STATE v. SUNRISE HERBAL REMEDIES, INC., et al.;

 STATE v. DAVID HOFFMAN et al., SC 18371

Judicial District of Stamford-Norwalk

     Prejudgment Remedies; Whether Affidavit Submitted in Support of Prejudgment Remedy Application was from a "Competent Affiant" as Required by General Statutes § 52-278e.  Pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), the state brought an action against Sunrise Herbal Remedies, Incorporated, (SHR) and its principal, Valerie Hawk-Hoffman, alleging that the defendants had engaged in numerous unfair or deceptive practices in connection with the sale of herbal products to consumers (CUTPA action).  Subsequently, the state brought a second action, alleging that Valerie Hawk-Hoffman fraudulently conveyed property to her husband, David Hoffman.  In the CUTPA action, the state, pursuant to General Statutes § 52-278e, filed an application for an ex parte prejudgment remedy (PJR application) to secure the sum of $1,391,000.  The sole affidavit filed in support of the PJR application was from Matthew F. Fitzsimmons, an assistant attorney general.  In his affidavit, Fitzsimmons stated that consumer complaints filed against SHR revealed a course of conduct involving, among other things, the enrollment of consumers in automatic shipment programs without first obtaining their express authorization.  The trial court granted the state's PJR application on March 19, 2007.  The state also filed an ex parte PJR application in the fraudulent conveyance action to secure the sum of $1,391,000.  Again, the sole affidavit filed in support of the PJR application was from Fitzsimmons.  That PJR application was granted on March 23, 2007.  Subsequently, the defendants moved to dissolve the PJR orders, claiming that the court lacked subject matter jurisdiction over the PJR applications because the state failed to submit an affidavit from a "competent affiant" as required by § 52-278e.  The court observed that it was axiomatic that an affiant must have personal knowledge of facts to be competent to testify about those facts.  Noting that Fitzsimmons' knowledge about the facts upon which the state's claims against the defendants were based came from the consumer complaint files he had reviewed, the court concluded that Fitzsimmons' statements in the affidavits were based upon hearsay information rather than his personal knowledge and, therefore, he was not a "competent affiant" within the meaning of § 52-278e.  Accordingly, the court granted the defendants' motion to dissolve the PJR orders, ruling that it was without subject matter jurisdiction to issue those orders based on the state's failure to satisfy the requirements of § 52-278e.  On appeal, the state claims, among other things, that Fitzsimmons was a "competent affiant" within the meaning of § 52-278e because he did not rely exclusively on hearsay information.  Alternatively, the state claims that the statute does not prohibit affidavits based on hearsay.