evidence, that it could prove the fairness of the transactions,
namely, the plaintiff had to present evidence to establish probable cause
to believe that it would be successful on the merits of its cause of action
and that it had engaged in fair dealing with respect to the transactions
at issue, and the trial court then was required to assess whether such
probable cause existed before granting a prejudgment remedy; more-
over, although the court made the requisite finding of probable cause
to sustain the merits of the underlying action before taking into consider-
ation the defense of breach of fiduciary duty, it, thereafter, did not make
the requisite finding that there was probable cause to believe that the
plaintiff would overcome that defense by demonstrating that it had
engaged in fair dealing, as the court’s finding that it could not make
any prediction regarding the fiduciary duty defense, without more,
should have led to a conclusion that the plaintiff had failed to meet its
burden to establish probable cause that it could prove the fairness of the
transactions and should have resulted in the denial of the prejudgment
remedy, and the court, by granting the prejudgment remedy in the
absence of any finding that the plaintiff had met its burden, improperly
placed the burden of proving the unfairness of the transactions on
the defendant.
Argued November 28, 2017—officially released February 13, 2018
Procedural History
Action to collect on promissory notes, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven, where the plaintiff served the defen-
dant with notice of an ex parte prejudgment remedy;
thereafter, the court, Hon. Howard F. Zoarski, judge
trial referee, granted the defendant’s motion to dissolve
the prejudgment remedy; subsequently, the plaintiff
filed an application for a prejudgment remedy; there-
after, the court, Ecker, J., granted the plaintiff’s applica-
tion for a prejudgment remedy, and the defendant
appealed to this court. Reversed; further proceedings.
Mark A. Rosenblum, with whom was Michael D.
Blumberg, for the appellant (defendant).
Timothy A. Diemand, with whom were Jeffrey R.
Babbin and, on the brief, Michael Menapace, for the
appellee (plaintiff).
Opinion
BRIGHT, J. The defendant, Brack G. Poitier, appeals
from the judgment of the trial court granting the pre-
judgment remedy application filed by the plaintiff,
ASPIC, LLC. The defendant claims that the trial court
erred in awarding the plaintiff a $1 million prejudgment
remedy because he specifically had pleaded, inter alia,
a defense of breach of fiduciary duties, which required
the court to shift the burden to the plaintiff to establish
fair dealing, and the court failed to do so. He also claims
that even if the court appears to have shifted the burden,
the record was devoid of evidence to demonstrate fair
dealing. Finally, the defendant claims that the trial court
failed to make any finding that the plaintiff had met its
burden to show that there was probable cause that it
would prevail in establishing that the transactions at
issue were the product of fair dealing. We agree with the
defendant and reverse the judgment of the trial court.
The following facts, as ascertained from the record,
reasonably could have been found by the trial court.1
The plaintiff is a single member limited liability com-
pany, whose sole member is Municipal Capital Appreci-
ation Partners III, L.P. (Muni). The defendant is a
general partner in four limited partnerships, GAB Hill
Limited Partnership, BHP Limited Partnership, WCH
Limited Partnership, and Renaissance Limited Partner-
ship. These partnerships collectively are known as the
Court Hill Partnerships (Court Hill). The partnership
agreements provide that each general partner has
unlimited personal liability for all obligations of the
partnerships. Court Hill owns properties that served
low income individuals in the New Haven area. In addi-
tion to the defendant, George Bumbray and Wendell C.
Harp2 also are general partners in Court Hill, with Harp
having been appointed as the managing partner. Harp’s
company, Renaissance Management Company, Inc.
(Renaissance), acts as the managing agent for all of the
properties owned by Court Hill.
On December 24, 2008, Harp, on behalf of Court Hill,
signed an amended and restated promissory note in the
amount of $2,039,763 in substitution for an August, 2008
promissory note.3 The note purported to memorialize
Court Hill’s debt for ‘‘operating expenses as of Novem-
ber 30, 2008, plus accrued interest’’ by entering into an
‘‘amended and restated promissory note’’ with Renais-
sance for that amount. Harp endorsed this note four
times, once for each of the Court Hill member partner-
ships. Also on December 24, 2008, Harp, on behalf of
Court Hill, then entered into an ‘‘amended and restated
promissory note,’’ in the amount of $817,692, with Harp,
individually. This note also was for ‘‘operating expenses
as of November 30, 2008, plus accrued interest thereon.’’
Harp also endorsed this note four times, once for each
of the Court Hill member partnerships.4
On December 30, 2008, Harp, on behalf of himself
and Renaissance, executed a loan agreement and a $1.5
million promissory note with Muni (Muni note). The
loan agreement provided in part that $695,963.94 of the
loan would be advanced to Harp and Renaissance ‘‘to be
used by [Harp and Renaissance] to repay the promissory
note made by [Muni] to Harp,’’ and that proceeds from
this loan also were to be used to pay federal, state,
and local tax liabilities of Harp and/or Renaissance.
Schedule 7(f) of the loan agreement contains, inter alia,
a listing of the tax obligations of Renaissance: $950,000
to the Department of Revenue Services; $732,000 to
the Internal Revenue Service; and $3700 to the city of
New Haven.
Harp, Renaissance, and Muni also entered into a
‘‘pledge and security agreement’’ on December 30, 2008,
whereby Renaissance and Harp pledged as collateral
for the Muni note their interests in and rights under the
Court Hill notes. Additionally, on April 1, 2009, Harp,
Renaissance, and Muni entered into a ‘‘first amendment
to pledge and security agreement’’ (amended security
agreement), which amended the December 30, 2008
pledge and security agreement to include a collateral
pledge of two additional notes payable by Court Hill
(2009 advance notes), one in favor of Renaissance in
the amount of $251,010 for operating expenses between
December 1, 2008, and February 28, 2009, and one in
favor of Harp in the amount of $13,572, also for
operating expenses during that same period.
The entire principal balance of the Muni note was
due and payable on December 31, 2010, but no payment
ever was made. The note is in default.
In light of the default on the Muni note and the
amended security agreement, Muni held a public sale
of the collateral on January 8, 2014, at which it was the
highest bidder. Muni thereafter transferred legal title
of the collateral to the plaintiff, which now seeks to
enforce the Court Hill notes and the 2009 advance notes
against the defendant, a general partner in Court Hill.
On the basis of the foregoing, the plaintiff, in an
application filed on December 10, 2015, sought a pre-
judgment remedy against the defendant in the amount
of $3 million. The defendant raised the following
amended special defenses: (1) the Court Hill collateral
notes are void for lack of consideration; (2) the Court
Hill collateral notes were procured by fraud; (3) to the
extent that the defendant can be held liable, he is liable
only for the amounts on the Court Hill collateral notes;
(4) the plaintiff has accepted payment for the sums due;
(5) any and all obligations to pay the Court Hill collateral
notes have been assumed by third parties; (6) the plain-
tiff is barred from recovery by unclean hands; (7) the
plaintiff is barred from recovery by virtue of Harp’s
breach of his fiduciary duties to Court Hill and the
defendant; and (8) the plaintiff is barred from recovery
by virtue of Renaissance’s breach of its fiduciary duties
to Court Hill and the defendant.5
Following a hearing, the court issued its ruling on
the plaintiff’s application on June 7, 2016. The court
first addressed the evidence presented in support of
the plaintiff’s allegations and found that the plaintiff
had established probable cause to sustain the validity
of its claim on the promissory notes at issue. The court
then addressed all of the defendant’s defenses, except
his breach of fiduciary duty claims, and held that none
of them were meritorious at that time.
The court then turned to the defendant’s breach of
fiduciary duty defense and made the following findings
relevant to this appeal. ‘‘The nature and chronology of
the underlying loan transactions raise questions about
whether Harp’s conduct in connection with those loans
[was] consistent with his fiduciary duties to [the defen-
dant]. . . . There is no reason to believe, on the present
state of the record, that [the defendant] was aware of
any aspect of the [Muni] loan or the associated Court
Hill notes—all of the documentation was signed on
behalf of the Court Hill partnerships by Harp alone.’’
(Citations omitted.)
The court then noted that it did not have sufficient
information to determine the ultimate strength of the
breach of fiduciary duty defense and noted several
unanswered questions including, ‘‘[w]hether the puta-
tive debts to Harp and Renaissance, underlying the
Court Hill notes at issue here, were actually owed by
the Court Hill partnerships to Harp and/or Renaissance
at the time the Court Hill notes were issued; whether
Harp had anything to do, directly or indirectly, explicitly
or implicitly, with [the defendant’s] current predica-
ment as the lone obligor from whom payment is being
sought, and if so, whether Harp’s acts or omissions in
that regard breached his fiduciary duties to [the defen-
dant]; and whether the various loans and purchase
transactions spanning the years between 2008 and 2012
involving Harp, [Muni] and the various [Muni] affiliates
have resulted in financial consequences that were fore-
seeably disadvantageous or unequal among Harp’s part-
ners, and cannot be squared with Harp’s fiduciary duties
to his partners and partnerships.’’
In light of these questions, the court stated that it
had ‘‘no idea, on this record, about [the defendant’s]
role in any of the underlying business activity involving
[Muni], nor do we know how the extensive transactions
between Harp and [Muni] may have interacted, in whole
or in part, with other transactions between or among
the Court Hill partners, including [the defendant].’’ After
noting that there still may be other questions that need
to be resolved before the merits of the case could be
decided, the court stated that ‘‘[t]he important point is
that, in the court’s mind, too little is known presently
for any prediction to be made regarding the ultimate
fate of the fiduciary duty defense. . . . The current
record does not reveal whether the fiduciary duty
defense has merit. The only certainty at this time, based
upon the limited facts known to the court, is that legiti-
mate questions have been raised under the circum-
stances.’’
The court concluded by granting the plaintiff’s appli-
cation, but only for $1 million, rather than the $3 million
requested. The court did not explain how it arrived
at this number other than to say that ‘‘[t]his amount
represents the court’s best effort, on the present record,
to account for all of the factors discussed above.’’ The
defendant now appeals.
On appeal, the defendant argues that ‘‘in its applica-
tion for a prejudgment remedy, [the plaintiff] was obli-
gated to prove that there is probable cause to believe
that [it] can establish, by clear and convincing evidence
at trial, that the transactions at issue were fair. Indeed,
in considering whether there is the requisite degree of
probable cause . . . the trial court must have evalu-
ated any and all claims and defenses in light of this
higher standard proof.’’ (Emphasis in original.) The
defendant argues that the trial court’s decision demon-
strates that the court did not find probable cause under
this heightened standard, and, in fact, that it specifically
did not find probable cause. He also argues that there
was no evidence in the record to demonstrate fair
dealing.
In response, the plaintiff argues: ‘‘After conducting
a full hearing and reviewing extensive briefs, the trial
court issued [an] attachment, in an amount less than
one-third of what [the] plaintiff had requested. Although
he did not present any evidence in support of [his]
breach of fiduciary duty and failure of consideration
defenses . . . [the defendant] claims in this appeal that
the attachment should be set aside because the court
did not impose upon [the] plaintiff the burden of dis-
proving [the defendant’s] defenses.’’ The plaintiff con-
tends that the court’s decision was not clear error
regardless of who had the burden at the hearing. After
fully considering the record in this case, we agree with
the defendant that the court’s written decision demon-
strates that it did not find probable cause to believe
that the plaintiff could meet its shifted burden of proof
with regard to the breach of fiduciary duty defense.
Accordingly, we find clear error.
‘‘A prejudgment remedy means any remedy or combi-
nation 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 . . . .
General Statutes § 52-278a (d). 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
setoffs, will be rendered in the matter in favor of the
plaintiff . . . . General Statutes § 52-278d (a) (1).
. . .
‘‘As for [the] standard of review [on appeal], [an
appellate] court’s role on review of the granting of a
prejudgment remedy is very circumscribed. . . . In its
determination of probable cause, the trial court is
vested with broad discretion which is not to be over-
ruled in the absence of clear error. . . . In the absence
of clear error, [a reviewing] court should not overrule
the thoughtful decision of the trial court, which has
had an opportunity to assess the legal issues which may
be raised and to weigh the credibility of at least some
of the witnesses.’’ (Emphasis added; internal quotation
marks omitted.) Landmark Investment Group, LLC v.
Chung Family Realty Partnership, LLC, 137 Conn.
App. 359, 369–70, 48 A.3d 705, cert. denied, 307 Conn.
916, 54 A.3d 180 (2012). ‘‘We will not upset a prejudg-
ment remedy order in the absence of clear error . . .
viewing the evidence in the light most favorable to the
plaintiff.’’ (Citation omitted.) J.E. Robert Co. v. Signa-
ture Properties, LLC, 309 Conn. 307, 339, 71 A.3d 492
(2013).
‘‘Section 52-278d (a) explicitly requires that a trial
court’s determination of probable cause in granting a
prejudgment remedy include the court’s ‘taking into
account any defenses, counterclaims or [setoffs]
. . . .’ ’’ (Emphasis omitted.) TES Franchising, LLC
v. Feldman, 286 Conn. 132, 141, 943 A.2d 406 (2008).
‘‘Therefore, it 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 consid-
eration is significant because a valid defense has the
ability to defeat a finding of probable cause.’’ (Citation
omitted; emphasis added.) Id.; see also Augeri v. C. F.
Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977)
(‘‘at a prejudgment remedy hearing a good defense . . .
will be enough to show that there is no ‘probable cause
that judgment will be rendered in the matter in favor
of the plaintiff’ ’’).
In the present case, the defendant contends that,
because it raised a breach of fiduciary duty defense,
and the court found that Harp owed a fiduciary duty
to the defendant and Court Hill, and because the court
is required by § 52-278d (a) to consider probable cause
in light of this defense before granting a prejudgment
remedy, the plaintiff was required to establish probable
cause that the dealings underlying its cause of action
were fair.6 He contends that the court’s ultimate conclu-
sions that it ‘‘[did] not have sufficient information . . .
to assess the ultimate strength of [the] . . . fiduciary
duty defense’’ and could not make ‘‘any prediction . . .
regarding the ultimate fate of the fiduciary duty
defense’’ demonstrate that the court committed clear
error by issuing a prejudgment remedy when it did not
find probable cause to believe that the plaintiff would
be successful in meeting its shifted burden of proof
on the breach of fiduciary duty defense. Furthermore,
during oral argument before this court, the defendant
repeatedly argued that the plaintiff could meet its bur-
den at the prejudgment remedy hearing only by produc-
ing clear and convincing evidence of fair dealing. We
agree with the defendant’s conclusion, but not its repre-
sentations as to the plaintiff’s burden of proof on an
application for a prejudgment remedy.
The defendant correctly points out that when a defen-
dant asserts a defense of breach of fiduciary duty, it
bears the burden of proving the existence of a relation-
ship from which the fiduciary duty arises. ‘‘Once a [fidu-
ciary] relationship is found to exist, the burden of
proving fair dealing properly shifts to the fiduciary. . . .
This means that the plaintiff had the burden to prove
that [it] had dealt fairly with the [defendant].’’ (Citation
omitted; internal quotation marks omitted.) Konover
Development Corp. v. Zeller, 228 Conn. 206, 219, 635
A.2d 798 (1994). ‘‘Furthermore, the standard of proof
for establishing fair dealing is not the ordinary standard
of proof of fair preponderance of the evidence, but
requires proof either by clear and convincing evidence,
clear and satisfactory evidence or clear, convincing and
unequivocal evidence.’’ (Internal quotation marks omit-
ted.) Id., 229–30.
Here, as the court found, and the parties do not dis-
pute, Harp owed a fiduciary duty to Court Hill and the
defendant; it also is undisputed that the plaintiff stands
in the shoes of Harp and, therefore, has the burden of
proving the fairness of the transactions between Harp,
Renaissance, and Court Hill. See footnote 6 of this opin-
ion. We, therefore, agree with the defendant that the
plaintiff had the burden at the prejudgment remedy
hearing to establish probable cause that it could prove
the fairness of the transactions, just as it had the burden
to establish probable cause that it could prove the other
essential elements of its claims. Where we disagree
with the defendant, however, is in his assertion at oral
argument that the plaintiff was obligated at the prejudg-
ment remedy stage to prove the fairness of the transac-
tions by clear and convincing evidence. Although that
is the standard of proof that the plaintiff must meet at
trial, 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. See generally
Landmark Investment Group, LLC v. Chung Family
Realty Partnership, LLC, supra, 137 Conn. App. 370.
For example, although the usual civil burden a plain-
tiff must meet at trial is proof by a preponderance of
the evidence, that is not the standard for the granting of
a prejudgment remedy. The standard for a prejudgment
remedy is instead the lower probable cause standard.
See id. (‘‘[p]roof of probable cause as a condition of
obtaining a prejudgment remedy is not as demanding as
proof by a fair preponderance of the evidence’’ [internal
quotation marks omitted]). We see no reason why that
same standard should not similarly apply in a case
where the plaintiff has to meet a higher burden of proof,
for example, clear and convincing evidence, at trial.
Nevertheless, a trial court should consider the requi-
site burden that the plaintiff must prove at trial when
determining whether the plaintiff has demonstrated
probable cause. As our Supreme Court has stated,
‘‘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 man of ordinary caution, pru-
dence and judgment, under the circumstances, in enter-
taining it.’’ (Emphasis in original; internal quotation
marks omitted.) Three S. Development Co. v. Santore,
193 Conn. 174, 175, 474 A.2d 795 (1984). The burden of
proof the plaintiff faces at trial necessarily will affect
how the trial court views whether there is a bona fide
reason to believe the plaintiff could prevail. Where the
plaintiff’s burden at trial is proof by clear and convinc-
ing evidence, the task for the trial court in ruling on a
prejudgment remedy is to determine whether, in the
exercise of ordinary caution, prudence and judgment,
it believes, based on the evidence presented, that the
plaintiff can meet that burden at trial. Put another way,
although the plaintiff does not have to prove its case
by clear and convincing evidence at the prejudgment
remedy hearing, it, nonetheless, must present sufficient
evidence to lead the court to conclude that it could do
so at trial.7 See Landmark Investment Group, LLC v.
Chung Family Realty Partnership, LLC, supra, 137
Conn. App. 370 (‘‘the trial court’s function is to deter-
mine whether there is probable cause to believe that a
judgment will be rendered in favor of the plaintiff in a
trial on the merits’’ [internal quotation marks omitted]).
Here, the court did not conduct such an analysis. In
fact, it does not appear that the court placed any burden
whatsoever on the plaintiff to prove, by any standard,
that there was probable cause to believe that the trans-
actions at issue were conducted fairly. The only finding
of probable cause made by the court was its conclusion
‘‘that there is probable cause to sustain the validity of
[the] plaintiff’s claim on the promissory notes at issue.
. . . They are in default, all conditions precedent have
been satisfied or waived, and [the] plaintiff is entitled
to obtain payment absent a valid defense.’’ (Empha-
sis added.)
After rejecting the defendant’s other defenses as lack-
ing merit, the court went on to explain: ‘‘The breach of
fiduciary [duty] defense is not a trivial one, and will
require further litigation before its merits can be
assessed in the full light of day. The nature and chronol-
ogy of the underlying loan transactions raise questions
about whether Harp’s conduct . . . [was] consistent
with his fiduciary duties to [the defendant]. . . . There
is no reason to believe, on the present state of the
record, that [the defendant] was aware of any aspect
of the [Muni] loan or the associated Court Hill notes
. . . .’’ (Citation omitted.) The court then stated:
‘‘Again, the court does not have sufficient information
at this point to assess the ultimate strength of [the
defendant’s] breach of fiduciary duty defense. . . . The
court also has no idea, on this record, about [the defen-
dant’s] role in any of the underlying business activity
involving [Muni], nor do we know how the extensive
transactions between Harp and [Muni] may have inter-
acted, in whole or in part, with other transactions
between or among the Court Hill partners, including
[the defendant]. . . . The important point is that, in
the court’s mind, too little is known presently for any
prediction to be made regarding the ultimate fate of
the fiduciary duty defense. . . . The only certainty at
this time, based on the limited facts known to the court,
is that legitimate questions have been raised under the
circumstances.’’
From the court’s discussion, it is clear that the court
made no finding that the plaintiff had established proba-
ble cause as to the fairness of the transactions at issue.
It merely stated that it could not make ‘‘any prediction
. . . regarding the ultimate fate of the fiduciary duty
defense.’’ Such a finding, without more, should have
led to a conclusion that the plaintiff had failed to meet
its burden, and should have resulted in the denial of
the prejudgment remedy. Instead, by granting the pre-
judgment remedy in the absence of any finding that the
plaintiff had met its burden, it appears that the court
improperly placed the burden of proving the unfairness
of the transactions on the defendant.
The plaintiff argues that the trial court clearly consid-
ered the breach of fiduciary duty defense in its decision
because that was the only basis for reducing the plain-
tiff’s prejudgment remedy from the $3 million it
requested to $1 million. There is no question that the
court’s concerns about whether Harp violated his fidu-
ciary duty to the defendant affected the size of the
prejudgment remedy awarded. In fact, the court stated
that the ‘‘amount [of the prejudgment remedy] repre-
sents the court’s best effort, on the present record, to
account for all of the factors discussed above.’’ The
problem is that a prejudgment remedy in any amount
required that the plaintiff establish probable cause that
it could prove that the transactions were fair and
thereby defeat the defendant’s breach of fiduciary duty
defense. Yet, the trial court made no such finding.
Instead, the court found that the breach of fiduciary
duty defense was not trivial, raised several unanswered
questions, and left the court with an inability to make
any prediction as to the outcome of the defense. Such
findings are contrary to a conclusion that a party has
met its burden to establish probable cause.
The plaintiff also argues that there was sufficient
evidence in the record to support a finding that it met
any burden it might have had to establish probable
cause for the fairness of the transactions. In particular,
the plaintiff points to the testimony of Matthew Harp,
the current president of Renaissance. Matthew Harp
testified to his understanding that the defendant had
been kept informed of the basis for the Court Hill notes
and had been provided with documents regarding Court
Hill’s obligations to Renaissance. This argument cannot
be squared though with the court’s specific finding that
‘‘[t]here is no reason to believe, on the present state of
the record, that [the defendant] was aware of any aspect
of the [Muni] loan or the associated Court Hill notes.’’
That the court made a finding that contradicts the pri-
mary evidence that the plaintiff argues established prob-
able cause further confirms that there was no basis
for a finding of probable cause and the court never
made one.
We conclude that the plaintiff was required to present
evidence to establish probable cause to believe that (1)
the plaintiff would be successful on the merits of its
cause of action and (2) the plaintiff engaged in fair
dealing in the matters on which its cause of action is
based. The trial court then was required to assess
whether such probable cause existed before granting
a prejudgment remedy. We further conclude, on the
basis of the record, that although the court made the
requisite finding of probable cause to sustain the merits
of the underlying action before taking into consideration
the defense of breach of fiduciary duty, the trial court
thereafter did not make the requisite finding that there
was probable cause to believe that the plaintiff would
overcome that defense by demonstrating that it had
engaged in fair dealing. Because the plaintiff bears the
burden of proof on this issue, the failure to make such
a finding has the same effect as if the court failed to
find probable cause as to an essential element of the
plaintiff’s breach of contract claim, for example, the
existence of the notes. There is clear error.
The judgment granting the prejudgment remedy in
the amount of $1 million is reversed and the case is
remanded for further proceedings according to law.
In this opinion the other judges concurred.
1
We view the facts in a light most favorable to the plaintiff. See J.E.
Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 339, 71 A.3d 492
(2013) (on appeal, ‘‘[w]e will not upset a prejudgment remedy order in the
absence of clear error . . . viewing the evidence in the light most favorable
to the plaintiff’’ [citation omitted]).
2
By the time of the hearing on the prejudgment remedy application, Harp
was deceased.
3
The amended and restated promissory note provided that it was ‘‘given
in substitution for (but not in satisfaction of) a [p]romissory [n]ote of [m]aker
to [l]ender in the original principal amount of [$2,007,820] dated on or about
August 1, 2008.’’ It does not appear, however, that the August 1, 2008 note
was submitted into evidence at the hearing.
4
These two December 24, 2008 amended and restated promissory notes
collectively are referred to as the Court Hill notes.
5
The defendant’s request to file an amended answer and special defenses
was filed on March 18, 2016, slightly more than two weeks after the prejudg-
ment remedy hearing. The plaintiff filed an objection to the defendant’s
request, arguing that it would cause undue delay. The court granted the
request and overruled the objection on June 7, 2016, the same day it granted
the plaintiff’s application for a prejudgment remedy. The plaintiff did not
have an opportunity to file a reply to the amended special defenses before
the court rendered judgment, but it had filed a general denial in response
to the previous special defenses raised by the defendant. Regardless of when
the amended answer actually was filed, the record is clear that the defendant
presented each of the defenses in opposition to the plaintiff’s application
for a prejudgment remedy, and the court considered each of them.
6
The court found, and the parties do not dispute, that the plaintiff, having
acquired the Court Hill collateral notes after the notes were in default, is
not a holder in due course under General Statutes § 42a-3-302 (a), and that
the plaintiff is subject to any personal defenses that the defendant could
have asserted against Harp and Renaissance. The parties also agree that the
plaintiff stands in Harp’s shoes and owes a fiduciary duty to the defendant.
7
We note that this test is consistent with the formulation of the burden
of proof set forth by the defendant in his appellate brief. It is unclear to us
why the defendant argued for a higher burden during oral argument before
this court. But, because of this contention during oral argument, we conclude
that it is necessary that we address this argument in our opinion.