John Orsini v. Kathleen Tarro

The defendant, Kathleen Tarro,
appeals from the judgment of the trial court granting
the application for a prejudgment remedy filed by the
plaintiff, John Orsini, in the amount of $5500. The defen-dant
claims that the court improperly granted the pre-judgment
remedy on the basis of General Statutes § 52-
568. We affirm the judgment of the trial court.

The following facts are relevant to our consideration
of the defendant's claim on appeal. The defendant is
the principal of Interiors of Yesterday, LLC (Interiors).
The plaintiff was Interiors' landlord. In April, 2001, the
plaintiff, pursuant to the lease agreement between the
parties, pursued Interiors through arbitration for rent
due and various other damages. The arbitrator awarded
the plaintiff $110,000, and the trial court confirmed that
award. The defendant, pro se, appealed the court's judgment.

On October 19, 2001, the defendant, pro se, filed a
voluntary bankruptcy petition on Interiors' behalf,
which the United States Bankruptcy Court for the Dis-trict
of Connecticut dismissed. On February 6, 2002, the
defendant, pro se, filed a second voluntary bankruptcy
petition on Interiors' behalf.1 On February 26, 2002,
the plaintiff commenced the present action against the
defendant pursuant to § 52-568. 2 On May 6, 2002, the
plaintiff filed an application for a prejudgment remedy,
asserting that there was probable cause that he would
succeed on the merits of his claim against the defendant
for vexatious defenses interposed in the arbitration pro-ceeding
and in filing the bankruptcy petitions. On Sep-tember
24, 2002, the court granted the plaintiff's
application, stating: ‘‘The court finds that there is proba-ble
cause that the plaintiff will prevail in his claim that
these bankruptcy petitions improperly initiated by [the
defendant], with no bona fide basis to believe she had
the right to so proceed, were vexatious proceedings by
[her].3 The court finds, based on the evidence before
it, that the plaintiff has incurred damages by way of
attorney's fees and costs regarding the bankruptcy in
the amount of $4175.

‘‘The appeal filed pro se by [the defendant] was also
a civil action filed without merit or a bona fide belief
in the right to so proceed. As a result of this vexatious
conduct, there is probable cause to believe the plaintiff
will be successful on the merits of this aspect of the
claim. The plaintiff has established damages by way of
attorney's fees in the amount of $1150. Based upon the
evidence before the court for this proceeding, the court
finds there is probable cause the plaintiff will prevail
at least in part and issues a prejudgment remedy attach-ment
in the amount of $5500.'' 4 The defendant now
appeals from that judgment.

‘‘The [prejudgment remedy] probable cause review
is extremely limited. It is firmly established that the
trial court's hearing in probable cause is not intended
to be a full scale trial on the merits of the plaintiff's
claim. The plaintiff does not have to establish that he
will prevail, only that there is probable cause to sustain
the validity of the claim....Thecourt's role in such a
hearing is to determine probable successes by weighing
probabilities.'' (Internal quotation marks omitted.) Wil-liam
Beazley Co. v. Business Park Associates, Inc.,34
Conn. App. 801, 805–806, 643 A.2d 1298 (1994).

‘‘Appellate review of a trial court's broad discretion
to deny or grant a prejudgment remedy is limited to a
determination of whether the trial court's rulings consti-tuted
clear error.'' State v. Ham, 253 Conn. 566, 568,
755 A.2d 176 (2000). ‘‘It is the trial court that must
determine, in light of its assessment of the legal issues
and the credibility of the witnesses, whether a plaintiff
has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only
whether the determination of the trial court constituted
clear error.'' Greenberg, Rhein & Margolis, Inc. v. Nor-ris-
Faye Horton Enterprises, Inc., 218 Conn. 162, 166,
588 A.2d 185 (1991).

to sustain the validity of its claim. We decide only
whether the determination of the trial court constituted
clear error.'' Greenberg, Rhein & Margolis, Inc. v. Nor-ris-
Faye Horton Enterprises, Inc., 218 Conn. 162, 166,
588 A.2d 185 (1991).

In her argument, the defendant claims that because
there was no evidence that the bankruptcy petitions
had terminated, the plaintiff could not satisfy one of
the elements of a claim for vexatious litigation.5 In
essence, the defendant argues that before a prejudg-ment
remedy may issue, the court must find, either
expressly or impliedly, that a cause of action exists.
That is not the law. ‘‘The adjudication made by the
court on the application for a prejudgment remedy is
not part of the proceedings ultimately to decide the
validity and merits of the plaintiff's cause of action. It
is independent of and collateral thereto and primarily
designed to forestall any dissipation of assets by the
defendant . . . . [P]rejudgment remedy proceedings
. . . are not involved with the adjudication of the merits
of the action brought by the plaintiff or with the prog-ress
or result of that adjudication.'' (Internal quotation
marks omitted.) William Beazley Co. v. Business Park
Associates, Inc., supra 34 Conn. App. 806.

On the basis of our review of the record, we conclude
that the court did not abuse its broad discretion in
granting the plaintiff's application for a prejudgment
remedy.

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