Opinion
(9995)
The rules of practice (102) authorize a defendant or the trial court to cause a third party to be summoned as a party to an action where the third party's interests are affected by a counterclaim in the action. The plaintiff commissioner of labor sought to recover wages allegedly owed by the defendant to the plaintiff W. The defendant filed a counterclaim to recover certain money it claimed was owed to it by W. After the plaintiffs obtained an ex parte prejudgment garnishment of any funds owed to the defendant by T Co., K Co. sought to be made a party pursuant to 102 to challenge the garnishment claiming that it was the owner of the garnished funds since it had bought the defendant's assets. The trial court denied K Co.'s motion and K Co. appealed to this court. Held that because K Co.'s interests were not affected by the counterclaim it could not challenge the garnishment under 102.
Argued September 30, 1991
Decision released December 17, 1991
Action to recover damages for nonpayment of wages allegedly owed to Robert L. Wright pursuant to an employment contract with the defendant, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the defendant filed a counterclaim; thereafter, the court, O'Neill, J., granted the plaintiff's application for an ex parte attachment on certain of the defendant's real property; subsequently, the court denied the motion filed by Kelser Corporation to be made a defendant, and Kelser Corporation appealed to this court. Affirmed.
David A. Zipfel, for the appellant (Kelser Corporation).
Patricia M. Strong, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
This appeal concerns the denial of the motion of a nonparty to be made a party defendant for the sole purpose of attacking a prejudgment remedy obtained by the plaintiff. We affirm the trial court's denial of the motion.
The record discloses that the plaintiffs are the Connecticut commissioner of labor and Robert Wright, a former employee of the defendant. The commissioner brought this action pursuant to General Statutes 31-72 on behalf of Wright for wages he claims were not paid to him by the defendant. The defendant counterclaimed alleging that Wright had refused to repay unearned commissions. While the action was pending, the plaintiffs obtained an ex parte prejudgment garnishment of any money due the defendant from the Travelers Insurance Company. The garnishment was granted ex parte on the plaintiffs' representation that there was a reasonable likelihood that the defendant was about to sell all its assets or to remove itself or its property from the state of Connecticut.
General Statutes 31-72 provides in pertinent part: "When any employer fails to pay an employee wages in accordance with the provisions of [section] 31-71a . . . such employee . . . may recover, in a civil action . . . . The labor commissioner may collect the full amount of any such unpaid wages . . . as well as interest calculated in accordance with the provisions of section 31-265 from the date the wages or payment should have been received, had payment been made in a timely manner. . . ."
Hamilton Standard (presumably the Hamilton Standard Division of United Technologies Corporation) was also garnisheed but is not involved in this appeal.
General Statutes 52-278e (a) provides in pertinent part: "The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing . . . upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and . . . (2) that there is reasonable likelihood that the defendant . . . (C) is about to remove himself or his property from this state . . . ."
At this stage, the Kelser Corporation moved pursuant to Practice Book 102 to be made a party defendant, alleging that it had bought the defendant's assets and that the funds garnisheed at the Travelers Insurance Company were in fact Kelser's and not the defendant's. The trial court denied Kelser's motion on the grounds that it did not come within the scope of Practice Book 102. We agree.
Practice Book 102 consists of only one sentence which provides: "When a counterclaim raises questions affecting the interests of third parties, the defendant may, and if required by the court shall, cause such parties to be summoned in as parties to such suit." (Emphasis added.) In the present case, the counterclaim refers solely to money that the defendant seeks from the plaintiff Wright for alleged unearned premiums. It does not implicate any interest of Kelser and therefore Practice Book 102 is inapplicable.
General Statutes 52-110 is identical to Practice Book 102.
Moreover, the purpose of a 102 motion is to confer party status in a case, a result that Kelser expressly disavows. Kelser's sole avowed purpose is to attack the prejudgment attachment which it claims affects its property interests and not the defendant's. A motion under Practice Book 102 is not the correct legal mechanism to litigate the issue that Kelser is attempting to raise.
"[The Plaintiff's Counsel to the court]: I don't believe Kelser is asking to be admitted as a party on the counterclaim, Your Honor, unless I'm missing something. "[The Court]: No? I thought that's all they wanted. "[Defense Counsel]: No, Your Honor."