The Prejudgment Remedy: A Connecticut Claimant’s Closest Ally

All too often in litigation, winning a hard‑fought money judgment starts the equally arduous process of attempting to transform the judgment into money. Recovery may be no sure thing, particularly if the losing party dissipates assets, flees the jurisdiction, or otherwise resists enforcement. Fortunately for litigants—or unfortunately for them—Connecticut offers an unusually powerful statutory tool for securing compliance with an anticipated judgment, based on an evidentiary showing that the judgment is reasonably likely to materialize. To lawyers and litigants in and around the State, this prejudgment remedy is popularly known by its initials: PJR.

These three little letters punch well above their weight. The PJR functions to freeze the other party’s assets—via attachment, garnishment, or replevin—and deprive the other party of the ability to use or transfer those assets prior to a final judgment. Connecticut General Statutes §§ 5‑278a to 5‑278n set forth the mandatory procedures for obtaining this provisional remedy, subject to certain limited exceptions.[1]

In general, a litigant may seek a PJR at any time during an action.[2] Thus, PJRs may be had at a case’s outset, in the pretrial phase, after judgment (quite contrary to their moniker), or even on appeal.[3] The PJR is an equal‑opportunity tool, available both to claimants and to counterclaimants.[4] Nor is this remedy restricted to lawsuits alone: a claimant enmeshed in arbitration may seek a PJR too.[5] But in all events, to qualify, the subject judgment must arise from a Connecticut action. PJRs are not a means to secure enforcement of future judgments being pursued in courts elsewhere.[6]

A sworn affidavit and other prescribed forms must support any PJR application.[7] Moreover, this provisional remedy generally requires advance notice and a hearing—but not always.[8] One exception applies for claims brought on certain commercial (i.e., non‑consumer) transactions in which the defendant has explicitly waived the right to notice and a hearing for a PJR.[9] (As of last year, however, a statutory amendment makes PJR waivers unenforceable in merchant cash‑advance contracts involving financing of $250,000 or less.[10]) Alternatively, an applicant may proceed ex parte, on a showing that the adversary would otherwise be likely to evade judicial process or hide or dissipate assets.[11] In any of these circumstances, consistent with due process, the party obtaining the PJR must promptly notify the other side of its entry and the right to ask the court to dissolve or modify the PJR after the fact.

In all cases, a PJR is subject to a “probable cause” standard of proof. Less than a preponderance of the evidence, probable cause demands proof that would sustain a bona fide belief in the mind of someone of ordinary caution and prudence that the applicant will later obtain a judgment on the merits.[12] For this purpose, the concept of probable cause is a flexible one that does not require that a belief be correct or more likely true than false.[13] To obtain a PJR in a specific amount, the proponent must demonstrate probable cause to conclude both that the substantive claim (or claims) will succeed on the merits and that any monetary recovery will equal or exceed the dollar value of the PJR being sought.[14]

The question of whether a PJR applicant will prevail on the merits incorporates any potential defenses to liability.[15] And the PJR‑stage inquiry into the level of monetary recovery may include not just compensatory damages, but also, in appropriate cases, punitive damages and attorney’s fees.[16] The sum total will be frozen in place, unavailable for the opposing party’s use, and ready in theory to secure a judgment, often long before a trial reaches the radar.

Nevertheless, applying for such a provisional remedy carries risk. After all, losing the PJR motion—by failing to establish probable cause for an award of liability or damages—could embolden one’s adversary to litigate to the hilt, rather than entertain a settlement. Moreover, laying the case bare at a preliminary hearing opens a window into both sides’ key evidence and arguments—which litigants are loath to leave unrebutted. No wonder, then, that PJR hearings frequently resemble full‑blown mini‑trials of the whole action (despite courts’ insistence that these preliminary proceedings need not be so involved).

The statutory scheme offers a variety of ancillary remedies following an initial PJR determination. For example, the applicant may ask the court, at any time after a probable-cause finding, to have the other party disclose the existence and location of property that might satisfy the putative judgment.[17] Further, a party facing a PJR may request to comply instead by posting a bond and, turning the tables, may request that the proponent post a bond to compensate for any wrongful deprivation of property.[18] An order granting or denying a PJR is also subject to an immediate appeal, although appeals do not automatically stay compliance obligations.[19] Appellate courts will review PJR decisions for clear error only.[20]

This discussion is far from academic. Last year, a trial court issued a PJR for $5 million against the defendant in a prominent civil enforcement action that the State Attorney General’s Office brought under the Connecticut Unfair Trade Practices Act. As often happens, the PJR application accompanied the complaint’s filing.[21] Since then, another trial court issued an even larger PJR for almost $22 million, in a lawsuit brought against a company by its former chief executive for payments allegedly due under a separation agreement.[22]These events are a reminder that the PJR remains alive and well in Connecticut, deployed in disputes of all shapes and sizes.

 

[1] Feldmann v. Sebastian, 261 Conn. 721, 725‑26 (2002) (reaffirming that statutory scheme governing PJRs “must be strictly construed”); William Beazley Co. v. Bus. Park Assocs., 34 Conn. App. 801, 803-04 (1994) (same).

[2] Conn. Gen. Stat. § 52-278h.

[3] GMAT Legal Title Tr. 2014-1 v. Catale, 213 Conn. App. 674, 690 (2022).

[4] Johnson v. Vita Built, LLC, 217 Conn. App. 71, 83 (2022).

[5] Conn. Gen. Stat. § 52-422; Lemma v. York & Chapel, Corp., 204 Conn. App. 471, 476 (2021) (affirming confirmation of arbitral award following grant of PJR).

[6] Cahaly v. Benistar Prop. Exch. Tr. Co., 268 Conn. 264, 274 (2004).

[7] Conn. Gen. Stat. § 52-278c.

[8] Conn. Gen. Stat. § 52-278d.

[9] Conn. Gen. Stat. § 52-278f.

[10] Conn. Gen. Stat. § 36a-868.

[11] Conn. Gen. Stat. § 52-278e.

[12] TES Franchising, LLC v. Feldman, 286 Conn. 132, 137 (2008).

[13] Id.

[14] Id.

[15] Conn. Gen. Stat. § 52-278d.

[16] TES Franchising, 286 Conn. at 147 & n.16.

[17] Conn. Gen. Stat. § 52-278n; Conn. Prac. Book § 13-13.

[18] Conn. Gen. Stat. § 52-278c (bond to satisfy PJR), § 52-278d (bond for wrongful deprivation).

[19] Conn. Gen. Stat. § 52-278l; cf. Access Int’l Advisors Ltd. v. Argent Mgmt. Co., 2011 WL 1887324, at *2 (Conn. Super. Ct. 2011) (denying motion for stay pending appeal of asset-disclosure order following PJR, on grounds that disclosure order, unlike PJR, was not subject to interlocutory appeal).

[20] TES Franchising, 286 Conn. at 137.

[21] State v. Career Training Specialists, LLC d/b/a Stone Academy, No. UWY‑CV23‑6072103‑S (Conn. Super. Ct., Waterbury J.D.), Dkt. No. 101.10.

[22] Tow v. Frontier Commc’ns Parent, Inc., 2024 WL 1635240, at *1 (Conn. Super. Ct. 2024).