DocketNumber: 10238
Citation Numbers: 26 Conn. App. 580
Judges: Foti
Filed Date: 2/11/1992
Status: Precedential
Modified Date: 9/8/2022
The plaintiff, a professional corporation, instituted this action seeking a judgment declaring that garnishments served on it by the defendant Kwik Care were ineffective and invalid. The defendant Kwik Care,
The court found the following facts. On October 27, 1989, the commissioner of income maintenance approved a settlement agreement with Al-Charles, Inc. and entered a consent order. The agreement provided that
On November 30, 1989, the defendant served an “order granting prejudgment remedy ex parte” on Reid & Riege, which sought to garnish to the value of $35,000 the property of Al-Charles, Inc., held by the plaintiff in the form of the medicaid reimbursement check payable to both Al-Charles, Inc., and the plaintiff. On December 7, 1989, the plaintiff received the check.
The court concluded that the settlement agreement, in and of itself, did not create a debt due from the plaintiff to Al-Charles, Inc. The court pointed out that the plaintiff did not receive the reimbursement check until December 7, 1989. Because the court found that delivery of the check was a condition precedent to the check’s becoming a debt due, the court concluded that there was no debt due on November 30, 1989, the date of the attempted garnishment.
Because the plaintiff’s obligation to pay Al-Charles, Inc., or Lizzi originates in the contract of settlement, the validity of the defendant’s garnishment depends on the nature of the obligation as defined by the terms of the agreement. See id., 517. “Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in that contract and read in light of the circumstances surrounding the execution of the instrument.” Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 149, 328
The plaintiff’s position regarding Al-Charles, Inc., Lizzi and the department of income maintenancSTnust be viewed in light of the intent of the parties. Such an issue raises a question of fact. The trial court must determine whether the settlement contract created a debt due by the plaintiff to Al-Charles, Inc., within the meaning of our law, and whether actual receipt of the check from the department was merely a condition subsequent, the failure of which could defeat an existing obligation, rather than a condition precedent to the obligation. See Calechman v. Great Atlantic & Pacific Tea Co., 120 Conn. 265, 270, 180 A. 450 (1935). “The validity of a garnishment . . . must be determined not from hindsight, but by evaluating the status of the debt at the time of service of the writ of garnishment.” F & W Welding Service, Inc. v. ADL Contracting Corporation, supra, 519. The trial court must determine the status of the debt at that time by interpreting the intent of the parties to the settlement agreement.
“ ‘ “Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384.” ’ Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989). The court’s function is not to decide issues of material fact but instead simply to determine whether such issues exist.” DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990). In moving for summary judgment, the plaintiff has the burden of showing the nonexistence
The defendant has established a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 452, 477 A.2d 653 (1984).
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion the other judges concurred.
The action was withdrawn as to the named defendant, Brainerd Cash-man Insurance Agency, Inc. In this opinion, we refer to Kwik Care as the defendant.
During oral arguments, the plaintiff, through its counsel, Mark H. Dean, stated that it had never represented Al-Charles, Inc. The record, however, indicates otherwise. An affidavit by an assistant attorney general, Kenneth A. Graham, filed by the defendant in opposition to the plaintiffs motion for summary judgment, states that in the matter of Al-Charles, Inc. v. State of Connecticut, File No. 9876, Attorney Mark H. Dean on behalf of Reid & Riege, P.C., represented the corporation, and that Al-Charles, Inc. was the sole claimant in the matter. Further, attached to the affidavit as submitted to the court is a copy of a letter, dated August 2, 1988, from Dean to the claims commissioner indicating that the plaintiff represented the claimant Al-Charles, Inc., File No. 9876, and requesting that the commissioner refrain from taking any action on the claim for sixty days so that the plaintiff could review and more fully prepare the claim.
We note that it is unclear in the record to whom “those two” refers.