Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. , 327 Conn. 467 ( 2018 )

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CORSAIR SPECIAL SITUATIONS
FUND, L.P. v. ENGINEERED
FRAMING SYSTEMS,
INC., ET AL.
(SC 19953)
Rogers, C. J., and Palmer, McDonald,
Robinson and D’Auria, Js.
Syllabus
Pursuant to statute (§ 52-261 [a] [F]), a state marshal is entitled to a fee of
15 percent of the amount of the execution ‘‘for the levy of an execution,
when the money is actually collected and paid over, or the debt . . .
is secured by the officer . . . .’’
The plaintiff obtained a judgment of more than $5 million against four
defendants in a federal district court in Maryland and, in attempting to
enforce that judgment, discovered that one of the defendant judgment
debtors, D, had signed a contract with a third party, N Co., from Connecti-
cut, entitling D to the payment of more than $3 million. On the basis
of that information, the plaintiff obtained a writ of execution to enforce
its judgment in the United States District Court for the District of Con-
necticut that required N Co. to deliver to the marshal the amount of
the debt it owed to D. The plaintiff engaged a Connecticut state marshal,
P, to serve the writ on N Co. Although P timely and properly served
the writ, N Co. ignored the writ and paid D and another creditor
$2,308,504. The plaintiff obtained an order from the District Court direct-
ing N Co. to turn over $2,308,504 to the plaintiff. N Co. appealed from
that order, which was upheld by the Second Circuit Court of Appeals.
When the plaintiff and P could not reach an agreement on the amount
of P’s fee for serving the writ, P intervened in the plaintiff’s action,
claiming that, pursuant to § 52-261, he was entitled to a fee of 15 percent
of the amount of the execution, not the $30 flat fee the plaintiff claimed
that P was due. Reasoning that the levy of an execution under § 52-261
was established through P’s constructive seizure of the money via the
properly executed writ, the District Court ordered the plaintiff to pay
P a fee of $346,275.60. The plaintiff appealed to the Second Circuit,
which determined that § 52-261 was ambiguous as applied to the facts
of the present case and certified to this court the questions of whether
P was entitled to a 15 percent fee under § 52-261 (a) (F) and whether,
in making that determination, it matters that the writ was ignored and
that the money that was the subject of the writ was procured only after
the plaintiff, not P, pursued further enforcement proceedings in the
courts. Held that, because P levied the execution, he was entitled to a
15 percent fee under the terms of § 52-261 (a) (F) even though the
money was not paid directly to P but was procured only after the plaintiff
pursued further enforcement proceedings: after determining that the
statutory text of § 52-261 (a) (F) was ambiguous, this court applied
settled rules of statutory construction, rules of grammar and common
sense, and looked to the genealogy of the statute in concluding that the
phrase ‘‘by the officer’’ in § 52-261 (a) (F) applied only to the condition
that the debt be secured, and in concluding that, when an execution is
levied on a debt owed that is in the possession of a third party, construc-
tive seizure is effectuated when the writ of execution is properly served
on, and the demand of payment is made to, the third party; the District
Court found that P had properly served the writ on N Co., as a legal
consequence of N Co.’s knowing violation of that writ in paying the
debt to D and another creditor rather than directly to P, the plaintiff
had the right to seek a turnover order from the District Court that
resulted in N Co.’s obligation to pay more than $2 million to the plaintiff,
P’s proper service and demand were essential predicates to the recovery
of that debt, and, as a result of the writ of execution and subsequent
turnover order premised on N Co.’s violation of the writ, the money
referred to in the writ was collected from N Co. and paid over to the
plaintiff, and, thus, all of the statutory predicates to P’s entitlement to
the 15 percent fee were satisfied.
Argued October 20, 2017—officially released January 2, 2018
Procedural History
Application for a writ of execution to enforce a judg-
ment rendered against the defendants in the United
States District Court for the District of Maryland,
brought to the United States District Court for the Dis-
trict of Connecticut, where the court, Hall, J., granted
the plaintiff’s motion for a turnover order for funds paid
to or on behalf of the defendant EFS Structures, Inc.;
thereafter, the court, Hall, J., granted the motion to
intervene and for fees filed by Mark A. Pesiri, and the
plaintiff appealed to the United States Court of Appeals
for the Second Circuit, Sack and Raggi, Js., with Leval,
J., concurring, which certified certain questions of law
to this court concerning whether the intervenor was
entitled to certain fees.
Matthew S. Sturtz, pro hac vice, with whom were
Paul G. Ryan and, on the brief, Gregory J. Spaun, for
the appellant (plaintiff).
Neal L. Moskow, with whom, on the brief, was Debo-
rah M. Garskof, for the appellee (intervenor).
Opinion
McDONALD, J. The United States Court of Appeals
for the Second Circuit sought this court’s advice as to
whether a Connecticut state marshal is entitled to the
statutory fee of 15 percent on the amount of the execu-
tion ‘‘for the levy of an execution, when the money is
actually collected and paid over, or the debt . . . is
secured by the officer’’; General Statutes § 52-261 (a)
(F);1 when the marshal properly served the writ of exe-
cution on a third party holding a debt owed to the
judgment debtor, but the judgment creditor received
money from the third party only after a court issued a
turnover order.
Pursuant to General Statutes § 51-199b (d), we
accepted certification on the following questions from
the Second Circuit:
‘‘(1) Was [intervenor Connecticut State] Marshal
[Mark A.] Pesiri entitled to a [15] percent fee under the
terms of [§ 52-261 (a) (F)]?
‘‘(2) In answering the first question, does it matter
that the writ was ignored and that the monies that were
the subject of the writ were procured only after the
judgment creditor, not the marshal, pursued further
enforcement proceedings in the courts?’’ Corsair Spe-
cial Situations Fund, L.P. v. Engineered Framing Sys-
tems, Inc., 863 F.3d 176, 183 (2d Cir. 2017).
We answer the first question: Yes. We answer the
second question: No.
The Second Circuit’s order sets forth the following
facts that provide the backdrop to these issues. In the
United States District Court for the District of Maryland,
the plaintiff, Corsair Special Situations Fund, L.P.,
obtained a judgment of more than $5 million jointly and
severally against four defendants (judgment debtors).
See id., 177. While attempting to enforce its judgment,
Corsair learned that one of the judgment debtors had
signed a contract with a Connecticut based third party,
National Resources,2 entitling that judgment debtor to
a payment of more than $3 million. See id., 178. On the
basis of that information, Corsair caused its judgment
to be certified for registration in another district and
thereafter enrolled its judgment in the United States
District Court for the District of Connecticut, which
issued a writ of execution. See id.
Corsair then engaged Pesiri, a Connecticut state mar-
shal, to serve the writ of execution on National
Resources. See id. That writ stated in relevant part:
‘‘ ‘Pursuant to [General Statutes] § 52-356a, you are
required to deliver to the [marshal] property in your
possession owned by the judgment debtor or pay to
the marshal the amount of a debt owed by you to the
judgment debtor, provided, if the debt owed by you is
not yet payable, payment shall be made to the marshal
when the debt becomes due within four months after
the date of issuance of this execution.’ ’’ Id.
Pesiri timely and properly served the writ on National
Resources on September 30, 2011. National Resources
not only ignored the writ, but, between October 3, 2011,
and November 25, 2012, it paid Corsair’s judgment
debtor and another of its creditors $2,308,504. See id.
Following protracted postjudgment discovery, Corsair
obtained an order from the District Court commanding
National Resources to turn over $2,308,504 to Corsair.
See id. National Resources appealed from the order,
which was affirmed by the Second Circuit. See Corsair
Special Situations Fund, L.P. v. Engineered Framing
Systems, Inc., 595 Fed. Appx. 40 (2d Cir. 2014).
As the dispute between Corsair and National
Resources was drawing to a close, a dispute arose
between Corsair and Pesiri regarding Pesiri’s fee. Pesiri
moved to intervene in the action, claiming a right to
the statutory fees under § 52-261 (a) (F) for levying an
execution. See Corsair Special Situation Funds, L.P.
v. Engineered Framing Systems, Inc., supra, 863 F.3d
178. Pesiri claimed that Corsair had expressed an inten-
tion to pay him only the flat fee for service of process,
when he was owed 15 percent of the amount of the
execution that had been paid to Corsair. See id., 179.
Thus, Corsair claimed Pesiri was owed $30, plus mile-
age, whereas Pesiri claimed that he was owed
$346,275.60. The District Court granted Pesiri’s motion
to intervene and ruled in his favor, ordering Corsair to
pay Pesiri $346,275.60 in fees. See id. The court rea-
soned that the ‘‘levy of an execution’’ under § 52-261
was established through Pesiri’s constructive seizure
of the money by way of the properly executed writ.
See id.
Corsair appealed from the order to the Second Cir-
cuit. That court examined the few Connecticut cases
addressing this subject, none of which directly
addressed the particulars of the present case, surveyed
the statutory scheme, and determined that § 52-261 is
ambiguous as applied to the facts of the present case.
See id., 179–82. Two members of the panel viewed the
term ‘‘levy’’ to be ambiguous as to whether it requires
an actual or constructive seizure of the money/debt.
See id., 182. They were troubled by the large fee in
relation to Pesiri’s efforts and by the prospect that the
District Court’s construction could ‘‘encourage a levy-
ing officer to do no more than serve a writ of execution
with the hope that this will be credited as the ‘levy of
an execution’ and rewarded accordingly.’’ Id. A third
member of the panel agreed with the District Court’s
construction of ‘‘levy of an execution’’ but found ambi-
guity elsewhere. That judge questioned whether the
subsequent phrase in § 52-261 (a) (F), requiring action
‘‘by the officer,’’ might modify both of the alternative
conditions precedent to payment of the fee. See id., 186
(Leval, J., concurring). Accordingly, the Second Circuit
certified the two questions to this court.
To answer those questions, we begin with the statu-
tory text. Section 52-261 governs the payment of fees
and expenses of officers serving process or performing
other duties. After providing flat fees for process served,
the statute provides in relevant part: ‘‘The following
fees shall be allowed and paid . . . for the levy of an
execution, when the money is actually collected and
paid over, or the debt or a portion of the debt is secured
by the officer, fifteen per cent on the amount of the
execution, provided the minimum fee for such execu-
tion shall be thirty dollars . . . .’’ General Statutes § 52-
261 (a) (F). We agree with the Second Circuit’s conclu-
sion that the statute is ambiguous as applied to the facts
of the present case. Therefore, we are not constrained
in our review by the plain meaning rule codified in
General Statutes § 1-2z. Nonetheless, our objective is
to ascertain the legislature’s intention, applying settled
rules of statutory construction. See, e.g., Lieberman v.
Aronow, 319 Conn. 748, 756–57, 127 A.3d 970 (2015);
In re Tyriq T., 313 Conn. 99, 104–105, 96 A.3d 494 (2014).
We begin with the meaning of the phrase ‘‘levy of
an execution.’’ As our Appellate Court previously has
recognized; see Nemeth v. Gun Rack, Ltd., 38 Conn.
App. 44, 52–53, 659 A.2d 722 (1995); it is generally
accepted that a levy of an execution may be satisfied
by a constructive seizure of the property that is the
subject of the execution. See 30 Am. Jur. 2d 202, Execu-
tions and Enforcement of Judgments § 192 (2005) (‘‘A
levy on personal property is generally defined as a sei-
zure of the property. Thus, in most jurisdictions, it is
essential to the completion of a levy of execution upon
personal property that there be a seizure, either actual
or constructive, of the property.’’ [Footnote omitted.]);
Ballentine’s Law Dictionary (3d Ed. 1969) p. 728 (‘‘At
common law a levy on goods consisted of an officer’s
entering the premises where they were and either leav-
ing an assistant in charge of them or removing them
after taking an inventory. Today courts differ as to what
is a valid levy, but by the weight of authority there must
be an actual or constructive seizure of the goods.’’).
What constitutes a constructive seizure under our
law depends on the circumstances, i.e., the nature of
what is to be seized and from whom it is to be seized. See
General Statutes § 52-356a (a) (setting forth procedures
for execution against nonexempt personal property and
levying officer’s responsibilities).3 Those circumstances
dictate the levying officer’s authority, set forth in the
writ of execution. When levying an execution on debt
owed that is in the possession of a third party, construc-
tive seizure is effectuated when the writ of execution
is properly served on, and the demand of payment made
to, the third party, provided that the debt has or will
mature within the statutory term. See General Statutes
§ 52-356a (a) (4) (B). Compliance with such conditions
establishes that the marshal has undertaken all of the
measures legally available to the marshal to levy the
execution. Cf. General Statutes § 52-356a (a) (4) (A)
(requiring levying officer, upon failure of judgment
debtor to make immediate payment upon demand, to
levy on and take possession of nonexempt personal
property in possession of judgment debtor if accessible
without breach of peace). By so doing, the marshal
has exposed the third party to legal consequences for
noncompliance with the writ. See General Statutes § 52-
365a (a) (5) (recognizing right of action against third
party); see also 30 Am. Jur. 2d 573, Executions § 221
(1967) (‘‘[g]enerally, it may be stated that a levy under
a writ of execution to enforce a judgment for money
is an act of dominion over specific property by an
authorized officer of the court . . . which results in
the creation of a legal right to subject the debtor’s
interest in the property to the satisfaction of the debt
of his judgment creditor, to the exclusion of others
whose rights are inferior’’).
The proper service of the writ of execution alone,
however, does not entitle the marshal to the statutory
commission. Proper service of the writ of execution
entitles the marshal to a statutory flat fee. Compare
General Statutes § 52-261 (a) (1) and (2) (providing $30
and $40 fee, respectively, for process served). The right
to the commission fee accrues only after either of two
conditions is satisfied: ‘‘when the money is actually
collected and paid over, or the debt or a portion of the
debt is secured by the officer . . . .’’ General Statutes
§ 52-261 (a) (F). We therefore turn to the question of
whether the phrase ‘‘by the officer’’ modifies the former,
as well as the latter, condition.
Construing the phrase ‘‘by the officer’’ to apply only
to the latter condition is supported by rules of grammar,
the genealogy of the statute, and simple common sense.
Under the last antecedent rule, ‘‘[r]eferential and quali-
fying words and phrases, where no contrary intention
appears, refer solely to the last antecedent. The last
antecedent is the last word, phrase, or clause that can
be made an antecedent without impairing the meaning
of the sentence.’’ (Footnote omitted; internal quotation
marks omitted.) 2A N. Singer & J. Singer, Sutherland
Statutory Construction (7th Ed. 2007) § 47:33, pp.
487–89; see, e.g., Foley v. State Elections Enforcement
Commission, 297 Conn. 764, 786, 2 A.3d 823 (2010)
(applying rule); LaProvidenza v. State Employees’
Retirement Commission, 178 Conn. 23, 27, 420 A.2d
905 (1979) (same). There is not clear evidence of a
contrary intention in the statutory text, as ‘‘collected’’
may refer to the debtor/third party from whom the
money is being collected or the person collecting the
money. Moreover, had the legislature intended for ‘‘by
the officer’’ to apply to the first condition as well, it
could have expressed such an intention more clearly
by inserting a comma between the second condition
and that phrase (when the money is actually collected
and paid over, or the debt or a portion of the debt is
secured, by the officer).
Application of the last antecedent rule also is con-
firmed by a review of predecessors of § 52-261. For
more than a century, the statute provided for the fee
‘‘when the money is actually collected and paid over,
or the debt secured by the officer to the acceptance of
the creditor . . . .’’ (Emphasis added.) General Stat-
utes (1902 Rev.) § 4850; accord General Statutes (Rev.
to 2001) § 52-261 (a) (6). It is clear that the italicized
phrase would not have applied to the first condition.
That phrase necessarily reflected that the officer exer-
cises some discretion in the means or manner by which
the debt is secured. The officer exercises no similar
discretion when money is collected from the third party
or debtor; the officer merely accepts the money that is
provided.4 Accordingly, if the phrase ‘‘to the acceptance
of the creditor’’ did not modify the first condition, then
the preceding phrase ‘‘by the officer’’ similarly would
not modify that condition. Although the legislature
recently excised the phrase ‘‘to the acceptance of the
creditor’’ from the statute; Public Acts 2003, No. 03-
224, § 10; it gave no indication that this change was
intended to expand application of the phrase ‘‘by the
officer’’ to the collection of money or that it understood
the previous statute to have such a meaning. See 46
H.R. Proc., Pt. 17, 2003 Sess., p. 5443, remarks of Repre-
sentative Michael P. Lawlor (explaining that proposed
changes ‘‘will make it easier for the marshals to carry
out their responsibilities and for the [State Marshal]
Commission to conduct the oversight that is called for
under the reforms of a number of years ago’’).
Finally, common sense dictates that we should not
construe the statute to limit the fee to only those circum-
stances in which the marshal has personally collected
the money and paid it over to the creditor, as Corsair
suggests. See Christopher R. v. Commissioner of Men-
tal Retardation, 277 Conn. 594, 608–609, 893 A.2d 431
(2006) (‘‘[i]n construing a statute, common sense must
be used and courts must assume that a reasonable and
rational result was intended’’ [internal quotation marks
omitted]). Granted, in the present case, National
Resources knowingly disobeyed the writ not only in its
failure to pay the money to Pesiri, but also in its transfer
of the money levied upon to someone other than Cor-
sair. However, Corsair’s construction of the statute also
would deprive a levying officer of the statutory commis-
sion if the third party violated the order in the writ by
paying the levied upon funds directly to the creditor
instead of the officer, whether mistakenly or intention-
ally. See, e.g., Fair Cadillac Oldsmobile Corp. v. Allard,
41 Conn. App. 659, 660, 677 A.2d 462 (1996) (after sheriff
levied bank execution, bank paid funds directly to credi-
tor, instead of to sheriff, at direction of creditor);5 see
also Masayda v. Pedroncelli, Docket No. CV-94-
01200878-S, 1998 WL 420779, *1 (Conn. Super. July 20,
1998) (after deputy sheriff served bank execution, judg-
ment debtor paid judgment creditor from source other
than bank account). Under Corsair’s interpretation of
the statutory scheme, the officer would not be entitled
to the fee, even though the creditor received the benefit
of the officer’s service because the third party’s obliga-
tion to the judgment creditor arose only as a result of
the proper service of the writ of execution. Corsair’s
construction would create an incentive for judgment
creditors to circumvent the statutory commission, a
process that could inure to the benefit of both creditor
and debtor by an agreement to reduce the debt by an
amount less than the 15 percent fee in exchange for
direct payment.6 Our courts previously have applied
common sense constructions to the facts of a given
case involving the levy of an execution when a possible
reading of the statute would have yielded a result that
the legislature reasonably could not have intended. See
Preston v. Bacon, 4 Conn. 471, 479–80 (1823) (sheriff
entitled to fee when sheriff had substantially performed,
and agreement by creditor and debtor’s attorney pre-
vented sheriff from completing final action statute
required to be entitled to fee);7 Nemeth v. Gun Rack,
Ltd., supra, 38 Conn. App. 54–55 (applying expansive
interpretation of time limitation for applying for turn-
over order when facts made it impossible for judgment
creditor to commence and complete levy on goods
within period prescribed, and creditor had done every-
thing that could reasonably be required under statute).
‘‘The unreasonableness of the result obtained by the
acceptance of one possible alternative interpretation
of an act is a reason for rejecting that interpretation in
favor of another which would provide a result that is
reasonable.’’ (Internal quotation marks omitted.) Con-
nelly v. Commissioner of Correction, 258 Conn. 394,
407, 780 A.2d 903 (2001).
The requirements that we have articulated were met
in the present case. The District Court found that Pesiri
had properly served the writ of execution on National
Resources. As a legal consequence, when National
Resources knowingly violated the writ by paying the
debt to the judgment debtor rather than to the marshal,
Corsair had the right to seek a turnover order. That
order resulted in National Resources having to pay more
than $2 million to Corsair even though National
Resources already had paid the judgment debtors. Pes-
iri’s proper service and demand were essential predi-
cates to recovery of that debt, a fact made evident
by Corsair’s own statements in its application for, and
memorandum in support of, the turnover order. There-
fore, under the facts of the present case, Pesiri levied
the execution.
As a result of the writ of execution and subsequent
turnover order premised on the violation of the writ,
the money described in the writ of execution was ‘‘col-
lected’’ from National Resources and ‘‘paid over’’ to
Corsair. Hence, all of the statutory predicates to entitle-
ment to the statutory commission ultimately were sat-
isfied.
We recognize that Corsair would not have been paid
but for its substantial additional efforts, and that Pesiri
undertook no further risk or efforts than he would have
had the money never been collected from National
Resources. However, marshals have exposure to sub-
stantial liability for improper or ineffective service of
the writ, as such actions may deprive the judgment
creditor of the ability to collect on the debt.8 See General
Statutes § 6-30a (a) (requiring state marshals to carry
personal liability insurance for damages caused by rea-
son of marshal’s tortious acts, including erroneous ser-
vice of civil papers); General Statutes § 6-32 (a)
(requiring marshal to pay double damages for damages
arising from marshal’s failure to duly and promptly exe-
cute and return process); see also Miller v. Egan, 265
Conn. 301, 329–30, 828 A.2d 549 (2003) (concluding that
insurance requirement indicates that liability is mar-
shal’s personally, and not liability of state); Smith v.
Yale, 50 Conn. 526, 528 (1883) (action against sheriff
for damages arising from his deputy’s failure to make
timely demand, which resulted in creditor’s loss of secu-
rity previously acquired).
We also recognize that a fee in excess of $300,000
is quite substantial in relation to the services actually
performed by Pesiri. However, Corsair conceded at oral
argument that it would have been obligated to pay Pesiri
that same sum if National Resources had complied with
the writ upon being served. Concerns about excessive
fees in outlier cases should be directed to the legisla-
ture. The legislature could, as it has in other circum-
stances, set a cap on fees. See, e.g., General Statutes
§ 52-251c (setting caps on attorney contingency fee
agreements); see also, e.g., General Statutes § 37-3a
(setting cap on interest rates); General Statutes § 52-
572 (a) (setting cap on damages for parent of minor
tortfeasor). It would not be appropriate for this court
to allow such a concern to dictate an interpretation of
the statute, which would govern all executions, not only
those for large sums of money.9
The answer to the first certified question is: Yes.
The answer to the second certified question is: No.
No costs shall be taxed in this court to any party.
In this opinion the other justices concurred.
1
Section 52-261 has been amended twice since the revision in effect at
the time of the underlying proceeding. See, e.g., Public Acts 2016, No. 16-
64, §1. General Statutes (Rev. to 2013) § 52-261 (a) (6) was subsequently
codified at subsection (a) (F). As there is no substantive difference between
these versions of the relevant provisions for purposes of the certified issues,
we refer to the current revision.
2
In one of several decisions in the underlying action, the United States
District Court for the District of Connecticut found that National Resources
is not itself a legal entity, but instead effectively functions as the trade name
of a cluster of companies, including certain limited liability corporations
named in the writ of execution. See Corsair Special Situations Fund, L.P.
v. Engineered Framing Systems, Inc., Docket No. 3:11-CV-1980 (JCH), 2013
WL 5423677, *2 (D. Conn. September 26, 2013), aff’d, 595 Fed. Appx. 40 (2d
Cir. 2014).
3
General Statutes § 52-356a (a) provides in relevant part: ‘‘(2) The property
execution shall require a proper levying officer to enforce the money judg-
ment and shall state the names and last-known addresses of the judgment
creditor and judgment debtor, the court in which and the date on which
the money judgment was rendered, the original amount of the money judg-
ment and the amount due thereon, and any information which the judgment
creditor considers necessary or appropriate to identify the judgment debtor.
The property execution shall notify any person served therewith that the
judgment debtor’s nonexempt personal property is subject to levy, seizure
and sale by the levying officer pursuant to the execution . . . .
‘‘(3) A property execution shall be returned to court within four months
after issuance. . . .
‘‘(4) The levying officer shall personally serve a copy of the execution on
the judgment debtor and make demand for payment by the judgment debtor
of all sums due under the money judgment. On failure of the judgment
debtor to make immediate payment, the levying officer shall levy on nonex-
empt personal property of the judgment debtor, other than debts due from a
banking institution or earnings, sufficient to satisfy the judgment, as follows:
‘‘(A) If such nonexempt personal property is in the possession of the
judgment debtor, the levying officer shall take such property into his posses-
sion as is accessible without breach of the peace;
‘‘(B) With respect to a judgment debtor who is not a natural person, if
such personal property, including any debt owed, is in the possession of a
third person, the levying officer shall serve that person with a copy of the
execution and that person shall forthwith deliver the property or pay the
amount of the debt due or payable to the levying officer, provided, if the
debt is not yet payable, payment shall be made when the debt matures if
within four months after issuance of the execution . . . .
‘‘(5) Levy under this section on property held by, or a debt due from, a
third person shall bar an action for such property against the third person
provided the third person acted in compliance with the execution. . . .’’
(Emphasis added.)
4
The only discretion that we can envision a marshal exercising when
money has been collected would be the subsequent timing of paying over
the money to the creditor. However, for many years, this subject has been
addressed by another statute. See General Statutes § 6-35 (requiring state
marshal to pay over money collected by marshal within thirty days from
date of collection and prescribing interest from date of collection for non-
compliance); see also General Statutes (1902 Rev.) § 1761 (same, except
interest accrues any time after demand for payment made); Public Acts
1984, No. 84-108, § 2 (amending § 6-35 to eliminate demand requirement and
prescribe time period for payment before interest accrued). We note that,
although § 6-35 governs obligations following the execution of a levy and
clearly links the same terms at issue here—‘‘collected’’ and ‘‘paid over’’—
to actions by the marshal, we are not persuaded that a similar linkage is
compelled for purposes of fees under § 52-261 (a) (F). A deadline for payment
and a penalty for noncompliance necessarily would apply only when the
marshal has personally collected the money because there would be no
concern about untimely payment if the money were collected by the court
or judgment creditor.
5
As that procedure was not relevant to the issue in the case, the Appellate
Court noted that it took no position as to its legality or propriety. See Fair
Cadillac Oldsmobile Corp. v. Allard, supra, 41 Conn. App. 660 n.1.
6
We view this concern to be a more troubling one than the one expressed
by two members of the Second Circuit panel that construing ‘‘levy of an
execution’’ to mean proper service of the writ under the circumstances of
the present case would encourage the marshal ‘‘to do no more than serve
a writ of execution with the hope that this will be credited as the ‘levy of
an execution’ and rewarded accordingly.’’ Corsair Special Situations Fund,
L.P. v. Engineered Framing Systems, Inc., supra, 863 F.3d 182. Corsair
conceded at oral argument before this court that there was no more that
Pesiri lawfully could have done to collect the debt. When the writ authorizes
the marshal to take further measures, then he or she will not have levied
the execution merely by serving the writ. Moreover, as action by the marshal
increases the likelihood of payment, there is still a greater incentive for the
marshal to act than to do nothing and take his or her chances.
7
We note that the fee statute at the time Preston was decided expressly
referred to the officer’s collection of money. See General Statutes (1821
Rev.) tit. 83, § 12 (‘‘[f]or levying and collecting every execution, where the
money is actually collected and paid over, or where the debt is secured and
satisfied by the officer, to the acceptance of the creditor, when the amount
of the execution does not exceed [specified amount], the officer collecting
the same, shall be allowed [specified amount]’’). Because that condition had
not been satisfied in Preston, the court looked to other conditions under
which the officer could be entitled to the fee for levying the execution. See
Preston v. Bacon, supra, 4 Conn. 479–80. In the absence of legislative history
to explain the elimination of such express terms, we assume that the legisla-
ture intended to allow for a more expansive reading of the statute.
8
In the context of service of process to commence a civil action, as
opposed to service of a writ of execution, the accidental failure of suit
statute would avoid liability in most cases. See General Statutes § 52-592
(a) (‘‘[i]f any action, commenced within the time limited by law, has failed
one or more times to be tried on its merits because of insufficient service
or return of the writ due to unavoidable accident or the default or neglect
of the officer to whom it was committed . . . the plaintiff . . . may com-
mence a new action, except as provided in subsection (b) of this section,
for the same cause at any time within one year after the determination of
the original action or after the reversal of the judgment’’).
9
According to written testimony from the president of the Connecticut
State Marshal’s Association, Inc., submitted in support of the 2003 bill pro-
posing to increase the marshal’s fee from 10 percent to 15 percent, the
vast majority of executions are small and uncollectible, thus often leaving
marshals with no commission fees after investing significant time and effort.
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 2003 Sess.,
p. 1964, remarks of Robert S. Miller.