DocketNumber: No. CV 94-0362831-S
Citation Numbers: 1994 Conn. Super. Ct. 10697, 12 Conn. L. Rptr. 539
Judges: MEADOW, STATE TRIAL REFEREE.
Filed Date: 10/20/1994
Status: Non-Precedential
Modified Date: 4/17/2021
On July 1, 1994, the plaintiffs, Richard and Harriet DeMato, filed a four-count complaint against the defendants, Decorator Telephone, Inc. (Decorator) and Paul Brown, and brought an application for a prejudgment remedy against the defendant, Decorator. The plaintiffs seek to garnishee their own debt to the defendants, pursuant to Conn. Gen. Stats. §
The application seeks to garnishee the amount of $550,000 of a $650,000 note secured by a mortgage on the property sold to the plaintiffs by Decorator. The note was due prior to the date of the application.
The plaintiffs further seek to have the court order that the monies ordered garnished be deposited in an escrow account, pending the final outcome of their complaint; that the plaintiffs would pay the difference due to the defendants; and that no further interest would be due. In essence, the plaintiffs seek the court to rewrite the terms of the promissory note. The plaintiffs further seek this court to order a release of the mortgage securing the payment of the note pending the resolution of this case. The plaintiffs further seek that a receiver be appointed to retain the monies ordered to be garnished.
A review of the complaint shows that: On August 19, 1992, the plaintiffs and Decorator entered into a contract of sale of Rogers CT Page 10699 Island. The contract (Exhibit A) contained provisions which represented that the house existing on the island had a septic system, and that septic system conformed to all federal, state, and local regulation. The house in fact had no septic system, but discharged directly into Long Island Sound. The plaintiffs claim damages as a result for the installation of a new septic system in the amount of $321,666. The sale price of the property totalled $2,650,000.
"Section
The plaintiffs argue and they testified that they relied upon the defendant's representations in the contract, as well as the listing, and now that the estimated cost of installing a septic system is $321,666.00. The plaintiffs also maintain that the testimony given by Leroy Murray and Mark Lidsky show that the sewage disposal system consisted solely of a single pipe leading into Long Island Sound. However, the plaintiffs' own expert, Anthony DaRos, testified before the sale that he mistakenly believed that a sewage disposal system existed and he advised the plaintiffs it would cost $10,000 to repair. The plaintiffs presented the testimony of Dennis Johnson, the Director of East Shore District Health, that the State of Connecticut had been, previous to the sale, trying to determine whether the sewage discharged directly into the sound, through the use of dye tests, and that the defendant had notice of these tests. The plaintiffs CT Page 10700 introduced the blue prints submitted to the East Shore District Health that demonstrate that the main house had no existing sewage system. The print is dated "Received April 13 1989 E.S.D.H.D." (See Exhibit Y), more than three years before the contract of sale.
Decorator argues that the plaintiffs had the island inspected by twelve different inspectors, one of whom, Anthony DaRos, reported to the plaintiffs that the septic system of the main house was not functioning, but could be repaired for $10,000. Decorator maintains that despite this knowledge the plaintiffs chose not to withdraw from the contract within the time provided for inspections and withdrawal. Furthermore, Decorator contends that the plaintiffs claimed to have discovered the lack of a septic system eighteen months after the purchase of the property, shortly after the purchase money mortgage became due, and that those engaged to look for the septic system were not licensed installers or cleaners of septic systems. Moreover, Decorator argues that Paul Christopherson, the island groundskeeper, walked the island three times per day and never noticed any discharge into the sound, and that he did not block, or see anyone else block the sewage pipe. Decorator also maintains that it had no knowledge of a blocked pipe, never performed any maintenance on the sewage system, nor had it pumped out.
The plaintiffs seek to garnish the proceeds of the note pursuant to Conn. Gen. Stats. §
"when a debt . . . is due from any person to such defendant . . . the plaintiff may insert in his writ . . . a direction to the officer to leave a true and attested copy thereof and of the accompanying complaint, at least twelve days before the return day, with such . . . debtor . . ., or at the usual place of abode of such garnishee; and from the time of leaving such copy all the effects of the defendant in the hands of any such garnishee, and any debt due from any such garnishee to the defendant, . . . not exempt from execution, shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover."
Although one Connecticut Supreme Court has raised the question CT Page 10701 of whether a plaintiff may garnish a debt owed by himself to the defendant, "it has never been held in this State that a plaintiff may factorize himself in his own suit." Wright v. Wright,
The plaintiffs also cite other jurisdictions in which a plaintiff is permitted to garnish his own debt, however, these decisions either do not detail any rationale for their rulings, or rest on statutory authority. See Rowan v. State, to Use of Grove,
There is, however, a divergence of authority. See 31 A.L.R. 711, 61 A.L.R. 1458. "The decisions, with very few exceptions, that permit a plaintiff to garnishee himself, find recognition and support thereof in their respective statutes." First InternationalBank v. Brehmer,
The plaintiff argues that Conn. Gen. Stats. §
There is no necessity for a plaintiff to resort to the protections of Conn. Gen. Stats. §
The instant application and the various conditions of the garnishment sought would in effect enjoin the defendant from seeking any of the remedies allowed by law upon a default of payment of a note. The court cannot rewrite the terms of the note. Any redress sought from payment of the note are still available to the plaintiffs who again are already in possession of the monies sought to be garnisheed.
Accordingly, the prejudgment remedy is denied because the remedy sought is outside the scope of the statute
Conn. Gen. Stats. §
Frank S. Meadow State Trial Referee
Valley Butter Co. v. Minnesota Coöperative Creameries Ass'n , 300 Pa. 102 ( 1930 )
Rowan v. State Ex Rel. Grove , 172 Md. 190 ( 1937 )
Wood v. E. M. Bangs. Sutorius Co. , 199 Minn. 208 ( 1937 )
R. L. Emery, Jr. v. C. D. Beck Co. , 124 W. Va. 766 ( 1942 )
Wright v. Wright , 93 Conn. 296 ( 1919 )
Norco Realty Corporation v. Margulies , 21 Conn. Super. Ct. 357 ( 1959 )