Feldmann v. Sebastian

805 A.2d 713, 261 Conn. 721, 2002 Conn. LEXIS 370
CourtSupreme Court of Connecticut
DecidedOctober 1, 2002
DocketSC 16651
StatusPublished
Cited by15 cases

This text of 805 A.2d 713 (Feldmann v. Sebastian) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feldmann v. Sebastian, 805 A.2d 713, 261 Conn. 721, 2002 Conn. LEXIS 370 (Colo. 2002).

Opinion

Opinion

ZARELLA, J.

The sole issue in this appeal is whether the trial court improperly denied the application of the named plaintiff, Donna K. Feldmann (plaintiff),1 for a prejudgment remedy and the appointment of a receiver to collect certain tribal incentive payments furnished to the defendants, Keithkalani Sebastian and Juanita Graham, as members of the Mashantucket Pequot Tribal Nation (tribe). On appeal, the plaintiff claims, inter alia,2 that she is authorized to pursue her applica[723]*723tion for a prejudgment remedy and the appointment of a receiver pursuant to General Statutes §§ 52-278a* *3 and 52-504.4 The defendants claim, inter alia, that the trial court properly concluded that it lacked authority to order the transfer of tribal incentive payments to a receiver. We agree with the defendants. Accordingly, we affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to this appeal. On July 7, 2000, Jeffrey Feldmann, the plaintiffs decedent, was fatally injured when a motorcycle that he was driving collided with a vehicle driven by Sebastian. Sebastian’s mother, Graham, was the owner of the vehicle that Sebastian was driving at the time of the collision. The plaintiff sought to recover damages from the defendants for wrongful death and loss of consortium. The defendants are both members of the Mashantucket Pequot Tribal Nation (tribe). As members of the tribe, they receive tribal incentive payments, which are monthly stipends that the tribe pays to its members. The amount, duration and frequency of these stipends are within the sole discretion of the tribe.

On December 13, 2000, the plaintiff filed a second amended application for a prejudgment remedy and for [724]*724the appointment of a receiver in which she requested, inter alia, that the trial court order the defendants to turn over to a receiver any tribal incentive payments that the defendants had received to date. In support of her application, the plaintiff alleged that, at the time of the accident, the automobile insurance policy under which Graham’s vehicle was insured was insufficient to cover the damages suffered by the plaintiff and her decedent’s estate. The plaintiff further alleged that, as a result of this deficiency in insurance coverage, the appointment of a receiver was necessary to collect all tribal incentive payments furnished to the defendants in order to secure the sum of six million dollars. The parties stipulated that probable cause did exist to sustain the plaintiffs request for a prejudgment remedy. Consequently, the only issue before the trial court was whether the remedy sought by the plaintiff was proper as a matter of law. After a hearing, the trial court denied the plaintiffs application, concluding that it lacked jurisdiction to order the garnishment of tribal incentive payments or the transfer of those payments to a receiver. The plaintiff appealed to the Appellate Court from the decision of the trial court to deny the plaintiffs application, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

As a preliminary matter, we set forth the standard of review that governs our analysis on appeal. Ordinarily, we review a trial court’s actions with respect to an application for a prejudgment remedy for abuse of discretion. See, e.g., State v. Ham, 253 Conn. 566, 568, 755 A.2d 176 (2000); Nash v. Weed & Duryea Co., 236 Conn. 746, 749, 674 A.2d 849 (1996). In the present case, however, the parties stipulated that, at the time of the hearing on the plaintiffs prejudgment remedy application, probable cause existed to sustain a prejudgment remedy. Therefore, the only issue before the trial court [725]*725was whether the plaintiffs requested remedy was authorized as a matter of law. Because this issue presents a question of law, our review is plenary. See, e.g., Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000).

We begin by reviewing well established precedent regarding prejudgment remedies. In Munger v. Doolan, 75 Conn. 656, 659, 55 A. 169 (1903), we determined that a plaintiffs attachment of a defendant’s real property is valid only when the plaintiff strictly follows the applicable statute. We stated that the “statute [regarding attachments] is . . . exclusive. Being in derogation of both common right and common law, it is one to be strictly inteipreted and pursued. Its provisions and requirements may not be disregarded with impunity, nor waived or changed by courts.” Id. We consistently have adhered to these principles of strict construction in dealing with various aspects of prejudgment remedy statutory schemes. See Carter v. Carter, 147 Conn. 238, 242, 159 A.2d 173 (1960) (statute prescribing procedure for attaching property of nonresident is exclusive and in derogation of common law and, therefore, must be strictly construed); Chapel-High Corp. v. Cavallaro, 141 Conn. 407, 410, 106 A.2d 720 (1954) (“[The] power to attach property on mesne process is an extraordinary one granted by the General Assembly in derogation of common right and common law. . . . The failure of an officer ... to pay strict observance to the statutory requirements will render the attachment invalid.” [Citation omitted.]); Fosdick v. Roberson, 91 Conn. 571, 577, 100 A. 1059 (1917) (statute authorizing attachment of nonresident’s property, being in derogation of common right and common law, must be strictly construed); Ahern v. Purnell, 62 Conn. 21, 24, 25 A. 393 (1892) (right to attach real property is right “defined and regulated by statute” that must be strictly construed); Sanford v. Pond, 37 Conn. 588, 590-91 (1871) (“[t]he power of [726]*726taking property by attachment, before any just debt or claim has been established, is an extraordinary power, given by statute, against common right; and no title can be acquired by its exercise, except by strict compliance with the terms of the statute”); Cady v. Gay, 31 Conn. 395, 397 (1863) (statute providing for attachment of nonresident’s real property must be strictly construed). More recently, we reaffirmed the principle that “[t]he right to a prejudgment remedy of attachment is purely statutory.” Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766, 628 A.2d 1303 (1993).

Having reaffirmed the principle that prejudgment remedies are in derogation of the common law and, therefore, that prejudgment remedy statutes must be strictly construed, we turn to the specific prejudgment remedy sought by the plaintiff.5 In her application for a prejudgment remedy and for the appointment of a receiver, the plaintiff sought, inter alia, an order directing the defendants, upon receipt of any monthly tribal incentive payments, to transfer those payments to an appointed receiver.

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Cite This Page — Counsel Stack

Bluebook (online)
805 A.2d 713, 261 Conn. 721, 2002 Conn. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feldmann-v-sebastian-conn-2002.