Vossbrinck v. Hobart ( 2021 )

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KARL PAUL VOSSBRINCK v. BRIAN HOBART
(AC 42648)
Elgo, Alexander and DiPentima, Js.
Syllabus
The plaintiff, whose real property had been foreclosed on, brought an action
against the defendant, a state marshal, alleging that the defendant stole,
or allowed to be stolen, numerous items of the plaintiff’s personal prop-
erty when the defendant executed an order of ejectment at the property
subsequent to the foreclosure. The plaintiff claimed that the defendant
deprived him of certain of his constitutional rights and committed numer-
ous violations of state law, including civil conspiracy and larceny. The
defendant thereafter filed a motion for summary judgment, claiming
that the trial court lacked subject matter jurisdiction and that he was
entitled to judgment as a matter of law because no genuine issue of
material fact existed. The trial court granted the defendant’s motion,
concluding, inter alia, that the defendant was entitled to sovereign immu-
nity, which deprived the court of subject matter jurisdiction, and that
the defendant was entitled to statutory immunity (§ 6-38a (b)) because
there was no evidence of wanton, reckless or malicious conduct on his
part. The court thereafter rendered judgment for the defendant, and the
plaintiff appealed to this court. Held:
1. The trial court improperly concluded that the defendant was entitled to
sovereign immunity, as state marshals are not state officials or public
officials, and, thus, the doctrine of sovereign immunity is not available as
a defense to an action against them for tortious conduct: the defendant’s
status as a state marshal is circumscribed by statute, as the legislature,
following the abolition of the system of sheriffs by constitutional amend-
ment and the passage of No. 99 of the 2000 Public Acts (P.A. 00-99),
specifically designated state marshals as independent contractors who
are compensated on a fee for service basis by agreement with an attor-
ney, court or public agency, and who may not be a state marshal and
a state employee at the same time, irrespective of the nature of the
party that secures their services; accordingly, in effectuating an order
of ejectment on behalf of the attorney representing the foreclosing
party, which, at its core, involved a dispute between private parties, the
defendant was not performing a sovereign function, and the mere fact
that his conduct involved the effectuation of a court order did not
change the essential character of the service performed; moreover, the
legislature’s intention that statutory immunity replace sovereign immu-
nity, which sheriffs who became state marshals would no longer enjoy,
was reflected in the incorporation of § 6-38a (b) in P.A. 00-99, as § 6-
38a (b) provides state marshals with limited immunity for certain tortious
acts in the performance of their execution and service of process func-
tions, and the legislature provided for indemnification pursuant to stat-
ute (§ 6-30a (b)) in the limited circumstances under which a state mar-
shal performs a function that retains a sovereign quality and has been
sued in his or her individual capacity.
2. The trial court properly determined that the defendant was entitled to
immunity pursuant to § 6-38a (b); nothing in the record raised a genuine
issue of material fact as to whether his actions were wanton, reckless
or malicious, the plaintiff’s reference to the defendant’s helpers using
their own pickup trucks to remove his belongings from the property in
no way supported his claim that the defendant acted improperly, and
no evidence substantiated the plaintiff’s claim that the conduct of the
defendant and his helpers amounted to theft.
3. The plaintiff’s assertion that the trial court improperly failed to address
a federal statutory (42 U.S.C. § 1983) claim he raised was unavailing
and this court declined to address it, as no such claim was alleged in
his complaint and, thus, it was not properly before the trial court.
Argued October 14, 2020—officially released September 14, 2021
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged violation of certain of the plaintiff’s con-
stitutional rights, and for other relief, brought to the
Superior Court in the judicial district of Waterbury,
where the court, Roraback, J., granted the defendant’s
motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
Karl Paul Vossbrinck, self-represented, the appellant
(plaintiff).
Nathan C. Favreau, with whom, on the brief, was
Joseph B. Burns, for the appellee (defendant).
Opinion
ELGO, J. The self-represented plaintiff, Karl Paul Vos-
sbrinck, appeals from the summary judgment rendered
by the trial court in favor of the defendant, Brian Hobart.
On appeal, the plaintiff claims that the court improperly
(1) concluded that the defendant, as a state marshal,
was entitled to sovereign immunity, (2) concluded that
the defendant was entitled to statutory immunity pursu-
ant to General Statutes § 6-38a (b),1 and (3) failed to
address his 42 U.S.C. § 1983 claim. We agree with the
plaintiff that the defendant was not entitled to sovereign
immunity. We nevertheless conclude that the court
properly determined that no genuine issue of material
fact exists as to whether the defendant is entitled to
statutory immunity under § 6-38a (b). Accordingly, we
affirm the judgment of the trial court.
The following facts and procedural history were set
forth by the trial court in its memorandum of decision or
otherwise are undisputed. The plaintiff owned a twenty-
four acre parcel of real property located at 487 Berk-
shire Road in Southbury (property). The property was
the subject of a foreclosure proceeding,2 and a judgment
of strict foreclosure was rendered on June 21, 2011.3 The
law day ultimately passed, and title vested in Accredited
Home Lenders, Inc. In his subsequent deposition testi-
mony in this action, the plaintiff admitted that he was
a party to the foreclosure action and had received cop-
ies of court orders from that action.
At all relevant times, the defendant was a state mar-
shal. On September 10, 2012, the defendant served an
order of ejectment on ‘‘the person(s) in possession’’ of
the property, as well as ‘‘the chief executive officer of
the town where the premises are situated.’’ On October
2, 2012, the defendant arrived at the property with mov-
ers and removed certain items of personal property and
possessions from the main house. Thereafter, Safeguard
Properties, LLC, the foreclosing party’s property man-
agement company, arrived to clear the yard and to haul
away additional items of personal property. According
to the plaintiff, certain items of his personal property
that had been removed were of significant value and
were unaccounted for. A considerable amount of the
plaintiff’s property remained on the premises after the
ejectment process had concluded, which the plaintiff
also alleged to be of great value. The remaining personal
property was not removed from the premises until 2014,
when it was liquidated by the foreclosing party’s attor-
ney. There allegedly has been no accounting for the
disposition of that personal property.
The plaintiff commenced the present action in 2015.
The plaintiff filed the operative complaint on May 6,
2016, in which he alleged, generally, that the defendant
stole, or allowed to be stolen, numerous items of his
personal property during the course of the ejectment.
Thus, as the plaintiff further alleged, the defendant
deprived him of his rights under 18 U.S.C. § 242, com-
mitted a civil conspiracy in violation of General Statutes
§ 53a-48, lacked standing to remove his property from
his residence, lacked the authority to remove him from
his home, committed larceny, was guilty of ‘‘unjust
enrichment and quantum meruit,’’ violated General Stat-
utes §§ 15-140c, 49-22, 50-10 and 54-33g, and violated the
Connecticut Unfair Trade Practices Act, General Stat-
utes § 42-110a et seq. Additionally, the plaintiff alleged
that he was entitled to replevin pursuant to General
Statutes § 52-515, and damages pursuant to General
Statutes §§ 52-529, 52-530 and 53a-121.
On June 5, 2018, the defendant filed what he termed
a ‘‘motion to dismiss and/or for summary judgment.’’
In that motion, the defendant asked the court to either
dismiss or render summary judgment in his favor on
all eighteen counts of the plaintiff’s complaint, claiming
both a lack of subject matter jurisdiction and that no
genuine issue of material fact existed, which entitled
him to judgment as a matter of law. In support thereof,
the defendant relied on the plaintiff’s deposition testi-
mony, an affidavit from the defendant, and certain court
filings from the underlying foreclosure action.
As the court noted in its memorandum of decision
on the defendant’s motion, ‘‘the plaintiff had not filed
any competent admissible evidence in opposition to
this motion that would either support his claims or
rebut the claims of the defendant’’ at the time the motion
initially was heard on September 4, 2018. The court,
sua sponte, gave the plaintiff until September 24, 2018,
to furnish any additional evidence that he wanted the
court to consider when ruling on the defendant’s
motion. In response, the plaintiff submitted three affida-
vits—two from his sons and a third from Alan Gordon,
a friend of the plaintiff. Read together, the affidavits
allege that, ‘‘after the defendant had completed the
ejectment process, a considerable amount of the plain-
tiff’s personal property had been removed from [the
property] and that substantial amounts of [the plain-
tiff’s] personal property still remained in the yard at
that address, much of which was strewn about the prop-
erty in disarray.’’
In his affidavit submitted in support of his motion,
the defendant averred that he removed only personal
property from the plaintiff’s main house, and that Safe-
guard Properties, LLC, was responsible for clearing the
yard and hauling away additional items located there.
The defendant further alleged that, after his work in
connection with the 2012 ejectment was complete, he
returned to the property on only one occasion to serve
eviction papers on a tenant who was living at that
address. Additionally, the defendant noted that the
plaintiff, in his deposition testimony, had acknowledged
that the defendant was acting pursuant to a Superior
Court order and that the defendant did not participate
in the 2014 disposal of his personal property.
In its memorandum of decision granting the defen-
dant’s motion for summary judgment, the court held
that the plaintiff’s affidavits lacked sufficient informa-
tion to create a genuine issue of fact with respect to
any of the claims in his complaint. The court also
explained that, in the alternative, ‘‘[e]ven if sufficient
evidence had been adduced to defeat a motion for sum-
mary judgment on any of these claims, the court would
nevertheless be compelled to dismiss this action for
lack of subject matter jurisdiction on the basis of sover-
eign immunity.’’ Citing § 6-38a (b), the court also con-
cluded that the defendant was entitled to statutory
immunity, stating that, ‘‘even if the defendant’s alleged
omission of failing to properly effectuate the transfer
of the entirety of the plaintiff’s substantial property to
storage was negligent, there has been no evidence to
show that any such failure was wanton, reckless or
malicious.’’ In a footnote, the court concluded that sov-
ereign immunity would ‘‘also’’ bar the plaintiff’s claims
under the test established in Spring v. Constantino,
168 Conn. 563, 568, 362 A.2d 871 (1975), stating: ‘‘Sub-
jecting the allegations in the complaint and the facts
adduced in connection with this motion to that [Spring]
analysis, this court concludes that the doctrine of sover-
eign immunity deprives the court of subject matter juris-
diction to adjudicate the plaintiff’s claims.’’
The court further noted that, even if sovereign immu-
nity did not operate as a bar to the plaintiff’s claims,
it still would have granted the defendant’s motion in
its entirety. The court addressed each of the claims in
the plaintiff’s complaint, explaining that many of the
statutes on which the plaintiff relied did not provide a
private cause of action and that the plaintiff did not
furnish any admissible evidence to support the other
claims. The court made no mention of 42 U.S.C. § 1983
in its decision and the plaintiff sought no articulation
in that regard. This appeal followed.
I
The plaintiff claims that the court improperly con-
cluded, as a matter of law, that sovereign immunity
barred his action against the defendant. The defendant
argues that he is a state official and, therefore, is entitled
to invoke sovereign immunity. We agree with the plain-
tiff.
‘‘[T]he doctrine of sovereign immunity implicates
subject matter jurisdiction and is therefore a basis for
granting a motion to dismiss. . . . A determination
regarding a trial court’s subject matter jurisdiction is a
question of law. When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in
the record.’’ (Citation omitted; internal quotation marks
omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d
549 (2003).
‘‘[W]e have long recognized the validity of the com-
mon-law principle that the state cannot be sued without
its consent . . . . We have also recognized that
because the state can act only through its officers and
agents, a suit against a state officer concerning a matter
in which the officer represents the state is, in effect,
against the state. . . . While the principle of sovereign
immunity is deeply rooted in our common law, it has,
nevertheless, been modified and adapted to the Ameri-
can concept of constitutional government where the
source of governmental power and authority is not
vested by divine right in a ruler but rests in the people
themselves who have adopted constitutions creating
governments with defined and limited powers and
courts to interpret these basic laws.’’ (Citations omitted;
internal quotation marks omitted.) Id. ‘‘Sovereign immu-
nity rests on the principle and on the hazard that the
subjection of the state and federal governments to pri-
vate litigation might constitute a serious interference
with the performance of their functions and with their
control over their respective instrumentalities, funds
and property.’’ (Internal quotation marks omitted.)
Id., 314.
Our analysis of whether sovereign immunity was
properly invoked in the present action begins with the
precedent of our Supreme Court in Spring v. Con-
stantino, supra, 168 Conn. 563. In that seminal case,
the court explained that Connecticut courts should con-
sider ‘‘the following criteria for determining whether
the suit is, in effect, one against the state and cannot
be maintained without its consent: (1) a state official
has been sued; (2) the suit concerns some matter in
which that official represents the state; (3) the state is
the real party against whom relief is sought; and (4)
the judgment, though nominally against the official, will
operate to control the activities of the state or subject
it to liability.’’4 (Internal quotation marks omitted.) Id.,
568. In addition, our Supreme Court set forth three
factors regarding the ‘‘essential characteristics’’ of a
‘‘public office,’’ which are whether the individual pos-
sesses ‘‘(1) an authority conferred by law, (2) a fixed
tenure of office, and (3) the power to exercise some
portion of the sovereign functions of government.’’
(Internal quotation marks omitted.) Id. The court fur-
ther emphasized that ‘‘[a] key element of this test is
that the ‘officer’ is carrying out a sovereign function.’’
Id., 569.
Whether state marshals are entitled to the protection
of sovereign immunity is a question of first impression
for the appellate courts of this state. Our analysis begins
with § 6-38a (a), which provides in relevant part: ‘‘For
the purposes of the general statutes, ‘state marshal’
means a qualified deputy sheriff incumbent on June
30, 2000, under section 6-38 or appointed pursuant to
section 6-38b who shall have authority to provide legal
execution and service of process in the counties in
this state pursuant to section 6-38 as an independent
contractor compensated on a fee for service basis,
determined . . . by agreement with an attorney,
court or public agency requiring execution or service
of process.’’ (Emphasis added.) By its plain language,
that statutory imperative indicates that state marshals
are not only independent contractors but also that their
services may be secured by attorneys representing pri-
vate entities, in addition to courts or public agencies.5
Notably, the court in Spring v. Constantino, supra,168 Conn. 563, did not actually apply the three factor
test it articulated in determining whether the public
defenders in question were public officials. Instead, the
court emphasized that ‘‘[a] key element of [the] test is
that the ‘officer’ is carrying out a sovereign function’’
and reasoned that, ‘‘[e]ven though the state must ensure
that indigents are represented by competent counsel,
it can hardly be argued that the actual conduct of the
defense of an individual is a sovereign or governmental
act. . . . The public defender when he represents his
client is not performing a sovereign function and is
therefore not a public or state official to whom the
doctrine of sovereign immunity applies.’’ Id., 569.6
Here, the record unequivocally indicates that the
defendant was effectuating an order of ejectment on
behalf of the attorney representing the foreclosing
party.7 Because that action, at its core, involved a dis-
pute between private parties, the defendant was not
performing a sovereign function. The mere fact that his
conduct involved the effectuation of a court order does
not change the essential character of the service per-
formed, which involved a judicial remedy sought by
private parties who secured his services. Moreover, we
are not persuaded that the defendant’s services would
assume the character of a sovereign function even if
public entities, like the Superior Court or a public
agency, retained them. Irrespective of the nature of
the party that secured a state marshal’s services, our
legislature plainly has indicated that state marshals are
independent contractors and similarly reiterated under
General Statutes § 6-38b (h) that ‘‘no person may be a
state marshal and a state employee at the same time.’’
Despite those unambiguous legislative pronounce-
ments, the defendant nonetheless attempts to assume
the cloak of the sovereign and its functions by arguing
that marshals are selected and regulated by the State
Marshal Commission pursuant to General Statutes § 6-
38f; that they may, under certain conditions, exercise
the power to arrest without a warrant pursuant to Gen-
eral Statutes § 54-1f; that they may use force incident
to an arrest pursuant to General Statutes § 53a-22 (b);
and contends that ‘‘state marshals are the state when
engaged in the performance of the executive branch’s
function of ejecting a person from property to which
they have no right of possession.’’ (Emphasis added.)
Relying on those assertions, a plethora of Superior
Court decisions,8 and Miller v. Egan, supra, 265 Conn.
301, the defendant insists that he is a state official,
notwithstanding the legislature’s explicit statutory des-
ignation of state marshals as independent contractors
who are not state employees. We are not persuaded.
As a preliminary matter, we note that the defendant’s
reliance on Miller v. Egan, supra, 265 Conn. 301, with
respect to his status as a public official is misplaced.
Although the parties in that case conceded that the
defendants, all former sheriffs, were public officials
pursuant to Spring,9 sheriffs at the time were not only
public officials but, more importantly, were constitu-
tional officers. See Conn. Const., art. IV, § 25 (‘‘[s]heriffs
shall be elected in the several counties’’ and removed
only by action of legislature); Bysiewicz v. DiNardo,
298 Conn. 748, 793, 6 A.3d 726 (2010) (‘‘[a] constitutional
office is understood to be one expressly named in and
created by [a] constitution, whereas a statutory office
is one created by legislation’’ (internal quotation marks
omitted)); Sibley v. State, 89 Conn. 682, 685, 96 A. 161(1915) (‘‘The rights, authority and duty thus conferred
upon the sheriff by law clearly invests him with a por-
tion of the sovereign power of the government to be
exercised by him for the public good. The office of
sheriff is thus a public office . . . .’’). The sheriff sys-
tem, however, was abolished by constitutional amend-
ment and the passage of No. 99 of the 2000 Public Acts
(P.A. 00-99) (‘‘An Act Reforming the Sheriff System’’).10
That legislation effected the transition from the sheriff
system to a system of state marshals, who are selected
and regulated by the State Marshal Commission, and
judicial marshals, who are employed by the Judicial
Branch. As such, nearly all of the responsibilities of
sheriffs with respect to service of process were trans-
ferred to the state marshals, while their responsibilities
with respect to courthouse security and the custody
and transportation of prisoners were transferred to the
judicial marshals.
Thus, in contrast to sheriffs, who indisputably were
elected public officials under the Connecticut constitu-
tion, the defendant’s status as a state marshal is circum-
scribed by statute. Following the abolition of the system
of sheriffs, the legislature specifically designated state
marshals as ‘‘independent contractor[s] compensated
on a fee for service basis, determined . . . by agree-
ment with an attorney, court or public agency requiring
execution or service of process’’; (emphasis added)
General Statutes § 6-38a (a); who may not ‘‘be a state
marshal and a state employee at the same time.’’ General
Statutes § 6-38b (h). By contrast, judicial marshals, now
employed by the Judicial Branch, became state employ-
ees. See Kim v. Emt, 153 Conn. App. 563, 569 n.4, 102
A.3d 137 (‘‘under our statutory scheme, judicial mar-
shals are considered separate and distinct from state
marshals, and are considered state employees of the
Judicial Branch under General Statutes §§ 6-32d (b)
and 6-32f (a)’’), cert. denied, 315 Conn. 908, 105 A.3d
236 (2014).
Our Supreme Court’s observations in Sibley v. State,
supra, 89 Conn. 682, also inform our analysis. Conclud-
ing that sheriffs were not state employees entitled to
benefits under the Workmen’s Compensation Act of
1913, the court drew a clear distinction between public
officers who exercise sovereign powers and state
employees. ‘‘[The plaintiff] was not an employee, and
. . . the [s]tate was not using his services for pay. He
was performing a duty which he owed to the [s]tate,
and the salary which was attached to the office was
not given in payment for his services but, as is said
concerning public officers . . . to enable him to per-
form his statutory duty as one of the public functionar-
ies of the [s]tate exercising a portion of its sovereign
powers. The [s]tate, like public municipal corporations
and private firms and individuals, may be, and is a large
employer of persons by contract. The [s]tate and the
person or persons whom it employs to care for the
lawns surrounding the capitol are as much employer
and employee as are the householder and the person
who is employed by him to mow his lawns; but no one
would say that the [g]overnor and other public officers
who exercise the sovereign powers of the [s]tate and
receive, as such officers, the salary attached by law to
their offices, are mere employees of the [s]tate. While
exercising those powers they represent the [s]tate. The
office is a trust and not an employment; the salary
attached is for the maintenance of the office and not
a payment for the incumbent’s services.’’ (Emphasis
added.) Id., 687–88. The court further observed that
‘‘[t]he office of sheriff is thus a public office . . . . The
incumbent of such an office holds it as a trust from the
[s]tate not resting upon contract. . . . He is a preserver
of the public peace; he is not the hired servant of a
master; no contract relation exists between him and
the community or [s]tate.’’11 (Citations omitted.) Id., 685.
In light of that precedent, we conclude that the
acknowledgment in Miller v. Egan, supra, 265 Conn.
301, that sheriffs were public officials simply has no
bearing on the status of state marshals. On the contrary,
the reforms instituted in 2000 that established the state
marshal system, coupled with the legislature’s explicit
designation of state marshals as independent contrac-
tors who are compensated on a fee for service basis,
illuminates the legislature’s intentions as to whether
service of process constitutes a sovereign act. When the
constitutional amendment abolishing the sheriff system
was passed, the status of sheriffs as constitutional pub-
lic officers effectively ended. Thus, the services ren-
dered by state marshals, which do not include the ser-
vices assumed by judicial marshals, are no longer
inherently sovereign acts. Although this is most appar-
ent when state marshals are effecting service on behalf
of private litigants, it is no less true when their services
are retained by a public agency. Thus, when the Office
of the Attorney General, for example, institutes a suit
and retains the services of a marshal for service of
process, the character of the service does not change
simply because a constitutional officer has secured
them.
Nor are we persuaded that the sovereign immunity
enjoyed by the State Marshal Commission; see Page v.
State Marshal Commission, 108 Conn. App. 668, 681,
950 A.2d 529, cert. denied, 289 Conn. 921, 958 A.2d 152(2008); which is a public agency, should be imputed to
the state marshals simply because the commission is
charged with the hiring and oversight of the state mar-
shals. The defendant has provided no authority that
suggests that oversight and regulation by a state agency
of persons or entities transforms the services rendered
into sovereign functions.
Although it is true that state marshals have the title
of peace officer and have the ability to effectuate an
arrest as well as other law enforcement type authority
in the course of their duties, peace officers, as defined
by General Statutes § 53a-3,12 are not limited to persons
acting on behalf of the state. Because they include local
and municipal officers as well as federal and tribal law
enforcement officers who are not entitled to invoke
state sovereign immunity, we are not persuaded that
the status of peace officer provides a sufficient basis
to conclude that one is a public official for purposes
of sovereign immunity.
Additionally, as we discuss further in part II of this
opinion, state marshals are entitled to a limited statu-
tory immunity from liability for certain tortious acts in
performance of their execution and service of process
functions under § 6-38a (b), which provides: ‘‘Any state
marshal, shall, in the performance of execution or ser-
vice of process functions, have the right of entry on
private property and no such person shall be personally
liable for damage or injury, not wanton, reckless or
malicious, caused by the discharge of such functions.’’
That provision was incorporated into P.A. 00-99,
reflecting the legislature’s intention to replace sover-
eign immunity, which state marshals would no longer
enjoy, with statutory immunity. That immunity is analo-
gous to but, importantly, distinct from the immunity
afforded to state officers and employees under General
Statutes § 4-165, which provides that ‘‘[n]o state officer
or employee shall be personally liable for damage or
injury, not wanton, reckless or malicious, caused in the
discharge of his or her duties or within the scope of
his or her employment,’’ and General Statutes § 5-141d,
which provides that ‘‘any state officer or employee’’
sued for damages accruing while in the performance
of their duties will be indemnified by the state for any
such award arising from conduct that is not wanton,
reckless, or malicious. These provisions offering state
employees statutory immunity and defense and indem-
nification are significant to our discussion for two rea-
sons. Because they are triggered when a state employee
is sued in his or her individual capacity, the legislature’s
decision to pass a separate but analogous provision for
statutory immunity for state marshals underscores the
underlying statutory scheme that (1) state marshals are
not public officials or state employees, and (2) they
cannot invoke sovereign immunity and, therefore, can
be sued only in their individual capacity.13
In the limited circumstances under which a state
marshal performs a function that retains a sovereign
quality, such as a civil capias arrest, and that state
marshal has been sued in his or her individual capacity,
our legislature specifically has provided for his or her
indemnification. Our legislature addressed that issue in
its 2007 amendment to General Statutes § 6-30a, which
now provides in relevant part in subsection (b) that
‘‘[t]he state shall protect and save harmless any state
marshal from financial loss and expense . . . arising
out of any claim, demand or suit instituted against the
state marshal for personal injury or injury to property
by . . . any person who is lawfully taken into custody
by the state marshal, pursuant to a capias issued by
. . . the Superior Court and directed to the state mar-
shal, if such injury occurs when such person, while in
such custody, is transported in a private motor vehicle
operated by the state marshal. In the event a judgment
is entered against the state marshal for a malicious,
wanton or wilful act, the state marshal shall reimburse
the state for any expenses incurred by the state in
defending the state marshal and the state shall not be
held liable to the state marshal for any financial loss
or expense resulting from such act.’’ (Emphasis added.)
General Statutes § 6-30a (b). Therefore, when state mar-
shals perform capias arrests, and injury to person or
property occurs during such an arrest, the state will
indemnify state marshals as a substitute for the sover-
eign immunity that they are not entitled to invoke.
In light of the foregoing, we disagree with the court’s
conclusion that state marshals are public officials for
sovereign immunity purposes. Because state marshals
are not state officials or state employees, the doctrine
of sovereign immunity is not available as a defense to
an action for tortious conduct against a state marshal.14
For that reason, the court improperly concluded that
the defendant was entitled to sovereign immunity.
II
The plaintiff also claims that the court improperly
concluded that the defendant was entitled to statutory
immunity pursuant to § 6-38a (b).15 More specifically,
he argues that the defendant’s ‘‘actions fall into the cat-
egory of wanton, reckless or malicious because he
ejected the plaintiff with the help of several persons,
some in their own pickup trucks, and those persons,
under the watchful eye of the defendant, took many
possessions of the plaintiff and kept them for them-
selves.’’ For that reason, he argues that summary judg-
ment was inappropriate. We disagree.
Our review of a trial court’s decision to grant a motion
for summary judgment is well settled. ‘‘Summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . Although the
party seeking summary judgment has the burden of
showing the nonexistence of any material fact . . . a
party opposing summary judgment must substantiate
its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . It is not enough,
however, for the opposing party merely to assert the
existence of such a disputed issue. Mere assertions of
fact . . . are insufficient to establish the existence of
a material fact and, therefore, cannot refute evidence
properly presented to the court [in support of a motion
for summary judgment].’’ (Citation omitted; internal
quotation marks omitted.) Home Ins. Co. v. Aetna Life
& Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001(1995).
In granting the defendant’s motion for summary judg-
ment on the basis of statutory immunity, the court
stated in relevant part: ‘‘[G]iving the plaintiff . . . the
benefit of any uncertainty, as required by law, the evi-
dence would at best support only a colorable claim for
negligence against the defendant. This is because even
if the defendant’s alleged omission of failing to properly
effectuate the transfer of the entirety of the plaintiff’s
substantial property to storage was negligent, there has
been no evidence to show that any such failure was
wanton, reckless or malicious.’’ (Emphasis added.) On
our careful review of the materials submitted by the
parties in connection with the defendant’s motion, we
agree that there is nothing in the record that raises a
genuine issue of material fact as to whether the defen-
dant’s actions were wanton, reckless, or malicious. The
plaintiff’s reference to the defendant’s ‘‘helpers’’ using
‘‘their own pickup trucks’’ in no way supports his claim
that the defendant acted improperly. Furthermore, the
plaintiff’s argument rests on his conclusion that the
conduct of the defendant and his helpers amounts to
theft.16 In the absence of any evidence to substantiate
that claim, we cannot conclude that the defendant’s
conduct was wanton, reckless, or malicious. Accord-
ingly, the court properly determined that the defendant
is entitled to statutory immunity pursuant to § 6-38a (b).
III
As a final matter, the plaintiff claims that the court
improperly failed to address his 42 U.S.C. § 1983 claim.
We disagree. No such claim was alleged in the plaintiff’s
complaint, and, thus, it was not properly before the
trial court. See, e.g., Miller v. Egan, supra, 265 Conn.
309 (plaintiff’s right to recover is limited by allegations
of complaint); West Hartford v. Murtha Cullina, LLP,
85 Conn. App. 15, 23 n.3, 857 A.2d 354 (declining to
address unpreserved claim that was ‘‘not contained in
the complaint and was not raised in the trial court’’),
cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal.’’ (Inter-
nal quotation marks omitted.) Guzman v. Yeroz, 167
Conn. App. 420, 426, 143 A.3d 661, cert. denied, 323
Conn. 923, 150 A.3d 1152 (2016). It is well established
that ‘‘[a] party cannot present a case to the trial court
on one theory and then seek appellate relief on a differ-
ent one . . . .’’ (Internal quotation marks omitted.)
Council v. Commissioner of Correction, 286 Conn. 477,
498, 944 A.2d 340 (2008). ‘‘[A]n appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level. . . . [B]ecause our review is
limited to matters in the record, we [also] will not
address issues not decided by the trial court.’’ (Citations
omitted; internal quotation marks omitted.) Burnham
v. Karl & Gelb, P.C., 252 Conn. 153, 170–71, 745 A.2d
178 (2000); see also Practice Book § 60-5. Because the
plaintiff failed to raise a § 1983 claim before the trial
court, we decline to address that claim in this appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 6-38a (b) provides: ‘‘Any state marshal, shall, in the
performance of execution or service of process functions, have the right of
entry on private property and no such person shall be personally liable for
damage or injury, not wanton, reckless or malicious, caused by the discharge
of such functions.’’
2
See Accredited Home Lenders, Inc. v. Vossbrinck, Superior Court, judi-
cial district of Waterbury, Docket No. CV-XX-XXXXXXX-S.
3
See Vossbrinck v. Eckert Seamans Cherin & Mellott, LLC, 301 F. Supp.
3d 381, 384 (D. Conn. 2018).
4
We are mindful of our recent decision in Devine v. Fusaro, 205 Conn.
App. 554, A.3d (2021), petition for cert. filed (Conn. July 29, 2021)
(No. 210124), in which this court clarified the proper purpose of the Spring
test. As we explained, ‘‘[o]ur Supreme Court has affirmed that the [Spring
test] is an appropriate mechanism . . . to determine the capacity in which
the named defendants are sued in actions asserting violations of state law
. . . . [W]e do not read the precedent of our Supreme Court to require a
court to apply the Spring test if the complaint unequivocally states the
capacity in which the defendant is sued. Indeed, closer examination of
Spring and our Supreme Court’s application of the Spring test . . . reveals
that the test is not well suited for and was never expressly intended to apply
to instances in which a plaintiff has made a clearly expressed election in
the complaint to sue a state official in his or her individual capacity.’’
(Citation omitted; internal quotation marks omitted.) Id., 568. For that rea-
son, we concluded that ‘‘a court’s application of the Spring test is unneces-
sary and ill-advised in a case . . . in which the plaintiff has expressed a
clear and unambiguous choice in the operative complaint to sue a state
official in his or her individual capacity. In such cases, the doctrine of
sovereign immunity simply is not implicated.’’ Id., 563.
Unlike in Devine, the complaint in the present case does not contain ‘‘a
clearly expressed election . . . to sue a state official in his or her individual
capacity.’’ Id., 568. Rather, the plaintiff alleged in relevant part that the
defendant had improperly ‘‘used authority vested in him by the state of
Connecticut’’ in his capacity as a state marshal. In response, the defendant
alleged sovereign immunity as a special defense, claiming that he is a state
official entitled to raise that doctrine as a shield from claims against him
in his official capacity. See Shay v. Rossi, 253 Conn. 134, 162, 749 A.2d 1147(2000), overruled in part on other grounds by Miller v. Egan, 265 Conn.
301, 828 A.2d 549 (2003). We, therefore, must apply the Spring test to
determine, in the first instance, whether the defendant is entitled to invoke
the protections embodied in the doctrine of sovereign immunity. See Sullins
v. Rodriguez, 281 Conn. 128, 136, 913 A.2d 415 (2007); Devine v. Fusaro,
supra, 205 Conn. App. 568.
5
Moreover, the statutory framework outlining the fee schedule for various
services provided by state marshals delineates separate provisions with
respect to those distinct entities. For example, General Statutes § 52-261
(a) provides in relevant part: ‘‘Except as provided in subsection (b) of this
section and section 52-261a, each officer or person who serves process,
summons or attachments on behalf of . . . (1) [a]n official of the state or
any of its agencies, boards or commissions, or any municipal official acting
in his or her official capacity, shall receive a fee of not more than thirty
dollars for each process served . . . .’’
Similarly, pursuant to General Statutes § 52-261a (a), ‘‘[a]ny process served
by any officer or person for the Judicial Department or Division of Criminal
Justice shall be served in accordance with the following schedule of fees
. . . .’’
In contrast, § 52-261 (a) provides in relevant part that each officer or
person who serves process, summons or attachments on behalf of (2) ‘‘any
person, except a person described in subdivision (1) of this subsection,
shall receive a fee of not more than forty dollars for each process served
and an additional fee of forty dollars for the second and each subsequent
service of such process . . . .’’ (Emphasis added.)
As the previously discussed statutory provisions demonstrate, state mar-
shals, as independent contractors, provide services for fees at varying rates
set by statute relative to these distinct classifications, including private
persons and entities.
6
In Gross v. Rell, 304 Conn. 234, 248 n.7, 40 A.3d 240 (2012), the court
noted that, in 1976, ‘‘the legislature, through the enactment of Public Acts
1976, No. 76-371, §§ 1 and 2, added public defenders to the definition of ‘state
officers and employees’ entitled to qualified statutory sovereign immunity
pursuant to General Statutes § 4-165.’’ As such, the court recognized that
the holding in Spring v. Constantino, supra, 168 Conn. 576, that public
defenders are not entitled to absolute quasi-judicial immunity, which was
another theory advanced by the defendant, was superseded by statute.
7
The ‘‘Application and Execution for Ejectment Mortgage Foreclosure’’
was made by Attorney Geraldine A. Cheverko on behalf of the foreclosing
party and the entity entitled to possession, Deutsche Bank National Trust
Company, as Indenture Trustee, on behalf of the holders of the Accredited
Mortgage Loan Trust 2005-4.
8
See Brenner, Saltzman & Wallman, LLP v. Tony’s Long Wharf Transpor-
tation, LLC, Superior Court, judicial district of New Haven, Docket No.
CV-XX-XXXXXXX (November 26, 2012) (55 Conn. L. Rptr. 68); McAllister v.
Valentino, Superior Court, judicial district of Fairfield, Docket No. CV-11-
5029414-S (April 10, 2012) (53 Conn. L. Rptr. 796); Mason v. Barbieri, Supe-
rior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S (April
14, 2010); International Motorcars, LLC v. Sullivan, Superior Court, judicial
district of New Britain, Docket No. CV-XX-XXXXXXX (June 20, 2006) (41 Conn.
L. Rptr. 559).
9
Notably, at issue in Miller was whether the sheriffs were being sued in
their official or individual capacity, the latter of which would not bar suit
on the basis of sovereign immunity. Because the court held that, pursuant
to Spring, the plaintiff asserted his claims against the individual defendants
in their official capacities, and no exception to or waiver of sovereign
immunity applied, those claims were barred by the doctrine of sovereign
of immunity. Miller v. Egan, supra, 265 Conn. 301; see also Devine v. Fusaro,
supra, 205 Conn. App. 554.
10
Article thirty, § 1, of the constitution of Connecticut, adopted November
29, 2000, repealed § 25 of article fourth of the constitution of Connecticut.
11
See also Rogers v. County Commissioners, 18 Conn. Supp. 401, 403
(1953) (‘‘A sheriff of a county is a public officer. . . . He holds his office,
not as an ‘employee’ under contractual relation, but as a public official
under trust from the state, which has invested him with a portion of its
sovereign power to be exercised in the interest of the public. . . . A deputy
sheriff holds an appointment as distinguished from an employment, and is
a public officer. . . . Deputies have the same powers as has their county
sheriff.’’ (Citations omitted.)).
12
General Statutes § 53a-3 (9) defines ‘‘ ‘Peace officer’ ’’ as ‘‘a member of
the Division of State Police within the Department of Emergency Services
and Public Protection or an organized local police department, a chief
inspector or inspector in the Division of Criminal Justice, a state marshal
while exercising authority granted under any provision of the general stat-
utes, a judicial marshal in the performance of the duties of a judicial marshal,
a conservation officer or special conservation officer, as defined in section
26-5, a constable who performs criminal law enforcement duties, a special
policeman appointed under section 29-18, 29-18a or 29-19, an adult probation
officer, an official of the Department of Correction authorized by the Com-
missioner of Correction to make arrests in a correctional institution or
facility, any investigator in the investigations unit of the office of the State
Treasurer, an inspector of motor vehicles in the Department of Motor Vehi-
cles, who is certified under the provisions of sections 7-294a to 7-294e,
inclusive, a United States marshal or deputy marshal, any special agent of
the federal government authorized to enforce the provisions of Title 21 of
the United States Code, or a member of a law enforcement unit of the
Mashantucket Pequot Tribe or the Mohegan Tribe of Indians of Connecticut
created and governed by a memorandum of agreement under section 47-
65c who is certified as a police officer by the Police Officer Standards and
Training Council pursuant to sections 7-294a to 7-294e, inclusive . . . .’’
13
We note that, following the passage of P.A. 00-99, § 6-38a (b) buttressed
other preexisting provisions of the statutory scheme that ensured that mem-
bers of the public had a remedy when state marshals were individually sued
for tortious conduct.
General Statutes § 6-30a (a) provides in relevant part: ‘‘On and after
December 1, 2000, each state marshal shall carry personal liability insurance
for damages caused by reason of such marshal’s tortious acts in not less
than the following amounts: (1) For damages caused to any one person or
to the property of any one person, one hundred thousand dollars; and (2)
for damages caused to more than one person or to the property of more
than one person, three hundred thousand dollars. . . .’’
That provision first was enacted in 1976 with respect to the former sheriffs
and was amended by P.A. 00-99 with no changes, save the replacement of
all references to sheriff with state marshal.
By its plain language, § 6-30a recognizes that a state marshal may cause
damage in the performance of his or her duties, and it ensures that insurance
coverage is available to protect any party injured by virtue of a state marshal’s
tortious conduct. In considering whether that provision should operate as
a waiver of the state’s sovereign immunity, the court in Miller v. Egan,
supra, 265 Conn. 301, explained: ‘‘We fail to see how a requirement that
sheriffs and deputy sheriffs purchase personal liability insurance necessar-
ily implies that the legislature intended to waive the state’s sovereign immu-
nity, either from suit or liability, under § 6-30a. In fact, the opposite inference
makes more sense, namely, that the legislature intended the individual sher-
iffs and deputy sheriffs, rather than the state, to bear liability for the conduct
covered by the statute. This conclusion is bolstered by the statute’s definition
of ‘tortious acts’ as ‘negligent acts, errors or omissions for which such sheriff
or deputy sheriff may become legally obligated . . . .’ General Statutes
(Rev. to 1999) § 6-30a.’’ (Emphasis altered.) Id., 329–30.
The court in Miller also reviewed the legislative history of § 6-30a. During
the floor discussion of Public Acts 1976, No. 76-15, which eventually became
§ 6-30a, Representative Richard D. Tulisano, a member of the Judiciary
Committee, which had sponsored the legislation, explained the purpose of
the act: ‘‘We want to make sure that the public is protected from any acts
which the sheriff may incur in the event that he does not have personal
assets of his own to cover either misservice of process, assault or battery
or any other [of] those items listed in the statute.’’ 19 H.R. Proc., Pt. 2, 1976
Sess., p. 494. When Representative Gerald F. Stevens asked whether it was
‘‘the intention of this legislation that no state funds be expended for the
purchase of such insurance or for reimbursement of sheriffs,’’ Representative
Tulisano replied: ‘‘[I]t is absolutely the intention of this bill to have it be a
personal liability of the sheriff and not the state.’’ (Emphasis added.) Id.,
p. 495; see also Miller v. Egan, supra, 265 Conn. 301, 329–30 (discussing
legislative history). The General Assembly’s reenactment of § 6-30a in 2000,
which replaced only references to ‘‘sheriffs’’ with ‘‘marshals,’’ further demon-
strates that the General Assembly intended state marshals to be personally
liable for damages caused by their tortious conduct and instituted an insur-
ance requirement for the protection of the public.
Moreover, General Statutes § 6-39 provides in relevant part that, ‘‘[e]ach
state marshal, before entering upon the duties of a state marshal, shall give
to the State Marshal Commission a bond in the sum of ten thousand dollars
conditioned that such state marshal will faithfully discharge the duties of
state marshal and answer all damages which any person sustains by reason
of such state marshal’s unfaithfulness or neglect. . . .’’
The requirement that state marshals post a bond before entering upon
their duties is independent from the insurance requirement, and it reinforces
our conclusion that state marshals are not public officials, and, therefore,
they may be sued only in their individual capacities.
14
We are mindful that this conclusion is at odds with a line of Superior
Court cases, including Brenner, Saltzman & Wallman, LLP v. Tony’s Long
Wharf Transportation, LLC, Superior Court, judicial district of New Haven,
Docket No. CV-XX-XXXXXXX (November 26, 2012) (55 Conn. L. Rptr. 68),
McAllister v. Valentino, Superior Court, judicial district of Fairfield, Docket
No. CV-XX-XXXXXXX-S (April 10, 2012) (53 Conn. L. Rptr. 796), Mason v.
Barbieri, Superior Court, judicial district of Waterbury, Docket No. CV-08-
5011263-S (April 14, 2010), and International Motorcars, LLC v. Sullivan,
Superior Court, judicial district of New Britain, Docket No. CV-XX-XXXXXXX
(June 20, 2006) (41 Conn. L. Rptr. 559). See footnote 8 of this opinion. To
the extent that those cases concluded that state marshals are state employees
or officials for purposes of a sovereign immunity analysis, we disavow
those holdings.
15
See footnote 1 of this opinion.
16
In his appellate brief, the plaintiff states that ‘‘[t]he real issue before
this court is to decide if the theft of more than $100,000 worth of the
plaintiff’s belongings constitute[s] wanton, reckless or malicious behavior.’’