Water Pollution Control Authority v. Professional Services Group, No. 399294 (CT 7/26/2004)
| Decision Date | 26 July 2004 |
| Docket Number | No. 399294,399294 |
| Court | Connecticut Supreme Court |
| Parties | Water Pollution Control Authority of the City of Bridgeport v. Professional Services Group. |
On March 27, 1997, the plaintiff, Water Pollution Control Authority of the City of Bridgeport (plaintiff or WPCA) and the defendant, Professional Services Group, Inc. (PSG) entered into a written agreement in which PSG agreed that based on a schedule of compensation it would operate and maintain the plaintiff's wastewater treatment facilities. The agreement, which was subsequently amended, provided for the arbitration of any disputes between the parties. Disagreements arose between the parties as to the scope of the work and the compensation to which PSG was entitled. PSG filed a claim for arbitration seeking additional compensation and identified itself in the claim as Professional Services Group, Inc. d/b/a/ U.S. Filter. The plaintiff filed a counterclaim against PSG using the same name. The claim and counterclaim were heard together by the same arbitrator. The arbitrator found in favor of PSG on its claim in the amount of $800,000 and in favor of the plaintiff on its counterclaim in the amount of $788,605.00.
The plaintiff brought an application to the superior court to confirm the award in its favor and an application to vacate the award for PSG. Each application was accompanied by civil summons form JD-CV-1. In the space provided on the form designated "first named defendant," the plaintiff's attorney identified the defendant as "PROFESSIONAL SERVICES GROUP, INC., d/b/a/ U.S. Filter 205 Bostwick Avenue, Bridgeport, Ct 06605." In the space just below designated "additional defendant" the plaintiff's attorney stated:
Agent for PSG: Clara Mancini, 900 Chapel St., New Haven, Ct 06510
Service, however, was not made on either agent but rather on a project manager of PSG authorized to accept service.
The applications were assigned separate docket numbers but were tried together. On April 23, 2003, the court rendered judgment granting the application to vacate the award in favor of PSG. That same day, the court issued an order stating that the application to confirm was granted. On May 2, 2003, the plaintiff filed a motion for judgment confirming the arbitration award. On May 19, 2003, that motion was granted by the court.
On September 8, 2003, the plaintiff served executions on the towns of Seymour, Newtown and Naugatuck and the City of Danbury. Danbury and Naugatuck are customers of USFilter Operating Services, Inc. (USFOS), not PSG. In response to objections from PSG, the plaintiff withdrew these executions. However, after serving PSG's counsel with notice of the judgment, the plaintiff again served these towns with executions. In response, PSG moved for a protective order pursuant to General Statutes §52-400a. After a hearing, the court denied the motion.
On December 24, 2003, USFOS filed a "motion to disgorge," representing that the plaintiff had improperly received approximately $900,000 in assets as a result of having served a third-party execution on the City of Danbury. That motion is now before the court.
In its motion to disgorge, USFOS claims that (1) PSG and USFOS are separate and distinct corporate entities, (2) USFOS' assets are not subject to the judgment, (3) the plaintiff at all times knew that PSG and USFOS were separate entities, (4) the plaintiff directed a marshal to levy on USFOS' assets despite its knowledge that USFOS was not a party to the judgment, and (5) USFOS has been damaged by the execution.
In its objection to the motion to disgorge, the plaintiff contends (1) PSG and USFOS were held out to be the same company and were both party to the arbitration award and confirmation process, (2) the motion to disgorge is an attempt to open the judgment beyond the four-month period for doing so, (3) no motion to disgorge exists in Connecticut law, (4) USFOS has successor liability to PSG, (5) the motion is barred by the doctrine of res judicata.
The court holds that USFOS's motion, despite its appellation, is functionally a motion for the determination of interests in disputed property, pursuant to General Statutes §52-356c, and That because no judgment was rendered against USFOS no execution could issue against it. Accordingly, the motion to disgorge is granted.
The court first addresses the plaintiff's objections to the motion.
The plaintiff first argues that the court may not entertain the instant motion because there is nothing in the Practice Book that provides for a motion to disgorge. The court concludes that while the plaintiff is correct that the Practice Book does not provide USFOS with a procedural mechanism for the relief it seeks, the court nonetheless has jurisdiction to grant such relief, pusuant to General Statutes §52-356c.
Practice Book §1-1(a) states in relevant part: "The rules for the superior court govern the practice and procedure in the superior court in all civil . . . actions whether cognizable as cases at law, in equity or otherwise . . ." No Practice Book provision provides for a motion to disgorge or specifically addresses the relief that USFOS seeks.
However, there is no appellate authority for the proposition on which the plaintiff implicitly relies, that a Practice Book rule must exist before a party may invoke a statutory right. General Statutes §51-14(a) provides in part that the Practice Book "rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts." At least where the exercise of that right in the present procedural context does not clearly conflict with a Practice Book provision, the absence of a pleading in the Practice Book entitled "motion to disgorge" is no barrier to the court's entertaining such a motion so long as it has jurisdiction to act. See Zadravecz v. Zadraveca, 39 Conn.App. 28, 30, 664 A.2d 303 (1995). The court turns to that issue.
Telesco v. Telesco, 187 Conn. 715, 719-20, 447 A.2d 752 (1982).
First, the court has cognizance of the class of cases to which these proceedings belong, pursuant to General Statutes §52-356c. General Statutes §§52-350a to 52-400f address postjudgment procedures. The substantive right to the relief that USFOS seeks is conferred by General Statutes §52-356c. General Statutes §52-356c(a) provides in part: "Where a dispute exists between the judgment debtor or judgment creditor and a third person concerning an interest in personal property sought to be levied on, or where a third person claims that the execution will prejudice his superior interest therein, the judgment creditor or third person may, within twenty days of service of the execution or upon application by the judgment creditor for a turnover order, make a claim for determination of interests pursuant to this section."1 Here, a dispute exists between a judgment creditor, the plaintiff and a third person, USFOS, concerning an interest in personal property,2 debts ostensibly owed by the City of Danbury to USFOS.
Second, the proper parties are present. General Statutes §52-350d(a) provides: "For the purposes of postjudgment procedures, the superior court shall have jurisdiction over all parties of record in an action until satisfaction of the judgment or, if sooner, until the statute limiting execution has run . . ." A "postjudgment procedure" is defined to include a property execution; General Statutes §52-350a(15); and "property" is defined in General Statutes §52-350a(16) to include "any debt, whether due or to become due" in which the judgment debtor has an interest which he could assign or transfer. While General Statutes §52-350e prescribes a particular service of process concerning a postjudgment procedure, the plaintiff does not challenge the manner in which it was served with the motion to disgorge or the process with which it was served. Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). By failing to raise any issue of personal jurisdiction and participating in the hearing on the intervenor's motion, the plaintiff waived any claim of lack of personal jurisdiction. See, e.g., Connecticut Light & Power Co. v. St. John, 80 Conn.App. 767, 769 n.2, 772 n.7, 837 A.2d 841 (2004); In re Deana E., 61 Conn.App. 185, 192, 763 A.2d 37 (2000). Therefore, the court has post-judgment jurisdiction over the plaintiff and PSG. The court has jurisdiction over USFOS since, by filing the motion to disgorge, USFOS has submitted to the jurisdiction of the court. See General Statutes §52-356c(b) (). Finally, by order of the court, the City of Danbury has been given due notice of these proceedings and the opportunity to participate fully. On July 26, 2004, Danbury availed itself of that opportunity and was heard, as were the plaintiff and PSG.
The final element for jurisdiction is that "the point decided must be, in substance and effect, within the issue." Telesco v. Telesco, supra, 187 Conn. 720. "What is in issue is determined by the pleadings and these must be in writing." Id. What is in issue here is...
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